A recently licensed therapist, Joy, observes that many of her colleagues suffer from burnout. She decides to prevent this from happening to her. Joy schedules several extended vacations throughout the year and arranges for other therapists to see her clients in case of an emergency. Joy believes that this takes care of her professional responsibilities. However, none of her clients are made aware of this arrangement in the informed consent process that took place at the beginning of therapy. When she takes her vacations, she then informs her clients of her unavailability for several weeks.
In reading the case study, do you think Joy took care of her professional responsibility or do you think this was a case of client abandonment? Be sure to explain your answer.
http://www.wvbec.org/images/Implementing_Informed_Consent.pdf
Unit 4.2 DB: Online Counseling
What are your thoughts about counseling via the Internet? What specific ethical issues do you think need to be raised? How comfortable would you be in using this form of technology in your counseling practice?
In response to your peers, discuss the positive impacts of using online counseling services.
Chapter 5
Client Rights and Counselor Responsibilities
Introduction
To practice in an ethical and legal manner, the rights of clients are paramount. In this chapter we deal with ways of educating clients about their rights and respon- sibilities as partners in the therapeutic process. Special attention is given to the role of informed consent and to the ethical and legal issues that arise when therapists fail to provide sufficient informed consent. We also deal with some of the ethical and legal issues involved in counseling children and adolescents and in counseling involuntary clients.
Part of ethical practice is talking with clients about their rights. Clients are not always aware of their rights, and they may find the therapeutic process mysteri- ous. Vulnerable and sometimes desperate for help, clients may unquestioningly accept whatever their therapist says or does. Clients may see their therapist much like they see their physician and expect the therapist to have an accurate diagno- sis and an immediate solution to their problem. For most people the therapeutic situation is a new one, and they may not realize that the therapist’s duty is to help clients find their own solutions. The therapeutic process involves a collaborative endeavor in which a therapist and a client form a partnership to attain goals the client has chosen. For these reasons, the therapist is held responsible for protecting clients’ rights and teaching clients about these rights. The ethics codes of most pro- fessional organizations require that clients be given adequate information to make informed choices about entering and continuing the client–therapist relationship (see the Ethics Codes box titled “The Rights of Clients and Informed Consent” for examples from several ethics codes). By alerting clients to their rights and respon- sibilities, the practitioner is encouraging a sense of autonomy and personal power. Therapists also protect themselves from ethics complaints by informing clients of their rights and responsibilities.
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Ethics codEs: The Rights of Clients and Informed Consent
American Psychological Association (2010)
(a) When obtaining informed consent to therapy as required in Standard 3.10, Informed Consent, psychologists inform clients/patients as early as is feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality and provide sufficient opportunity for the client/patient to ask questions and receive answers.
(b) When obtaining informed consent for treatment for which generally recognized techniques and procedures have not been established, psychologists inform their clients/patients of the developing nature of the treatment, the potential risks involved, alternative treatments that may be available, and the voluntary nature of their participation. (10.01)
National Association of Social Workers (2008)
Social workers should provide services to clients only in the context of a professional relationship based, when appropriate, on valid informed consent. Social workers should
Ethics codEs: The Rights of Clients and Informed Consent continued
use clear and understandable language to inform clients of the purpose of the services, risks related to the services, limits to services because of the requirements of a third party payer, relevant costs, reasonable alternatives, clients’ right to refuse or withdraw consent, and the time frame covered by the consent. Social workers should provide clients with an opportunity to ask questions. (1.03.a.)
American Counseling Association (2014)
Counselors explicitly address with clients the nature of all services provided. They inform clients about issues such as, but not limited to, the following: the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services; the counselor’s qualifications, credentials, relevant experience, and approach to counseling; continuation of services upon the incapacitation or death of a counselor; the role of technology; and other pertinent information.
Counselors take steps to insure that clients understand the implications of diagnosis, and the intended use of tests and reports. Additionally, counselors inform clients about fees, and billing arrangements, including procedures for nonpayment of fees. Clients have the right to confidentiality and to be provided with an explanation of its limits (including how supervisors and/or treatment or interdisciplinary team professionals are involved), to obtain clear information about their records, to participate in the ongoing counseling plans, and to refuse any services or modality change and to be advised of the consequences of such refusal. (A.2.b.)
Code of Professional Ethics for Rehabilitation Counselors (CRCC, 2010)
Rehabilitation counselors recognize that clients have the freedom to choose whether to enter into or remain in a rehabilitation counseling relationship. Rehabilitation counselors respect the rights of clients to participate in ongoing rehabilitation counseling planning and to make decisions to refuse any services or modality changes, while also ensuring that clients are advised of the consequences of such refusal. Rehabilitation counselors recognize that clients need information to make an informed decision regarding services and that professional disclosure is required in order for informed consent to be an ongoing part of the rehabilitation counseling process. Rehabilitation counselors appropriately document discussions of disclosure and informed consent throughout the rehabilitation counseling relationship. (A.3.b.)
The American Mental Health Counselors Association (2015)
Mental health counselors provide information that allows clients to make an informed choice when selecting a provider. Such information includes but is not limited to: counselor credentials, issues of confidentiality, the use of tests and inventories, diagnosis, reports, billing, and therapeutic process. Restrictions that limit clients’ autonomy are fully explained. (I.B.2.a.)
American Association for Marriage and Family Therapy (2015)
Marriage and family therapists obtain appropriate informed consent to therapy or related procedures and use language that is reasonably understandable to clients. When persons, due to age or mental status, are legally incapable of giving informed consent, marriage and family therapists obtain informed permission from a legally authorized person, if such substitute consent is legally permissible. The content of informed consent may vary depending upon the client and treatment plan; however, informed consent generally necessitates that the client: (a) has the capacity to consent; (b) has been adequately informed of significant information concerning treatment processes and procedures; (c) has been adequately informed of potential risks and benefits of treatments for which generally recognized standards do not yet exist; (d) has freely and without undue influence expressed consent; and (e) has provided consent that is appropriately documented. (1.2.)
In addition to the ethical aspects of safeguarding clients’ rights, legal param- eters also govern professional practice. When we attend continuing education workshops on ethics in clinical practice, the focus is often on legal matters and risk management. Practitioners express their fears of lawsuits and are eager to learn risk management strategies that will protect them from malpractice. These concerns are realistic but need to be kept in perspective. Our emphasis should be on both nonmaleficence (avoiding doing harm) and beneficence (doing what is best for the client). Pope (2015) relates this idea specifically to record keeping. He asserts that practicing defensive record keeping—that is, making risk management one’s primary focus in record keeping and in other areas of practice—may lead clinicians to lose sight of their ethical and clinical responsibilities. When we act in the best interest of the client and can demonstrate this through a process of consultation and documentation, we are less likely to be sanctioned for ethical or legal violations.
Counseling can be a risky venture, and you must be familiar with the laws that govern professional practice. However, we hope you will avoid becoming so involved in legalities that you lose sight of the ethical and clinical implications of what you do with your clients. You will surely want to protect yourself legally, but not to the point that you immobilize yourself and inhibit your professional effectiveness.
LO1
The Client’s Right to Give Informed Consent
The first step in protecting the rights of clients is the informed consent docu- ment. Informed consent involves the right of clients to be informed about their therapy and to make autonomous decisions pertaining to it. Informed consent is a shared decision-making process in which a practitioner provides adequate information so that a potential client can make an informed decision about par- ticipating in the professional relationship (Barnett, Wise, Johnson-Greene, & Bucky, 2007). Informed consent is both an ethical and a legal obligation of the cli- nician, and providing information to clients is also a good quality enhancement strategy. Attending to informed consent not only meets legal and ethical stan- dards but represents excellent clinical care as well (Knapp et al., 2015). Informed consent for treatment is a powerful clinical, legal, and ethical tool (Wheeler & Bertram, 2015).
Mental health professionals are required by their ethics codes to disclose to clients the risks, benefits, and alternatives to proposed treatment. The intent of an informed consent document is to define boundaries and clarify the nature of the basic counseling relationship between the counselor and the client. One benefit of informed consent is that it increases the chances that clients will become actively involved, educated, and willing participants in the assessment process and in their therapy. When clients understand what is expected of them to get positive results from therapy, the therapeutic alliance is enhanced. It may not be possible or clin- ically appropriate to discuss informed consent in great detail at the first session due to the emotional state of a client. Dealing with a client’s crisis takes precedence
over a discussion of informed consent, but informed consent must be addressed as soon as it is clinically appropriate. It is crucial that topics such as the limits of confidentiality be explained at the first session, even in crisis cases. If this is not done and the client discloses a matter that must be reported, the therapist may face both legal and ethical problems.
Most professionals agree that it is crucial to provide clients with information about the therapeutic relationship, but the manner in which this is done in practice varies considerably among therapists. It is a mistake to overwhelm clients with too much detailed information at once, but it is also a mistake to withhold important information that clients need if they are to make wise choices about their therapy. The counselor must strike a balance between providing necessary information to the client and attending to the emotional state of the client.
Professionals have a responsibility to their clients to make reasonable disclo- sure of all significant facts, the nature of the procedure, and some of the more possible consequences and difficulties. Clients have the right to have treatment explained to them. The process of therapy is not so mysterious that it cannot be explained in a way that clients can comprehend how it works. For instance, most residential addictions treatment programs require that patients accept the existence of a power higher than themselves. This “higher power” is defined by the patient, not by the treatment program. Before individuals agree to entering treatment, they have a right to know this requirement. It is important that clients give their consent with understanding. Professionals need to avoid subtly coercing clients to cooperate with a therapy program to which they are not freely consenting. It is the responsibility of professionals to assess the client’s level of understanding and to promote the client’s free choice. In doing so therapists can model a social justice perspective for clients, many of whom may experience oppression and discrimina- tion. If informed consent procedures are implemented properly, open exchanges between therapists and clients are promoted that may result in empowered col- laboration, or shared decision making (Knapp & VandeCreek, 2012). Clients are empowered when they are educated about their rights and responsibilities in the therapeutic process.
Legal Aspects of Informed Consent
Generally, informed consent requires that the client understands the information presented, gives consent voluntarily, and is competent to give consent to treat- ment (Wheeler & Bertram, 2015). Therapists must give clients information in a clear way and check to see that they understand it. Disclosures should be given in simple language in a culturally sensitive manner and must be understandable to clients. To give valid consent, it is necessary for clients to have adequate informa- tion about both the therapy procedures and the possible consequences.
Educating Clients About Informed Consent
A good foundation for a therapeutic alliance is for therapists to employ an edu- cational approach, encouraging clients’ questions about assessment or treatment and offering useful feedback as the treatment process progresses. Here are some
questions therapists and clients should address at the outset of the therapeutic relationship:
• What are the goals of the therapeutic endeavor? • What are the potential risks and benefits of counseling? • What services will the counselor provide? • What are the techniques, procedures, and potential benefits and risks of the
services provided? • What is expected of the client? • What is the practitioner’s approach to counseling? • What are the qualifications of the provider of services? • What professional experience does the counselor have with the client’s
problem? • What are the financial arrangements? • To what extent is the clinician available between sessions? • How does the clinician handle missed appointments without notification? • To what extent can the duration of therapy be predicted? • What are the procedures for managing crises or severe emotional distress after
hours? • What are the limitations of confidentiality? • In what situations does the practitioner have mandatory reporting requirements?
A basic part of the informed consent process involves giving clients an oppor- tunity to raise questions and to explore their expectations of counseling. We rec- ommend viewing clients as partners with their therapists in the sense that they are involved as fully as possible in each aspect of therapy. Practitioners cannot presume that clients clearly understand what they are told initially about the ther- apeutic process. Furthermore, informed consent is not easily completed in the initial session by asking clients to sign forms. The Canadian Code of Ethics for Psy- chologists (CPA, 2015) states that informed consent involves a process of reaching an agreement to work collaboratively rather than simply having a consent form signed (Section 1.17).
The more clients know about how therapy works, including the roles of both client and therapist, the more clients will benefit from the therapeutic experience. Most of the codes of ethics make it clear that educating clients about the therapeu- tic process is an ongoing endeavor. Informed consent is not a single event; rather, it is best viewed as a process that continues for the duration of the professional rela- tionship as issues and questions arise (Barnett & Johnson, 2015; Pope & Vasquez, 2016; Wheeler & Bertram, 2015).
Clients may not feel empowered to challenge their counselor, especially in the beginning stages of treatment, due to cultural beliefs, attitudes about author- ity, or feelings of intimidation. At the beginning of the informed consent process, therapists have an opportunity to join with their clients and engage with them in forming a working alliance through the process of informed consent. This is the time to explain to clients how they can become the experts on their own lives and the implications of this at all stages of treatment.
Issues of power and control can be central in the therapy process, especially in the case of clients who have been victimized. The informed consent process can
help to minimize the power differential. The process of informing clients about therapy is geared toward making the client–therapist relationship a collaborative partnership, which is basic to effective therapy.
Informed Consent and Managed Care
Practitioners are ethically bound to offer the best quality of service available, and clients have a right to know that managed care programs, with their focus on cost containment, may influence the quality of care available. Clinicians are expected to provide prospective clients with clear information about the benefits to which they are entitled and the limits of treatment. Informed consent forms should state that the managed care company may request a client’s diagnosis, results of any tests given, a wide range of clinical information, treatment plans, and perhaps even the entire clinical record of a client. Clinicians who work in a managed care system are ethically bound to inform clients about policies that could affect them before they enter into a therapeutic relationship.
Braun and Cox (2005) recommend that clinicians inform clients about the lim- its of confidentiality and the potential repercussions of disclosing personal infor- mation to insurance providers. Clients need to understand that some services may not be covered under their insurance plans and “that the insurance plan and utilization review direct the type and length of treatment received, and that payment for treatment might be terminated before the client and/or the coun- selor believe(s) the goals of therapy have been achieved” (p. 430). Counselors under any managed care contracts should be aware of their obligations and offer acceptable alternatives to clients during the informed consent process (Nancy Wheeler, personal communication, June 28, 2016). Counselors should include a statement about the client’s ultimate responsibility for payment in case the insur- ance does not cover the services provided (Maureen Kenny, personal communi- cation, September 25, 2016).
Informed Consent in Private Practice and Agency Settings
How do practitioners assist clients in becoming informed partners? Pomerantz and Handelsman (2004) state that clients have a right to know what the therapy process entails because they are buying a service from a professional. Some of the topics they have developed include a series of questions pertaining to what therapy is and how it works, the clinician’s approach, alternatives, appointments, confidentiality, fees, procedures for filing for insurance reimbursement, and poli- cies pertaining to managed care. Pomerantz and Handelsman believe that an open discussion of a wide range of questions about the therapy process enhances the therapeutic alliance and lays the groundwork for a relationship based on empow- erment through information.
Best practice involves providing information about the therapeutic process to clients both verbally and in writing. A written consent form can augment ver- bal informed consent discussions. In many agencies, clients read and sign the informed consent form. It is a good practice for clinicians to document that they reviewed the written form with clients and answered client questions. In general,
client misunderstanding is reduced through the effective use of informed con- sent procedures. An adequate informed consent process also tends to reduce the chances a client will file a liability claim. Both the practitioner and the client benefit from this practice.
We have emphasized the importance of the therapist’s role in teaching clients about informed consent and encouraging clients’ questions about the therapeutic process. With this general concept in mind, put yourself in the counselor’s place in the following case. Identify the main ethical issues in this case, and think about what you would do in this situation.
the case of Kiara
at the initial interview the therapist, Kiara, does not provide an informed consent form and touches only briefly on the process of therapy. in discussing confidentiality, she states that whatever is said in the office will stay in the office, with no mention of the limitations of con- fidentiality. three months into the therapy, the client exhibits some suicidal ideation. Kiara has recently attended a conference at which malpractice was one of the topics of discussion, and she worries that she may have been remiss in not providing her client with adequate informa- tion about her services, including confidentiality and its limitations. she hastily reproduces an informed consent document that she received at the conference and asks her client to sign the form at the next session. this procedure seems to evoke confusion in the client, and he makes no further mention of suicide. after a few more sessions, he calls in to cancel an appointment and does not schedule another appointment. Kiara does not pursue the case further.
• • •
What are the ethical and legal implications of the therapist’s practice? explain your position. if you had been in Kiara’s situation, what could you have done?
Would you have contacted this client after he canceled? Why or why not? What are your thoughts about Kiara not doing that?
Commentary. this case illustrates the absolute importance of making sure the informed con- sent process is attended to from the outset of therapy. if we only address critical issues when they arise, clients may be justifiably angry and the quality of the therapeutic relationship may be jeopardized. Unfortunately, Kiara focused solely on her own interests in this case, and her actions may have placed her at greater risk of legal action. the belated use of an informed consent form and Kiara’s willingness to allow the client to terminate abruptly do not enhance the client’s best interests or protect him from harm. When this client canceled the appointment, Kiara had an ethical responsibility to pursue the matter to determine whether he had termi- nated therapy because of her belated attention to the informed consent process. •
Consider the following case as you think about your personal stance on what you might include in your informed consent document regarding your personal beliefs and values.
the case of derik
Derik is a counselor in a community agency setting, and he has strong religious beliefs. he is open about this in his professional disclosure statement, explaining that his religious beliefs play a major part in his personal and professional life. aida comes to Derik for counseling regarding what she considers to be a disintegrating marriage. Derik has strong convictions about preserving the family unit. after going through an explanation of the informed consent
document, Derik asks aida if she is willing to join him in a prayer for the successful outcome of the therapy and for the preservation of the family. Derik then takes a history and assures aida that everything can be worked out. he adds that he would like to include aida’s husband in the sessions. aida leaves and does not return.
• Do you see any potential ethical violations on Derik’s part?
• if Derik came to you for consultation, what would you say to him?
• is it ever appropriate to include your personal values and beliefs in the informed consent process? Do clients have a right to know your personal values? if a client asks you about your personal values or beliefs, how would you respond? how might knowing your values help or hinder your client’s work with you?
Commentary. We have some concerns with Derik’s approach to aida. he does not assess the client’s state of mind, her religious convictions, if any, the strength of her convictions, or her degree of comfort with his approach. aida may have felt pressured to agree with him in this first session, or she may not have deemed it appropriate to disagree openly. We question whether aida is able to give truly informed consent under these circumstances. it is not appro- priate for the therapist to introduce prayer into the session, even though he tells clients that this is part of his philosophy. if this is important to aida, it would be her place to introduce prayer in the session. the ethical issue is captured in this question: “Did Derik take care of the client’s needs, or did he take care of his own needs at aida’s expense?” Keep in mind that providing clear informed consent about one’s convictions does not relieve counselors of the duty to respect clients’ cultural traditions—including religious beliefs—and the prohibition regarding imposing one’s values on clients. •
LO2
The Content of Informed Consent
One of the main aims of the first meeting is to establish rapport and create a cli- mate of safety in the therapeutic situation. Realizing that informed consent is an ongoing process, the challenge is to provide clients with the right amount of infor- mation at this session for them to make informed choices. The types and amounts of information, the specific content of informed consent, the style of presenting information, and the timing of introducing this information must be considered within the context of state licensure requirements, work setting, agency policies, the specific population being served, and the nature of the client’s concerns. Coun- selors practicing online must pay careful attention to informed consent. The role and place of technology and social media must be discussed at the earliest stage of therapy (Wilcoxon, 2015). There is no assurance that practitioners can avoid legal action, even if they do obtain written informed consent. Rather than focusing on legalistic documents, we suggest that you develop informed consent procedures that stress client understanding and foster client–counselor dialogue within the therapeutic partnership.
Topics selected for discussion during early counseling sessions are best guided by the concerns, interests, and questions of the client. Although it is essen- tial to review informed consent with clients in the initial sessions, doing so only at this time is not adequate. Clients are often anxious during their first sessions and are likely to miss important details. As concerns arise in therapy, clients can
be informed about the key aspects of the informed consent process and invited to discuss relevant topics. Let’s examine in more detail some of the topics about which clients should be informed.
The Therapeutic Process
It may be difficult to give clients a detailed description of what occurs in their therapy, but some general ideas can be explored. We support the practice of letting clients know that counseling might open up levels of awareness that could cause pain and anxiety. Clients who require long-term therapy need to know that they may experience changes that could produce disruptions and turmoil in their lives. Some clients may choose to settle for a limited knowledge of themselves rather than risk this kind of disruption, and this should be explored but also respected. We believe it is appropriate to use the initial sessions for a frank discussion of how change happens. Clients should understand the procedures and goals of therapy and know that they have the right to refuse to participate in certain therapeutic techniques.
For a further discussion of change processes in therapy, an excellent book from a research perspective is The Heart & Soul of Change: Delivering What Works in Ther- apy by Duncan, Miller, Wampold, and Hubble (2010).
Assessment of a Client’s Background
It is a good practice to inform clients about the assessment process. Therapists ask many questions of clients during the intake session and the assessment process, and clients are more likely to cooperate in providing honest infor- mation if they know why they are being questioned. This first session is dif- ferent from others in that the client is being asked more questions than usual to obtain a quality assessment. This assessment often includes areas typically influencing the quality of life, such as family of origin, culture, divorce, sub- stance abuse, immigration status, traumatic events, and religious and spiritual background. Such questioning may reveal areas of a client’s life that shed light on the presenting problem, identifying areas for potential exploration during the therapy process.
Background of the Therapist
Therapists can provide clients with a description of their training and educa- tion, their credentials, licenses, any specialized skills, their theoretical orienta- tion, and the types of problems that are beyond the scope of their competence. State licensure boards often make giving this information a legal requirement. If the counseling will be done by an intern or a paraprofessional, clients must be made aware of this fact. Likewise, if the provider will be working with a supervisor, this fact should be made known to the client. This description of the practitioner’s qualifications, coupled with a willingness to answer any questions clients have about the process, reduces the unrealistic expectations clients may have about therapy; it also reduces the chances of complaints to a
licensing board and malpractice actions (Nancy Wheeler, personal communi- cation, June 28, 2016).
Costs Involved in Therapy
All costs involved in counseling or psychological services, including methods of payment, must be provided at the beginning of these services. A therapist’s pol- icy on charging for missed appointments or late cancellations should be clearly stated. Clients need to be informed about how insurance reimbursement will be taken care of and any limitations of their health plan with respect to fees. If fees are subject to change, this should be made clear in the beginning, preferably both verbally and in writing.
Most ethics codes have a standard pertaining to establishing fees. Matters of finance are delicate and, if handled poorly, can lead to problems. Clark and Sims (2014) note that the topic of setting and collecting fees tends to be difficult for some practitioners, especially those struggling with their beliefs regarding their self-worth, their sense of competency, and the value of the therapy services they offer. Practitioners new to the profession often experience a sense that they do not deserve the fees they are receiving. Family-of-origin issues also may influence therapists’ comfort levels in discussing fees. Clark and Sims point out that thera- pists who were raised to put others’ needs before their own or who were taught that discussing finances was impolite may be hesitant to broach the issue of fees because doing so is embarrassing and uncomfortable.
In establishing fees, practitioners might consider a fee range that is com- monly accepted in a given community. It is best practice to come to an agreement on fees at the beginning of a professional relationship. Matters of fees should be documented in the client’s record. Mental health practitioners put themselves and the therapeutic relationship at risk if they allow a client to accrue a large debt without discussing a plan for payment. Although therapists can initiate legal action against a client for nonpayment of fees, this is likely to damage the therapeutic relationship. It is generally not legally advisable either because it can result in the client filing a counterclaim against the counselor. The man- ner in which fees are handled has much to do with the tone of the therapeutic partnership.
Most professional codes of ethics have a pro bono guideline that encourages practitioners to share their expertise with those who cannot afford to pay for ser- vices. Individual practitioners will aspire to different standards regarding pro bono work, but denying needed services to clients as soon as their insurance has been exhausted raises concerns regarding ethical practice and standards of care. In the spirit of aspirational ethics, therapists would do well to allow for some low fee sessions in their practice. Clinicians should strive to see that clients obtain the services they need.
The Length of Therapy and Termination
Clients should be told that they can choose to terminate therapy at any time, yet it is important for the client to discuss the matter of termination with the therapist.
Part of the informed consent process involves providing clients with information about the length of treatment and the termination of treatment. Regardless of the length of treatment, it is important for clients to be prepared for a termination phase. Termination should be addressed at the outset of the professional rela- tionship and revisited at various stages of therapy, especially when termination is anticipated. An effective termination process is critical in securing trust in the overall therapy process and minimizing the return of symptoms or feelings of exploitation. Termination is a key phase of every client’s treatment, and therapists should help clients plan for it, prepare for it, and process it (Younggren, Fisher, Foote, & Hjelt, 2011).
Many agencies have a policy limiting the number of sessions provided to cli- ents. These clients should be informed at the outset that they cannot receive long- term therapy. Under a managed care system, clients are often limited to 6 sessions, or a specified amount for a given year, such as 20 sessions. The limited number of sessions needs to be brought to their attention more than once. Furthermore, clients have the right to expect a referral so that they can continue exploring what- ever concerns initially brought them to therapy. If referrals are not possible but the client still needs further treatment, the therapist should describe other alternatives available to the client.
Because practitioners differ with respect to an orientation of long-term versus short-term therapy, it is important that they inform clients of the basic assump- tions underlying their orientation. In a managed care setting, practitioners need to have expertise in assessing a client’s main psychological issues and matching each client with the most appropriate intervention. They also need to acquire compe- tency in delivering brief interventions.
Part of informing clients about the therapeutic process entails giving them rel- evant facts about brief interventions that may not always meet their needs. Clients have a right to know how their health care program is likely to influence the course of their therapy as well as the limitations imposed by the program. The managed care dictum appears to be “the shorter, the better.” Clients are vulnerable to the judgment of others (the HMO provider) regarding length of treatment, nature of treatment, techniques to be used, and content of treatment sessions. From our per- spective, the best length of treatment is the one that generates healing and client growth in the most efficient time.
Clients have a right to expect that their therapy will end when they have realized the maximum benefits from it or have obtained what they were seeking when they entered it. The therapist and the client need to explore the reality of termination early in the therapy process. As a part of the informed consent process, therapists should discuss what they expect from clients and how those expectations relate to termination. Some clinical reasons for termination—clients not making progress, the failure of clients to cooperate with the basic elements of treatment, clients not paying their therapy bills—should be discussed openly early in the therapy process (Knapp et al., 2015). Termination of therapy, with or without managed care involvement, is of critical concern in the therapeutic relationship. It demands the same kind of care and attention that initiated the professional relationship.
Consultation With Colleagues
Student counselors generally meet regularly with their supervisors and fellow stu- dents to discuss their progress and any problems they encounter in their work. It is good policy for counselors to inform their clients that they may consult with other professionals on their cases. Experienced clinicians schedule consultation meetings with their peers when they sense the need to do so. Even though it is ethical for clinicians to discuss their cases with other professionals, it is wise to routinely let clients know about this. Clients will then have less reason to feel that the trust they are putting in their counselor is being violated. When consulting with colleagues, the name of the client and other specific identifying information should not be disclosed under most circumstances.
Interruptions in Therapy
Most ethics codes specify that therapists should consider the welfare of their clients when it is necessary to interrupt or terminate the therapy process. It is a good practice to explain early in the course of treatment with clients the possi- bilities for both expected and unexpected interruptions in therapy and how they might best be handled. A therapist’s absence might appear as abandonment to some clients, especially if the absence is poorly handled. As much as possible, therapists should have a plan for any interruptions in therapy, such as vacations or long-term absences. When practitioners plan vacations, ethical practice entails providing clients with another therapist in case of need. Clients need information about the therapist’s method of handling emergencies as part of their orientation to treatment. Practitioners will need to obtain a client’s written consent to provide information to their substitutes. It is recommended that therapists include in their informed consent document the name of at least one professional colleague who is willing to assume their professional responsibilities in the event of an emergency, such as the therapist becoming incapacitated through injury or death (McGee, 2003). Contact information for the therapist’s records custodian or emergency response team also can be included in the informed consent document. For more information on this topic, we recommend Private Practice Preparedness: The Health Care Professional’s Guide to Closing a Practice Due to Retirement, Death or Disability (Wheeler & Reinhardt, 2014).
Benefits and Risks of Treatment
Clients should have some information about both the benefits and the risks associ- ated with a treatment program. Clients are largely responsible for the outcomes of therapy, so it is a good policy to emphasize the client’s responsibility. Clients need to know that no promises can be made about specific outcomes, which means that ethical practitioners avoid promising success. When therapists use nontraditional techniques, clients need to be informed about the potential risks involved. For example, clients who choose online services must be told the advantages and dis- advantages of this form of service delivery. Only then can clients decide whether this approach to therapy is right for them.
client rights and counselor responsibilities / 161 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202
Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressednformed Consent for the Provision of Psychological Services Using Telecommunication Technology
Clients have a right to know basic information about the provision of psycho- logical services that involve telecommunication technology. Some of the delivery modalities include e-therapy, videoconferencing, and text messaging. Clients need to have information regarding how they can contact the counselor electronically as part of the informed consent process. Clients should be given information about the differences between in-person services and telecommunication technology so they can make an informed decision about participating in some form of e-therapy. Murphy and Pomerantz (2016) provide a framework for facilitating and enhanc- ing the informed consent process for technologies such as interactive videocon- ferencing, email, telephone, text, and Internet. They note that clients who receive e-therapy are buying a service and have a right to raise questions such as these with the practitioner:
• What are the potential benefits and risks associated with e-therapy compared to in-person therapy?
• How can we know if in-person services are appropriate for my treatment? • How much do I need to know about technology to participate in e-therapy? • Are there limits to how and when I can electronically communicate with you? • If I begin e-therapy, can I switch to in-person treatment? • What are the fees involved for different forms of telecommunication? • Will insurance pay for e-therapy?
Drum and Littleton (2014) contend that very little attention has been paid to establishing therapeutic and professional boundaries when delivering services via telecommunication. Practitioners using telecommunication technology are advised to consider how to maintain appropriate boundaries in the relationship as a way of preventing harm and optimizing treatment gains. By being aware of potential boundary crossings in providing services via forms of telecommunica- tion, clinicians can educate clients about the unique role of maintaining profes- sional boundaries. Clinicians are challenged to ensure that services via digital technology be conducted in ways that are both ethical and efficacious.
Alternatives to Traditional Therapy
According to the ethics codes of some professional organizations, clients need to know about alternative helping systems. It is a good practice for therapists to learn about community resources so they can present these alternatives to a client. Some alternatives to psychotherapy include self-help programs, stress management, personal-effectiveness training, peer self-help groups, indigenous healing prac- tices, bibliotherapy, 12-step programs, support groups, and crisis intervention.
This information about therapy and its alternatives can be presented in writing, through an audiotape or videotape, or during an intake session. An open discussion of therapy and its alternatives may, of course, lead some clients to choose sources of help other than therapy. For practitioners who make a living providing therapy ser- vices, asking their clients to consider alternative treatments can produce financiaanxiety. However, openly discussing therapy and its alternatives may reinforce cli- ents’ decisions to continue therapy. Clients have a right to know about alternative therapeutic modalities (such as different theoretical orientations and medication) that are known to be effective with particular clients and conditions.
Recording Therapy Sessions or Live Observations
Many agencies require that interviews be recorded for training or supervision purposes. Clients must consent before a therapist or trainee may audiotape or videotape any session, and this consent must be documented in the clinical record (Nagy, 2011). Therapists sometimes make recordings because they can benefit from listening to them or by having colleagues listen to their interactions with cli- ents and give them feedback. Some agencies allow recordings, but more and more do not support this training method due to HIPPA and confidentiality concerns. In these cases, live observations may be an option for students in education pro- grams as well as those who are participating in supervision. Clients have a right to decline recordings or live observations. It is critical that clients understand why the recordings and live observations are made, how they will be used, who will have access to them, how they will be stored, and how and when recordings will be destroyed.
Clients’ Right of Access to Their Files
Clinical records are kept for the benefit of clients. Remley and Herlihy (2016) main- tain that clients have a legal right to inspect and obtain copies of records kept on their behalf by professionals. Clients have the ultimate responsibility for decisions about their own health care and, in most circumstances, also have the right of access to complete information with respect to their condition and the care pro- vided. A professional should write about a client in descriptive and nonjudgmen- tal ways with the expectation that the client may see the file someday. A clinician who operates in a professional manner should not have to worry if these notes were to become public information or were read by a client.
Some clinicians question the wisdom of sharing counseling records with a client. They may assume that their clients are not sophisticated enough to under- stand their diagnosis and the clinical notes, or they may think that more harm than benefit could result from disclosing such information to clients. Rather than auto- matically providing clients access to what is written in their files, some therapists give clients an explanation of their diagnosis and the general trend of what kind of information they are recording. Other clinicians are willing to grant their cli- ents access to information in the counseling records they keep, especially if clients request specific information. If a decision is made to show the clinical records to a client, Knapp and VandeCreek (2012) recommend that the clinician be present. Clients may misconstrue the language contained in the records unless the thera- pist is present to interpret the data.
Giving clients access to their files seems to be consistent with the consumer- rights movement, which is having an impact on the fields of mental health, coun- seling, rehabilitation, and education. One way to reduce malpractice suits and
other legal problems is to allow clients to see their medical records, even while hospitalized. In some situations it might not be in the best interests of clients to see the contents of their records. Clients requesting access to their files may be signal- ing a deeper concern, and the counselor should explore this further before grant- ing a client’s request. The clinician needs to make a professional determination of those times when seeing records could be counterproductive. Later in this chapter we discuss procedures for keeping records.
Rights Pertaining to Diagnostic Classifying
One of the major obstacles for some therapists to the open sharing of files with clients is the need to give clients a diagnostic classification as a requirement for receiving third-party reimbursement for psychological services. Some clients are not informed that they will be so classified, what those classifications are, or that the classifications and other confidential material will be given to insurance com- panies. Clients also do not have control over who receives this information. For example, in a managed care system, office workers will have access to specific information about a client, such as a diagnosis. Ethical practice includes informing clients that a diagnosis can become a permanent part of their file, and that can have ramifications in terms of costs of insurance, long-term insurability, and employ- ment. Remley and Herlihy (2016) recommend that a phrase regarding diagnosis be included in the informed consent document. They believe that counselors should disclose the diagnosis to the client when the diagnosis is placed in the client’s clin- ical record. If an initial diagnosis is later revised as a result of a reassessment of the client’s condition, this change should also be discussed with the client.
The well-documented risks of diagnosis, such as the potential of being stigma- tized at work or school, should be disclosed to clients (Kress, Hoffman, Adamson, & Eriksen, 2013). “In the short term, it might seem more beneficent to give clients information that will encourage them to receive the services they seem to need, but for some clients the long-term consequences of diagnosis may outweigh the treat- ment benefits” (p. 18). For example, it is possible that future employers or insur- ance providers may deny a person a job or insurance coverage, respectively, based on a preexisting condition that is part of the individual’s permanent record. More- over, employers may label some clients as unsuitable employees “because their mental health needs are severe or from fear that they will raise employer insurance premiums” (p. 20). Kress and colleagues advise counselors to provide their clients with the following information about the diagnostic process: (a) whether the cli- ent’s insurance provider requires a diagnosis; (b) the typical problems associated with a diagnosis; (c) the benefits of receiving a diagnosis; and (d) the options a client can pursue should he or she choose not to receive a diagnosis or not to have an insurance provider involved.
The Nature and Purpose of Confidentiality
Clients must be informed and educated about matters pertaining to confidential- ity, privileged communication, and privacy (see Chapter 6). All of the professional codes have a clause stating that clients have a right to know about any limitations
f confidentiality from the outset. The Code of Ethics of the American Mental Health Counselors Association (AMHCA, 2015) contains the following statement:
Confidentiality is a right granted to all clients of mental health counseling services. From the onset of the counseling relationship, mental health counselors inform clients of these rights including legal limitations and exceptions. (I.A.2.a.)
Putting this principle into action educates clients and promotes trust. The effec- tiveness of the client–therapist relationship is built on a foundation of trust. If trust is lacking, it is unlikely that clients will engage in significant self-disclosure and self-exploration.
Part of establishing trust involves making clients aware of how certain infor- mation will be used and whether it will be given to third-party payers. Pomer- antz and Handelsman (2004) indicate that clients have a right to expect answers from the therapist on questions such as these: “How do governmental regulations, such as federal Health Insurance Portability and Accountability Act (HIPAA) reg- ulations, influence the confidentiality of records?” “How much and what kind of information will you be required to give the insurance company?”
Traditionally, confidentiality is considered an ethical and legal duty imposed on therapists to protect client disclosures. Within a managed care context, how- ever, confidentiality may no longer be presumed in the therapeutic relationship. Clients in a managed care program need to be told that the confidentiality of their communications might well be compromised. Clients should be aware that man- aged care contracts may require therapists to reveal sensitive client information to a third party who is in a position to authorize initial or additional treatment. Clini- cians have no control over confidential information once it leaves their offices, and many managed care contracts require practitioners to submit all progress notes before payment is issued. Practitioners can no longer assure their clients of confi- dential therapy at any level.
When a practitioner contracts with a third-party payer, a client’s records come under the scrutiny and review of the system doing the reimbursing. Pope (2015) con- tends that it “may be impossible to overstate the importance and complexity of third- party issues in discussions of clinical records’ nature, purposes, content, uses and misuses, risks, and unintended effects” (p. 352). Thus some clients may want to safe- guard their privacy and confidentiality by seeking treatment that does not involve third-party reimbursement. Clients may choose to opt out of using managed care to finance their therapy when they fully understand its potential impact. This presents an ethical and legal dilemma for therapists bound by managed care contracts.
As you will see in Chapter 6, confidentiality is not an absolute. Certain circum- stances demand that a therapist disclose what was said by a client in a private ther- apy session or disclose counseling records. Fisher (2008, 2016) believes clients have a right to be informed about conditions and limitations of confidentiality before they consent to a professional relationship, regardless of the clinical consequences of that conversation. If a conversation about the nature and extent of information that may be disclosed does not take place, clients lose their right to make autono- mous decisions regarding entering the relationship and accepting the confidenti- ality risks. Fisher (2016) stresses the importance of obtaining truly informed consent, which involves far more than simply having the client sign a consent form.
The Professional’s Responsibilities in Record Keeping
From an ethical, legal, and clinical perspective, an important responsibility of mental health practitioners is to keep adequate records on their clients. The stan- dard of care for all mental health professionals requires keeping current records for all professional contacts. Many state licensing laws and regulations establish minimum guidelines for maintaining client records, but more often it is up to the discretion of the clinician to determine the content of records (Knapp & Vande- Creek, 2012).
“Clinical records hold life-changing power,” says Pope (2015, p. 348). He adds that a record’s facts, conclusions, inferences, inaccuracies, gaps, wording, and tone can all affect whether a person gets a security clearance, maintains custody of a child, receives life-saving assistance in a crisis, or gets needed accommodations for a disability in the workplace. Record keeping serves multiple purposes. The primary reasons for keeping records are to provide high-quality service for cli- ents and to maintain continuity of care when a client is transferred from one pro- fessional to another. Good record keeping also protects counselors because it can demonstrate that adequate care was provided, which could be an issue in a disci- plinary hearing. Counselors are expected to document decisions they have made and actions they have taken (Remley & Herlihy, 2016). From a clinical perspective, record keeping provides a history that a therapist can use in reviewing the course of treatment. From an ethical perspective, records can assist practitioners in pro- viding quality care to their clients. From a legal perspective, state or federal law may require keeping a record, and many practitioners believe that accurate and detailed clinical records can provide an excellent defense against certain malprac- tice claims. From a risk management perspective, keeping adequate records is the standard of care (Welfel, 2016; Wheeler & Bertram, 2015). Accurate, relevant, and timely documentation is useful as a risk management strategy.
Record Keeping From a Clinical Perspective
Maintaining clinical notes serves a dual purpose: (a) to provide the best service possible for clients, and (b) to provide evidence of a level of care commensurate with the standards of the profession. Although keeping records is a basic part of a counselor’s practice, Remley and Herlihy (2016) believe doing so should not consume too much time and energy. Remley and Herlihy suggest that it is wise for counselors to document actions they take when they are carrying out ethical or legal obligations, yet it is not appropriate for them to neglect serv- ing clients in order to write excessive notes that are basically self-protective. Practitioners need to balance client care with legal and ethical requirements for record keeping.
It is important to distinguish between progress notes and process notes. Progress notes are a means of documenting aspects of a client’s treatment and are kept in a client’s clinical record. These notes may be used to document significant issues
166 / chapter 5 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202
Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at ar concerns related to a client’s treatment. Writing progress notes can be a simple and straightforward process, and most sessions can be effectively and briefly doc- umented. Progress notes are behavioral in nature and address what people say and do. They contain information on diagnosis, functional status, symptoms, treat- ment plan, prognosis, and client progress. Here is an example of what might be recorded in a client’s progress notes:
Client reports feeling less anxious this week. Client appears fully alert and oriented and no signs of acute distress were observed. Client has been recording levels of anxiety on a daily basis, with “1” being not at all anxious and “10” being unbearably anxious. At the previous session client reported experiencing a level “7” anxiety most days of the week. This week she reports a level “4-5” anxiety. Client says the following activities have helped her to lower overall anxiety: meditation, talking with friends, taking walks, and cutting back on caffeine. She states that her goal would be to have her anxiety levels at a “3” or below in order to feel good about the outcome of therapy. Therapist and client agreed to do some guided imagery at the next session.
Process notes, or psychotherapy notes, are not synonymous with progress notes; process notes deal with client reactions such as transference and the ther- apist’s subjective impressions of a client. Other areas that might be included in the process notes are intimate details about the client; details of dreams or fantasies; sensitive information about a client’s personal life; and a therapist’s own thoughts, feelings, and reactions to clients. Process notes are not meant to be readily or easily shared with others. They are intended for the use of the prac- titioners who created them. One way of thinking about process (or psychother- apy) notes is to view them as a form of self-consultation and a way to organize ideas to bring up in supervision. As a general rule, it is best to exclude from pro- cess notes matters pertaining to diagnosis, treatment plan, symptoms, prognosis, and progress.
The law requires clinicians to keep a clinical record (progress notes) on all clients, but the law does not require clinicians to keep process (psychotherapy) notes. The HIPAA privacy rule allows clinicians to keep two sets of records, but it does not mandate it. When introduced, this HIPAA provision was “her- alded as a major benefit for mental health practitioners” (DeLettre & Sobell, 2010, p. 160), and its low utilization has been a surprise to some researchers. DeLettre and Sobell discovered that 79% of the 464 doctoral-level psychologists they surveyed were aware of the HIPAA privacy rule allowing for a separate set of notes, but only 46% reported using such notes. The idea and benefit of keeping two sets of records is that one set (progress notes) is more general, less private, and more readily accessible to insurers and clients. The other set (pro- cess or psychotherapy notes) is more private and for the use of the therapist. Psychotherapy notes may contain the therapist’s clinical hunches, matters to raise for supervision, personal reactions to the client, or hypotheses for further exploration. If a therapist does keep process notes, they must be kept separately from the individual’s clinical record. Legal requests for documentation in the context of litigation may include requests for process notes as well as progress notes, so it is prudent to consider that process notes may also someday become
the subject of courtroom scrutiny. Here is an example of what might be included in process notes:
Client avoided eye contact with counselor and sat silent for much of the session. Upon questioning, client stated that he was angry at the therapist for suggesting that he was not working hard enough in his therapy. Therapist acknowledged client’s courage in addressing his feelings and reviewed with client what was triggered in him when the therapist challenged him to be more active in treatment at a previous session. After processing further with the client, he made connections to feeling inad- equate as a child and never feeling that he was good enough for his mother. Thera- pist will follow up with client at next session to see if there are any residual feelings surrounding this encounter.
A client’s clinical record is not the place for a therapist’s personal opinions or personal reactions to the client, and record keeping should reflect professional- ism. The American Psychological Association revised its Record Keeping Guidelines (APA, 2007), originally published in 1993, to better assist psychologists in deter- mining appropriate methods for developing, maintaining, disclosing, protecting, and disposing of clinical documentation (Drogin, Connell, Foote, & Sturm, 2010). According to Drogin and colleagues, “records may serve as useful roadmaps for treatment, documenting the need for services, the treatment plan, the course of treatment, and the process of termination” (p. 237).
We offer the following guidelines in record keeping practices:
• If a client misses a session, it is a good practice to document the reasons. • In writing progress notes, use clear behavioral language. Focus on describing
specific and concrete behavior and avoid jargon. • Consider the possibility that the contents of a clinical record might someday
be read in a courtroom with the client present. • Although professional documentation is expected to be thorough, it is best to
keep notes as concise as possible. • Be mindful of the dictum, “If you did not document it, then it did not
happen.” • In the clinical record, address client and therapist behavior that is clinically
relevant. Include in clinical records interventions used, client responses to treatment strategies, the evolving treatment plan, and any follow-up mea- sures taken.
Some therapists choose to devote their time to delivering service to clients rather than recording process and progress notes. However, these notes are an important part of practice. At times, therapists may operate on the assumption that keeping clinical records is not an effective use of the limited time they have, which means they would likely adopt a minimalist approach to record keeping. Clinicians may not keep notes because they believe that they can remember what clients tell them, because they are concerned about violating a client’s confidentiality and privacy, because they do not want to assume a legalistic stance in their counseling practice, or because they think they do not have time to keep notes on their clients. Regardless of the reason for not keeping records, in today’s climate this is inexcusable and violates the common standards of
practice. Keeping records is no longer a voluntary task; it is now an ethical, clinical, and legal requirement.
As mentioned earlier, providing clients with access to their files and records seems to be in line with the consumer-rights movement, which is having an impact on the human service professions. Reflect on these questions:
• What are your thoughts on providing your clients with this information? • What information would you want to share with your clients? • How would you provide clients with this information? • What might you do if there were a conflict between your views and the poli-
cies of the agency that employed you?
the case of Maxim
Maxim is a therapist in private practice who primarily sees relatively well-functioning clients. he considers keeping records to be basically irrelevant to the therapeutic process for his clients. as he puts it: “in all that a client says to me in one hour, what do i write down? and for what purpose? if i were seeing high-risk clients, then i certainly would keep notes. Or if i were a psy- choanalyst, where everything a client said matters, then i would keep notes.” One of his clients, Lucia, assumed that he kept notes and one day after a session asked to see her file. Maxim had to explain his lack of record keeping to Lucia.
• What do you think of Maxim’s attitude on record keeping? Do you consider it unethical? Why or why not?
• taking into consideration the kind of clientele Maxim sees, is his behavior justified? if you disagree, what criteria would you use in determining what material should be recorded?
• What if a legal issue arises during or after Lucia’s treatment? how would documenting each session help or not help both the client and the counselor?
• assuming that some of Maxim’s clients will move to other locales and see new therapists, does the absence of notes to be transferred to the new therapist have ethical or clinical implications?
• if keeping notes were not mandated, would you still keep notes? Why or why not?
Commentary. Keeping adequate clinical records is a legal and ethical requirement regardless of the degree of functioning of a client. Keeping notes is a requirement for third-party pay- ments as well. note taking is a critical component of therapy; it can help the therapist remem- ber relevant information and is useful as a review of clinical procedures used with a client. few therapists, if any, can remember everything that is covered in a given session over the course of time. Maxim may have to justify in a courtroom how his decision not to keep clinical records affected the standard of care for his clients. bennett and colleagues (2006) remind us that the legal requirement for maintaining clinical records involves much more than following a set of arbitrary rules: “good documentation demonstrates that you used a reasonable standard of care in conceptualizing, planning, and implementing treatment” (p. 34). good documentation is also critical for clinicians who work in agencies. a client may come to the agency in an emer- gency, and his or her treating clinician may not be available. the clinician who sees this client would benefit from reviewing the treating clinician’s documents to appropriately understand and conceptualize what the client needs. •
client rights and counselor responsibilities / 169 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202
Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequenRecord Keeping From a Legal Perspective
According to Rivas-Vazquez and his colleagues (2001), the adage “if it is not documented, it did not happen” has never been more relevant than in a climate of heightened awareness of potential liability exposure. These authors outline the specific domains required for comprehensive documentation practices. Pro- fessional ethics codes also outline the requirements of good record keeping (see the Ethics Codes box titled “Record Keeping”), and as noted earlier, the Ameri- can Psychological Association has updated its Record Keeping Guidelines as well (APA, 2007).
170 / chapter 5 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202
Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Ethics codEs: Record Keeping
Code of Professional Ethics for Rehabilitation Counselors (CRCC, 2010)
Rehabilitation counselors include sufficient and timely documentation in the records of their clients to facilitate the delivery and continuity of needed services. Rehabilitation counselors take reasonable steps to ensure that documentation in records accurately reflects progress and services provided to clients. If errors are made in records, rehabilitation counselors take steps to properly note the correction of such errors according to agency or institutional policies. (B.6.a.)
American Mental Health Counselors Association (2015)
Mental health counselors create and maintain adequate clinical and financial records. (a) Mental health counselors create, maintain, store, transfer, and dispose of client
records in ways that protect confidentiality and are in accordance with applicable regulations or laws.
(b) Mental health counselors establish a plan for the transfer, storage, and disposal of client records in the event of withdrawal from practice or death of the counselor that maintains confidentiality and protects the welfare of the client. (E.1.)
National Association of Social Workers (2008)
(a) Social workers should take reasonable steps to ensure that documentation in records is accurate and reflects the services provided.
(b) Social workers should include sufficient and timely documentation in records to facilitate the delivery of services and to ensure continuity of services provided to clients in the future.
(c) Social workers’documentation should protect clients’privacy to the extent that is possible and appropriate and should include only information that is directly relevant to the delivery of services.
(d) Social workers should store records following the termination of services to ensure reasonable future access. Records should be maintained for the number of years required by state statutes or relevant contracts. (3.04.)
American Psychological Association (2010)
Psychologists create, and to the extent the records are under their control, maintain, disseminate, store, retain, and dispose of records and data relating to their professional and scientific work in order to (1) facilitate provision of services later by them or by other professionals, (2) allow for replication of research design and analyses, (3) meet institutional requirements, (4) ensure accuracy of billing and payments, and (5) ensure compliance with law. (6.01)
Guidelines for Records With Violent or Aggressive Clients It is a wise policy for counselors to document their actions in crisis situations such as cases involving potential danger of harm to oneself, others, or physical property. Reeves (2011) offers some useful guidelines for nurses for recording the use of physical restraint with violent or aggressive patients. These guidelines were specifically devised to be used on child and adolescent inpatient units; however, they could be applied more broadly to other clinical settings in which clients become aggressive. Reeves states that a record of an incident should be made available within 24 hours of its occurrence. Some issues that should be documented include the following:
• Events leading up to the incident, including the client’s behavior and others’ responses to this behavior
• Alternative strategies attempted and any departures from the plan of care • Rationale for using physical interventions and the risks involved • Methods and duration of each restraint used • Difficulties encountered in monitoring the client’s physical well-being and
actions taken as a result of these difficulties • How the restraint ended
Guidelines for Maintaining Adequate Clinical Records Wheeler and Bertram (2015) state that practitioners who fail to maintain adequate clinical records are vulnerable to claims of professional malpractice because inadequate records do not conform to the standard of care expected of mental health practitioners. They maintain that competent record keeping is one of the most effective tools coun- selors have for successfully responding to licensing board complaints or threats of a malpractice suit. Even if a mental health provider acts reasonably and keeps good records, there is no guarantee that he or she will not be sued. Occasionally a competent practitioner will be found liable for damages.
Case notes should never be altered or tampered with after they have been entered into the client’s record. Tampering with a clinical record after the fact can cast a shadow on the therapist’s integrity in court. Enter notes into a client’s record as soon as pos- sible after a therapy session, and sign and date the entry. If you keep client notes in a computer, it is essential that your program has a time and date stamp so that if your records are subpoenaed there will be no question of altering material at a later date.
The content and style of a client’s records are often determined by agency or institutional policy, state counselor licensing laws, or directives from other regu- latory bodies. The particular setting and the therapist’s preference may determine how detailed the records will be. The APA (2007) lists the following content areas for inclusion in record keeping:
• Identifying data • Fees and billing information • Documentation of informed consent • Documentation of waivers of confidentiality • Presenting complaint and diagnosis • Plan for services
• Client reactions to professional interventions • Current risk factors pertaining to danger to self or others • Plans for future interventions • Assessment or summary information • Consultations with or referrals to other professionals • Relevant cultural and sociopolitical factors
Guidelines for Keeping Records With Couples, Families, and Groups The Record Keeping Guidelines (APA, 2007) also document procedures for practition- ers working with multiple individuals in couples, family, or group therapy. When therapists work with multiple clients, the issues involved in record keeping can become complex (Drogin et al., 2010). Disclosure of information on one client may compromise the confidentiality of other clients. It may be useful to create and maintain a separate record for each person participating in group therapy. Drogin and his colleagues suggest that critical issues relevant to individual group mem- bers be documented in their individual files.
When counseling a couple or a family, the identified client may be the system, in which case a practitioner might keep a single record for the couple or the fam- ily. In counseling couples, whether records are kept on individuals or a conjoint record is maintained depends on a number of factors. Various jurisdictions have different record keeping requirements. This matter is also determined to some extent by whether the couple is the client or each individual is a separate client. If the couple is considered the client, there is a basis for a single record (Harway, Kadin, Gottlieb, Nutt, & Celano, 2012). Drogin and his colleagues (2010) note that “experienced psychologists usually develop a philosophy of documentation for couple and family psychotherapy that fits their own treatment model and practice settings” (p. 241). They acknowledge that it may be crucial to document “relational data” in their client records, not simply clinical information specific to individual clients. They believe it is “imperative to inform each party about record mainte- nance and who will have access to information” when treating multiple clients, whether in a group therapy context or a couples or family therapy context (p. 241). This discussion should take place at the outset of services.
Record Keeping for Managed Care Programs
Practitioners working within a managed care setting are required to maintain ade- quate documentation of treatment services. A managed care program may audit a practitioner’s reports at any time. By law, managed care practitioners are required to keep accurate charts and notes and must provide this information to authorized chart reviewers.
Case law, licensure board statutes and rules, and Medicare/Medicaid reim- bursement regulations all contribute to defining the minimum information that mental health records must contain in the managed care context. This informa- tion includes the following: client-identifying information; client’s chief com- plaints, including pertinent history; objective findings from the most recent physical examination; intake sheet; documentation of referrals to other providers, when appropriate; findings from consultations and referrals to other health care
workers; pertinent reports of diagnostic procedures and tests; signed informed consent for treatment form; diagnosis, when determined; prognosis, including significant continuing problems or conditions; the existence of treatment plans, containing specific target problems and goals; signed and dated progress notes; types of services provided; precise times and dates of appointments made and kept; termination summary; the use and completion of a discharge summary; and release of information obtained. A managed care company may demand a refund for services rendered if the records do not contain a complete description of all the services rendered.
Record Keeping for School Counselors
In some counseling settings, it may be difficult to keep up with record keeping. For example, in school counseling a student-to-counselor ratio of 400:1 (or more) is not uncommon. How realistic is it to expect a school counselor to keep detailed notes on every contact with a student? Birdsall and Hubert (2000) indicate that a well- kept record may be useful to demonstrate that the quality of counseling provided was in line with an acceptable standard of care. Keeping records is particularly important in cases involving moderate to severe social or emotional problems or when students may be at risk of suicide (Remley, 2009). Maintaining records on parent contacts is also essential. School counselors are cautioned about the impor- tance of safeguarding the confidentiality of any records they keep. Many schools maintain a computer-based note system where the school counselor can easily log contacts without much detail (Maureen Kenny, personal communication, Septem- ber 25, 2016).
The Ethical Standards for School Counselors (ASCA, 2016) addresses the issue of student records:
School counselors abide by the Family Educational Rights and Privacy Act (FERPA), which defines who has access to students’ educational records and allows parents the right to review and challenge perceived inaccuracies in their child’s records. (A.12.a.)
School counselors need to understand the provisions of the Family Educa- tional Rights and Privacy Act of 1974. This federal law requires that schools receiv- ing federal funds provide access to all school records to parents of students under the age of 18 and to students themselves once they reach 18. This law outlines a method for releasing records to clients. Student records are not to be released to third parties without the written consent of parents of minors, or the written con- sent of adult students (Remley & Hermann, 2000).
Securing Records Now and in the Future
Clients’ records must be handled confidentially. ACA’s (2014) Code of Ethics provides guidelines for storing, transferring, sharing, and disposing of clinical records (see sections B.6.g. and B.6.h.). Counselors have the responsibility for storing client records in a secure place and exercising care when sending records to others by mail or through electronic means. Due to technological innovations in the production, storage, protection, and retrieval of digital information over
the past several years, this seemingly straightforward issue has become increas- ingly complex. Pope (2015) believes that to “create a sound approach to clini- cal records, professionals must do a better job of recognizing and responding proactively to threats to confidentiality” (p. 348). He echoes the view shared by others that “these threats may come from the rapidly evolving technologies used to record, store, and communicate clinical information” (p. 348). He adds that threats to confidentiality may come from a number of sources including adver- tisers, industries, credit companies, government agencies, and thieves looking for access to confidential information to use for their own self-interests. Pope cautions us that threats may result from our failure to adequately safeguard clin- ical records.
Technological advances such as “cloud” computing have occurred at break- neck speed in recent years. Although counselors may enjoy the benefits of this technology (for example, improved service delivery), helping professionals who utilize the cloud as an off-site storage tool may be exposing themselves and their clients to unforeseen risks. “As records are moved to the cloud, psychologists’ [and other practitioners’] ability to exert control over them may diminish to some unknown degree. . . . Furthermore, the aggregation of sensitive data in such large centers may increase the appeal for potential cybercriminals to steal the infor- mation” (Devereaux & Gottlieb, 2012, p. 629). Data may be encrypted to reduce this risk, but other technical difficulties are possible such as technical support staff working for the cloud service provider having access to confidential client data. To learn more about record keeping in the cloud and steps that can be taken to reduce the threats associated with cloud computing, refer to Devereaux and Gottlieb (2012).
Be aware that the information in the client’s record belongs to the client, and a copy may be requested at any time. It is mandatory to treat clients in an honest and respectful fashion, and it is expected that accurate records will be kept. Mental health practitioners bear the ultimate responsibility for what they write, how they store and access records, what they do with these records, and when and how they destroy them (Nagy, 2005). Clinicians are ethically and legally required to keep records in a secure manner and to protect client confidentiality. They are also responsible for taking reasonable steps to establish and maintain the confidential- ity of information based on their own delivery of services, or the services provided by others working under their supervision.
Practitioners need to consider relevant state and federal laws and the policies of their work setting in determining how long to retain a client’s records. It is key to determine the specific time period for retention of records that is required by the jurisdiction in which you practice. Whether records are active or inactive, counselors are expected to maintain and store them safely and in a way in which timely retrieval is possible. Extra care should be taken if information is stored electronically.
It is wise to think about what will happen to your clinical records after your death or if you are otherwise incapacitated. Most state laws do not specify how records are to be handled upon a therapist’s death, so while you are still able to be involved in the decision making, consider creating a professional will that names another professional who, at least temporarily, will handle your files and
clients if you die or become otherwise incapacitated. Here are some questions to consider:
• Who will have access to your clinical records in the event of your death? • Have you identified a colleague in your area who is willing to take over your
practice in the case of your death?
It is important to answer these questions to safeguard your estate. A client can bring suit against your estate after your death if you have failed to consider some of these matters. Even death does not shield us from a malpractice suit! (See Wheeler & Reinhardt, 2014.)
LO4
Ethical Issues in Online Counseling
In this section we consider a few key ethical issues in the use of online counseling and the many forms of service delivery via the Internet. Mental health profession- als now have a wide range of digital and electronic options to communicate with and to provide a range of clinical services to their clients, some of which include audio recordings, email chat, videochat, social networking websites, text messag- ing, self-guided Web-based interventions, and smartphone apps (Reamer, 2017).
Haberstroh, Barney, Foster, and Duffey, (2014) explored the scope of ethical and legal practice for online psychotherapy for the major mental health profes- sions. They observed a trend toward more states and professions endorsing online therapy as a treatment modality. Only a few state regulatory boards address online clinical practice through state laws or ethics codes, but Haberstroh and his col- leagues found that no states actually prohibited it. This rapidly developing field involves both benefits and risks, and just as with any new practice area, practition- ers have an obligation to consider the best interests of the client, to strive to do no harm, and to adhere to legal requirements. Mental health professionals have the responsibility of evaluating the ethical, legal, and clinical issues related to pro- viding counseling and behavioral services to individuals over a distance (Mallen, Vogel, & Rochlen, 2005). Ethical issues such as informed consent, confidentiality, privacy, self-disclosure, boundaries, and multiple relationships can have special significance when Internet technologies are involved. A significant ethical concern pertains to who is actually on the other end when providing distance counseling. Mental health professionals must make decisions about how they wish to incor- porate technology in the delivery of services in their practices, and these decisions should be informed by the standards set forth by the professional associations to which they belong.
Ethics Codes and Technology
The Code of Ethics of the American Mental Health Counselors Association (AMHCA, 2015) includes guidelines for online counseling that address issues pertaining to confidentiality, client and counselor identification, client waiver, establishing the online counseling relationship, competence, and legal considerations. The APA (2010) ethics code states that psychologists who offer online services inform clients
of the risks to privacy and the limits of confidentiality. The ACA (2014) ethics code states that counselors are expected to inform clients of the benefits and limitations of using technology in the counseling process.
The AAMFT (2015) ethics code has the following guideline for electronic therapy:
Prior to commencing therapy services through electronic means (including but not limited to phone and Internet), marriage and family therapists ensure that they are compliant with all relevant laws for the delivery of such services. Addition- ally, marriage and family therapists must: (a) determine that electronic therapy is appropriate for clients, considering professional, intellectual, emotional, and physical needs; (b) inform clients or supervisees of the potential risks and benefits associated with technologically-assisted services; (c) ensure the security of their communication medium; and (d) only commence electronic therapy or services after appropriate education, training, or supervised experience using the relevant technology. (6.1.)
Emerging Issues in Online Counseling
The ethics of online therapy are vigorously debated in the profession, with major cautions centering on its value for clients experiencing significant psy- chological distress, recurrent psychopathology, and suicidal or homicidal intent. The application of the standard regarding the duty to protect when a client discloses threats of harm to self or others via email or another electronic medium is an issue receiving thoughtful attention (Welfel, 2009). From a risk management perspective, Rummell and Joyce (2010) point out that clinicians who conduct online counseling need to know the true identity and location of their clients in the event of an emergency, such as the ones mentioned here. Although acknowledging the benefits of online counseling, they identify many ethical challenges that must be considered when engaging in online counsel- ing. Competence to provide online counseling is a fundamental ethical con- cern. Practitioners need to develop the skills and competencies necessary to facilitate a meaningful and viable therapeutic relationship online. The “endur- ing challenge in social work [and other helping professions] is to locate and walk what can be a fine line between valuable innovation that has therapeutic benefits and harmful, possibly exploitative, treatment of vulnerable clients” (Reamer, 2013, p. 171).
Reamer (2013) stresses that ethical mistakes in the delivery of online services can occur by either omission or commission. Examples of mistakes of omission include the failure to:
• Obtain clients’ fully informed consent before providing online services • Limit clients’ access to personal information on the clinician’s social network-
ing site • Obtain a clinical license to practice in the state in which the client resides • Comply with HIPAA confidentiality requirements pertaining to electronic
communications • Respond in a timely manner to clients’ text or email messages
Examples of mistakes of commission include:
• Terminating online services to clients abruptly • Claiming expertise in providing online services outside the scope of one’s
education and training • Providing online services to clients whose clinical needs are so severe that they
require in-person services
Advantages and Disadvantages of Online Counseling
Most experts agree that Internet counseling cannot be considered traditional psy- chotherapy, but some believe this form of service delivery may benefit consumers who are reluctant to seek more traditional treatment. The benefits of online inter- ventions are vast because of the potential for greater numbers of people to receive services. Reamer (2017) reports that research is demonstrating the effectiveness of distance counseling with a variety of populations and conditions. Proponents make a case for the capacity of digital technology to reach and enhance the delivery of services to vulnerable people. For example, Web-based treatment interventions offer an opportunity for practitioners to provide specific behavioral treatments tailored to individuals who may need to seek professional assistance from their own homes. Clients with certain disabilities or chronic illnesses that render them immobile could find online counseling beneficial. Kolmes (2017) claims that “the explosion of social media culture is opening up new opportunities for connection for psychotherapists and their clients” (p. 193). Rummell and Joyce (2010) state that “one of the most commonly described benefits of online counseling is that it allows the clinician to access hard to reach populations, such as those in a rural or otherwise remote environment where a trip to a psychological clinic is difficult, unrealistic, or impossible” (p. 484). One study on Australian adolescents’ preferred modes of delivery for mental health services found that only 16% favored online treatment; those who expressed a preference for this modality emphasized benefits such as remaining anonymous, finding information easily accessible online, and finding others in chat rooms who had similar experiences (Bradford & Rickwood, 2014). Glasheen, Shochet, and Campbell’s (2016) study of Australian secondary school students found that more than 80% claimed they would definitely use or might use online services offered by the school counselor, especially to deal with concerns of a sensitive or personal nature such as sexuality. One possible benefit of discussing personal issues online is that students with concerns about their sexu- ality can control their visibility.
Ravis (2007) contends that the benefits of distance counseling outweigh the risks. With adequate preparation, support, and resourcefulness, counselors may find that the challenges involved in distance counseling are less daunting than might be imagined. Ravis offers some suggestions for counselors considering online counseling:
• Before offering distance counseling, acquire the appropriate competencies related to this evolving specialty.
• Learn how to adapt traditional methods for effective application to distance counseling.
of the risks to privacy and the limits of confidentiality. The ACA (2014) ethics code states that counselors are expected to inform clients of the benefits and limitations of using technology in the counseling process.
The AAMFT (2015) ethics code has the following guideline for electronic therapy:
Prior to commencing therapy services through electronic means (including but not limited to phone and Internet), marriage and family therapists ensure that they are compliant with all relevant laws for the delivery of such services. Addition- ally, marriage and family therapists must: (a) determine that electronic therapy is appropriate for clients, considering professional, intellectual, emotional, and physical needs; (b) inform clients or supervisees of the potential risks and benefits associated with technologically-assisted services; (c) ensure the security of their communication medium; and (d) only commence electronic therapy or services after appropriate education, training, or supervised experience using the relevant technology. (6.1.)
Emerging Issues in Online Counseling
The ethics of online therapy are vigorously debated in the profession, with major cautions centering on its value for clients experiencing significant psy- chological distress, recurrent psychopathology, and suicidal or homicidal intent. The application of the standard regarding the duty to protect when a client discloses threats of harm to self or others via email or another electronic medium is an issue receiving thoughtful attention (Welfel, 2009). From a risk management perspective, Rummell and Joyce (2010) point out that clinicians who conduct online counseling need to know the true identity and location of their clients in the event of an emergency, such as the ones mentioned here. Although acknowledging the benefits of online counseling, they identify many ethical challenges that must be considered when engaging in online counsel- ing. Competence to provide online counseling is a fundamental ethical con- cern. Practitioners need to develop the skills and competencies necessary to facilitate a meaningful and viable therapeutic relationship online. The “endur- ing challenge in social work [and other helping professions] is to locate and walk what can be a fine line between valuable innovation that has therapeutic benefits and harmful, possibly exploitative, treatment of vulnerable clients” (Reamer, 2013, p. 171).
Reamer (2013) stresses that ethical mistakes in the delivery of online services can occur by either omission or commission. Examples of mistakes of omission include the failure to:
• Obtain clients’ fully informed consent before providing online services • Limit clients’ access to personal information on the clinician’s social network-
ing site • Obtain a clinical license to practice in the state in which the client resides • Comply with HIPAA confidentiality requirements pertaining to electronic
communications • Respond in a timely manner to clients’ text or email messages
Examples of mistakes of commission include:
• Terminating online services to clients abruptly • Claiming expertise in providing online services outside the scope of one’s
education and training • Providing online services to clients whose clinical needs are so severe that they
require in-person services
Advantages and Disadvantages of Online Counseling
Most experts agree that Internet counseling cannot be considered traditional psy- chotherapy, but some believe this form of service delivery may benefit consumers who are reluctant to seek more traditional treatment. The benefits of online inter- ventions are vast because of the potential for greater numbers of people to receive services. Reamer (2017) reports that research is demonstrating the effectiveness of distance counseling with a variety of populations and conditions. Proponents make a case for the capacity of digital technology to reach and enhance the delivery of services to vulnerable people. For example, Web-based treatment interventions offer an opportunity for practitioners to provide specific behavioral treatments tailored to individuals who may need to seek professional assistance from their own homes. Clients with certain disabilities or chronic illnesses that render them immobile could find online counseling beneficial. Kolmes (2017) claims that “the explosion of social media culture is opening up new opportunities for connection for psychotherapists and their clients” (p. 193). Rummell and Joyce (2010) state that “one of the most commonly described benefits of online counseling is that it allows the clinician to access hard to reach populations, such as those in a rural or otherwise remote environment where a trip to a psychological clinic is difficult, unrealistic, or impossible” (p. 484). One study on Australian adolescents’ preferred modes of delivery for mental health services found that only 16% favored online treatment; those who expressed a preference for this modality emphasized benefits such as remaining anonymous, finding information easily accessible online, and finding others in chat rooms who had similar experiences (Bradford & Rickwood, 2014). Glasheen, Shochet, and Campbell’s (2016) study of Australian secondary school students found that more than 80% claimed they would definitely use or might use online services offered by the school counselor, especially to deal with concerns of a sensitive or personal nature such as sexuality. One possible benefit of discussing personal issues online is that students with concerns about their sexu- ality can control their visibility.
Ravis (2007) contends that the benefits of distance counseling outweigh the risks. With adequate preparation, support, and resourcefulness, counselors may find that the challenges involved in distance counseling are less daunting than might be imagined. Ravis offers some suggestions for counselors considering online counseling:
• Before offering distance counseling, acquire the appropriate competencies related to this evolving specialty.
• Learn how to adapt traditional methods for effective application to distance counseling.
• Screen clients for suitability with respect to the specific distance services you are considering using.
• As a part of informed consent, educate your clients about the difficult situa- tions that may occur during distance counseling.
• Familiarize yourself with the ethical guidelines that have been developed to inform your specific scope of practice.
• Be aware of the legal issues and state licensure board regulatory policies that govern your specific practices when delivering online counseling.
Simply having a technology available does not mean that it is appropriate for every client, or perhaps for any client. The potential benefits need to be greater than the potential risks for clients to ethically justify any form of technology that is used for counseling purposes. Here are some of the disadvantages in the use of online and distance counseling:
• Inaccurate diagnosis or ineffective treatment may be provided due to lack of behavioral clues and the lack of nonverbal information.
• Confidentiality and privacy cannot be guaranteed; digital technology expands the ways clients’ privacy and confidentiality can be breached (Reamer, 2017).
• Therapists’ duty to warn or protect others is limited. • Clients who are suicidal, suffering extreme anxiety or depression, or who are
in crisis may not receive adequate immediate attention. • Some online service providers may not be qualified to provide competent ser-
vices and may misrepresent themselves and their qualifications. • Clinicians’ use of digital technology introduces some complex challenges to
therapeutic boundaries, especially multiple relationships (Reamer, 2017). • Anonymity enables minors to masquerade as adults seeking treatment and
enables other clients to misrepresent themselves as well. • It is possible for individuals other than the client to log on and engage in a
session, as if they were the client. • Transference and countertransference issues are difficult to address. • It is difficult to develop an effective therapeutic alliance with an individual
who has never been seen in the traditional face-to-face counseling context. • Distance counseling services may not be appropriate for clients with very
complex or long-term psychological problems (Reamer, 2017).
Shaw and Shaw (2006) point out that the debate on the usefulness of online counseling will continue until there are adequate data on outcome effectiveness for this medium. They suggest that informed consent documents state that online counseling is not a replacement for traditional face-to-face counseling, but it may be a useful supplement to traditional ways of delivering counseling services.
Legal Issues and Regulation of Online Counseling
LO5
Because providing counseling services over the Internet (also known as remote services or distance counseling) is relatively new and controversial, a host of legal questions will not be addressed until lawsuits are filed pertaining to its use, or misuse, in counseling practice. One of the most pressing issues regarding the use of remote services or Internet counseling is whether it is legal for a mental health
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A clinician’s license is intended for practice in the state where he or she is licensed to practice. Some states have ruled that licensed mental health profes- sionals cannot practice online counseling in states in which they are not licensed. However, this is a complex matter, and some state licensing laws are archaic and do not recognize contemporary digital realities (Zur, 2016). Counselors need to stay current regarding the changing laws pertaining to counseling across states. Counselors are advised to check the laws both in the state where they practice and in the state where their client is located. Check with legal counsel or one’s licen- sure board before engaging in online counseling or telephone counseling with out- of-state clients. It is a good idea for counselors also to check with their malpractice insurance carrier if they plan to engage in these activities. According to Zur, the state in which the client resides is more likely to be concerned about whether its laws were violated by a therapist who is not licensed in that state. Licensing boards have a legal mandate to protect consumers who live in their state; they do not have an obligation to consumers who do not reside in their state.
Can clients who cross state lines receive professional services via a telephone or video session when they have a matter they want to discuss with their thera- pist without jeopardy to the practitioner? According to Leslie (2016), clients have a right to expect that their therapist will continue to be available during the course of the professional relationship, especially during a crisis situation or in times of need, even when temporarily out of state. Leslie criticized a licensing board that pub- lished a notice to California consumers that if they are traveling to another state and want to participate in counseling via the telephone (or online) with their California- licensed therapist, the therapist needs to check with the state where clients are tem- porarily located to see if this is permitted. Leslie contends that this notice is contrary to decades of safe and ethical practice nationwide in which clients’ best interests are given priority and continuity of care with their therapist of choice is expected.
To address barriers to providing psychological services across geographical boundaries, a movement has been initiated to make clinical licensure for psy- chologists transferable and valid in all 50 states. Some progress is being made on this front. In July 2012 the Association of State and Provincial Psychology Boards (ASPPB) announced that it had received a licensure portability grant from the fed- eral government to fund development and implementation of the ASPPB Psychol- ogy Licensure Universal System (PLUS). Once jurisdictional issues are ironed out by the state licensing boards, therapists who choose to offer professional services online will have to give careful thought to ways of limiting their legal liability and to reducing potential harm to their clients.
Harris and Younggren (2011) note that an abundance of literature addresses how the electronic age has created new and improved ways to deliver health care services. They cite studies that challenge the assumption that in-person psycho- therapy is superior to remote treatment. However, if the psychological commu- nity is to make full use of the services of the electronic world, they believe mental health practitioners must address a host of ethical and legal issues and assess the risks associated with delivering services via electronic means. Harris and Young- gren believe practitioners interested in risk management will choose in-person
delivery, unless a case can be made for relying on remote services. They identify the following situations that justify the use of remote services consistent with eth- ical practice and in keeping with regulatory standards:
• When service is provided in the context of an existing therapy relationship • When in-person treatment is either difficult or impossible to access due to cli-
ent’s remote location • When remote services offer practical advantages over in-person treatment
(such as clients’ busy schedule make remote sessions more efficient) • When the client desires remote sessions and the therapist has sufficient informa-
tion about the client to determine that this is a rational and informed decision
Harris and Younggren (2011) maintain that if the client does not have a past rela- tionship with the therapist and lives in an area in which many therapists have similar skills, referral to local resources is the prudent approach to take from a professional and risk management perspective. “A proper analysis of risk should lead to a delivery model that is ethically sound, consistent with standards of pro- fessional practice, and respectful of the law” (p. 416).
Use of Smartphones
The smartphone has been used more and more over the past few years by mental health providers. Increasingly, clinical programs are encouraging or even requir- ing clients to download apps on their smartphones to record information about their clinical symptoms, moods, and behaviors; to obtain psychoeducation infor- mation or automated messages from clinicians (e.g., supportive messages); and to obtain links to local resources, such as the locations of nearby 12-step meetings (Reamer, 2015).
From an ethical perspective, smartphone use may have unintended conse- quences, so psychotherapists must assess whether smartphones are a useful and appropriate adjunct to treatment on a client-by-client basis. Some clients may become overly dependent on their smartphones, which could result in increased anxiety when they are without these devices.
Eonta and colleagues (2011) build a case for ways that technology can lead to better and more accessible client care. The smartphone is just one example of a widely available technology that can individualize the nature of client care and can tailor assessment and treatment strategies to the needs and preferences of each client. They issue the caution that “it is crucial to remain flexible and creative as psychotherapists in order to ensure that our interventions and assessments are best suited to the clients we treat, and that we are not using a ‘one size fits all’ approach to client care. Technology is one way of individualizing treatment and increasing efficiency of the treatment approaches we use” (p. 519).
Competent Counseling Online
Competence is a basic ethical issue when practitioners provide remote services. If complaints are filed, professionals who provide remote services will have to demonstrate competence in both the services they offer and the technology they
are using to render services. Practitioners need to determine what kinds of ser- vices they can and cannot appropriately offer, and they need to assess the benefits and risks of delivery of services remotely. Therapists who choose to counsel cli- ents online should acquire special training to become competent. In addition to acquiring technical competence, Kolmes (2012) contends that clinicians must gain a deeper understanding of how clients use and experience social networking sites. She notes:
The cultural divide between digital natives and digital immigrants may make it more difficult for some clinicians to understand individuals who are dealing with challenges related to the merging of social, professional, and support networks in online spaces. (p. 610)
Therapists who are involved in online counseling must anticipate problems with technologically unsophisticated clients. For example, therapists should address the limitations of confidentiality and discuss what actions might be taken in the event that confidentiality is compromised. Therapists can also discuss with the client, in advance, what to do during service disruptions, such as a technological failure. A discussion of issues such as these is a basic part of the informed consent process, especially when the therapist and client are evaluating whether remote therapy is the right choice (Harris & Younggren, 2011).
Our Perspective on Online Counseling
Therapists do not have to choose between online counseling and traditional face-to-face counseling. Technology can be used in the service of clients and can address some unique needs, especially if therapists combine remote therapy and in-person sessions. For example, therapists might require one to three face-to-face sessions, if at all possible, to determine the client’s suitability for online counseling and to establish a working therapeutic relationship. We think this will increase the likelihood that online services will be effective. During these face-to-face sessions, time could be allocated for orienting the client to the counseling process and secur- ing informed consent, taking the client’s history, conducting an assessment and formulating a diagnostic impression, collaboratively identifying counseling goals, developing a general treatment plan, and formulating a specific plan of action. As the action plan is carried out following these initial sessions, online sessions could be used to monitor specific homework assignments. Depending on the cli- ent’s needs and situation, there might be face-to-face sessions scheduled at regular intervals along with online counseling. Integrating traditional in-person therapy with remote therapy in this way can accommodate consumers who would not take advantage of counseling delivered exclusively by face-to-face sessions due to financial considerations or restrictions imposed by traveling long distances.
Some fields of counseling seem better suited for remote services, such as career counseling and educational counseling, which involve gathering and pro- cessing information. In this endeavor, technology may have some useful applica- tions. However, we have reservations about the effectiveness of online counseling for clients with deeply personal or interpersonal concerns. Many clinical prob- lems involve complex variables that require human-to-human interaction. At the
present time, we do not think online counseling should be used as an exclusive or primary means of delivering services, but in some cases it could be an important adjunct to face-to-face counseling. If you were to make online counseling part of your practice, what ethical considerations would you consider? What difficulties most need to be addressed in this area?
LO6
Working With Children and Adolescents
The definition of a minor varies from state to state (Barnett & Johnson, 2015). The upper range is 18 to 21 years of age, although some states authorize 16-year-olds to consent to their own health care in some circumstances. Consistent with the increasing concern over the rights of children in general, more attention is being paid to issues such as the minor’s right of informed consent. Barnett and Johnson maintain that therapists should clearly discuss the limits of confidentiality with minors as part of the informed consent process, even in those cases when a parent or guardian consents to treatment.
Legal and ethical questions faced by human-service providers who work with children and adolescents include the following:
• To what degree should minors be allowed to participate in setting the goals of therapy and in providing consent to undergo it?
• What are the limits of confidentiality in counseling minors? Would you dis- cuss these limits with minor clients even though a parent or guardian consents to treatment of the minor?
• What does informed consent consist of in working with minors?
We consider some of these questions next and focus on the rights of children when they are clients.
Parental Right to Information About a Minor’s Treatment
Each state has specific statutes and regulations that offer guidance to clinicians working with children and adolescents, and practitioners should become familiar with the laws in their state pertaining to minors. In most states, for a minor to enter into a counseling relationship, it is necessary to have informed parental or guard- ian consent or for counseling to be court ordered, although there are exceptions to this general rule. Parents or guardians generally have the legal right to know the contents of counseling sessions with their children (Remley & Herlihy, 2016).
Informed consent of parents or guardians may not be legally required when a minor is seeking counseling for addictions to dangerous drugs or narcotics, for sexually transmitted diseases, for pregnancy and birth control, or for an examina- tion following alleged sexual assault of a minor over 12 years of age (Lawrence & Kurpius, 2000). The justification for allowing children and adolescents to have access to treatment without parental consent is that some minors might not other- wise seek needed treatment. Some children and adolescents who seek help when given independent access might not do so without the guarantee of privacy. It is important that you check with your state regarding the current laws if you are a
chool counselor or school psychologist. Marriage and family therapists, clinical social workers, licensed clinical mental health counselors, and psychologists may operate under different laws. For example, a recent California law allows mental health practitioners to provide counseling services to a consenting minor age 12 or older if the practitioner determines the minor is mature enough to participate intelligently in the treatment (California Board of Behavioral Sciences, 2017).
School Counseling and Parental Consent
Counselors working with minors must know the laws in their state or jurisdiction and understand the policies of the settings in which they work. School counselors do not have a legal obligation to obtain parental consent for counseling unless a state statute requires this. Many schools have a student handbook, a part of which typically describes information about counseling services available to students. This handbook is often sent to parents at the beginning of a school year to provide them with school rules and policies, as well as general information about various services offered by the school. At the end of the handbook, there is typically a page that asks for parents’ signatures indicating their consent for their children to use the services provided by the school. Such a procedure is a means of securing required consent. If parents do not want their children to receive any kind of coun- seling, this could be indicated at the end of the handbook on the signature page.
In the section on counseling, some handbooks give examples of individual and group counseling activities. For example, counseling sessions may focus on themes such as improving study habits, time management, making good choices, substance abuse prevention, anger management, career development, and other personal or social concerns. At times, specific approval may be required if chil- dren want to participate in special counseling (such as a children of divorce group). If parents have questions about any counseling activities, they are given the name of a person to contact at the school. Parents who object to their child’s participation in counseling generally have a legal right to do so. If you are not required by law to get parental consent for treatment, but you decide to ask for their permission and they decline, you cannot counsel their children. Florida and some other states allow counselors to see children in crisis without parental con- sent for a period of time.
Seeing Minors Without Parental Consent
Counselors faced with the issue of when to counsel minors without parental con- sent must consider various factors. What is the competence level of the minor? What are the potential risks and consequences if treatment is denied? What are the chances that the minor will not seek help or will not be able to secure parental permission for needed help? How serious is the problem? What are the laws per- taining to providing therapy for minors without parental consent? If practitioners need to make decisions about accepting minors without parental consent, they should know the relevant statutes in their state. They would also be wise to con- sult with other professionals or with their professional organizations in assessing the ethical issues involved in each case.
California enacted a law in 2011 allowing mental health practitioners to treat minors (12 years or older) if the practitioner determines the minors are mature enough to participate intelligently in outpatient treatment or mental health coun- seling. However, the statute does require parental (or guardian) involvement in the treatment unless the therapist finds, after consulting with the minor, that this involvement would be inappropriate under the circumstances. Therapists have the responsibility for noting in the client’s records whether they attempted to contact the minor’s parent or guardian, whether this attempt was successful or unsuccessful, or why it was deemed inappropriate to make this contact. This law protects the right to seek treatment of certain populations of youth, such as young people from immigrant families, homeless youth, people who are gay, and young people from cultural backgrounds that do not condone receiving mental health services (Leslie, 2010).
Informed Consent Process With Minors
Minors are not always able to give informed consent. The APA (2010) code pro- vides guidance on this matter:
For persons who are legally incapable of giving informed consent, psychologists nevertheless (1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such persons’ preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual’s rights and welfare. (3.10.b.)
The ACA (2014) Code of Ethics also addresses this topic:
When counseling minors, incapacitated adults, or other persons unable to give vol- untary consent, counselors seek the assent of clients to services, and include them in decision-making as appropriate. Counselors recognize the need to balance the ethical rights of clients to make choices, their capacity to give consent or assent to receive ser- vices, and parental or familial legal rights and responsibilities to protect these clients and make decisions on their behalf. (A.2.d.)
Therapists working with children and adolescents have the ethical respon- sibility of providing information that will help minor clients become active par- ticipants in their treatment. If children lack the background to weigh risks and benefits and if they cannot give complete informed consent, therapists should still attempt to explain the therapy process and general procedures of therapy to them. Even though minors usually cannot give informed consent for treatment, they can give their assent to counseling. Assent to treatment implies that counselors involve minors in decisions about their own care, and that to the greatest extent possible they agree to participate in the counseling process (Welfel, 2016).
There are both ethical and therapeutic reasons for involving minors in their treatment. By giving them the maximum degree of autonomy within the thera- peutic relationship, the therapist demonstrates respect for them. Also, it is likely that therapeutic change is promoted by informing minors about the process and
enlisting their involvement in it. In general, the older and more mature a child is, the more he or she can be included in the process of ongoing informed consent. Factors to consider are what the child can and cannot understand, as well as the degree to which the child is able to understand, participate in, and benefit from informed consent.
Involving Parents in the Counseling Process With Minors
To work effectively with a minor it is often necessary to involve the parents or guardians in the treatment process. To the extent that it is possible, it is a good practice for counselors to involve the parents or guardians in the initial meeting with their child to arrive at a clear, mutual agreement regarding the nature and extent of information that will be provided to them. This also gives the therapist an opportunity to see how the child behaves in the presence of the parents and also how the parents react to their child. This policy makes it possible to create clear boundaries for sharing information and establishes a three-way bond of trust (Lawrence & Kurpius, 2000). The American Psychiatric Association (2013b) offers this guideline:
Careful judgment must be exercised by the psychiatrist in order to include, when appropriate, the parents or guardian in the treatment of a minor. At the same time, the psychiatrist must assure the minor proper confidentiality.” (4.7.)
The Ethical Standards for School Counselors (ASCA, 2016) addresses the matter of the school counselor’s responsibilities to parents:
School counselors recognize that providing services to minors in a school setting requires school counselors to collaborate with students’ parents/guardians as appro- priate. (B.1.a.)
Ethical and Legal Challenges Pertaining to Confidentiality With Minors
Mental health professionals must take special care to protect the rights of minors, but clinicians often experience difficulty when applying ethics codes guidelines in their work with children and adolescents. A study of Australian psychologists found a high level of variation in their opinions regarding when to breach con- fidentiality to inform parents in cases involving adolescents engaging in risky behaviors (Duncan, Williams, & Knowles, 2013). According to Benitez (2004), counselors who work with minors are frequently challenged to balance the minor’s need for confidentiality and the parents’ requests for information about the minor’s counseling. Benitez claims that it is a wise policy for practitioners to make it clear to parents of minors that effective counseling requires a sense of trust in the therapist. Information that will or will not be disclosed to parents or guardians must be discussed at the outset of therapy with both the child or ado- lescent and the parent or guardian. If the matter of confidentiality is not clearly explored with all parties involved, problems can be expected to emerge in the course of therapy.
Therapists cannot guarantee blanket confidentiality to minors. If the parents or guardians of minors request information about the progress of the counseling, the therapist may be expected to provide some feedback. Remley and Herlihy (2016) contend that counselors have legal duties to parents or guardians of minors and that in some circumstances counselors will determine that parents or guardians must be given information that a minor client has disclosed in a counseling ses- sion. For example, if a counselor makes the judgment that a minor client is at risk of harm (to self or others), the counselor usually is required to inform the minor’s parents or guardians. However, if the minor client has threatened harm against a third party, merely notifying the client’s parents or guardians may not be suffi- cient to insulate the counselor from liability. There also may be a duty to notify the potential victim, the potential victim’s parents or guardians, or the police, depend- ing on state law (Nancy Wheeler, personal communication, June 28, 2016). If a counselor had relevant information and did not take appropriate action to prevent a minor client from injuring him- or herself, or if the minor client harmed another person, the counselor may be held legally accountable.
Minors who engage in self-injurious behaviors raise complex issues regarding the limits of confidentiality. Wester (2009) points out that there is little in the ethics codes of the ACA or the APA to assist counselors in determining when to breach confidentiality for minors who engage in self-injurious behavior. It is crucial to set limitations to confidentiality specifically related to self-injurious behavior at the outset of a professional relationship. Wester adds that counselors should seek supervision and consultation when necessary so that they are working within the boundaries of their competence.
Because of the high correlation between self-injury and suicide (Whitlock et al., 2013), counselors need to understand the distinction between self-injury and suicidal behavior. Furthermore, counselors need to have the expertise to identify self-injury when it is presented in counseling by a client. Assessment instruments can be used to screen for self-injury and suicide and to address the functions self- injury serves for clients. A number of researchers have devoted time and attention to this complex topic in recent years (Evans & Hurrell, 2016; Hawton et al., 2016; Kress, Newgent, Whitlock, & Mease, 2015; Lewis, Heath, Michal, & Duggan, 2012; Nock, 2014; Plener, Schumacher, Munz, & Groschwitz, 2015; Victor, Styer, & Washburn, 2015; Walsh & Muehlenkamp, 2013; Wester, Ivers, Villalba, Trepal, & Henson, 2016; Whitlock, Prussien, & Pietrusza, 2015), but additional research is needed to fully understand this phenomenon. We encourage mental health practitioners and school counselors to remain abreast of the literature on self-injury and suicidal behavior.
Although minor clients have an ethical right to privacy and confidentiality in the counseling relationship, the law still favors the rights of parents over their children. However, some sensitive information, if revealed or disclosed, may be detrimental to the therapy process. Disclosure of a minor’s personal information can result in the child no longer trusting the therapist due to fears that this per- sonal information will be disclosed to parents. This should be explained to parents or guardians during the informed consent process.
Parents and guardians usually have a legal right to information pertaining to counseling sessions with their children, although a court may hold otherwise due to specific state statutes (Remley & Herlihy, 2016). When parents or legal
guardians become involved in the counseling process, counselors must acknowl- edge that these adults have authority over minors. Marion’s case is an example of the challenges a counselor must address in determining how to handle personal information to parents.
the case of Marion
Marion is a 15-year-old honors student. she discovered that she is pregnant and feels she would be better off dead than being a teenage mom. Marion was born to teenage parents, so she knows they will never allow her to have an abortion. Marion went to see the school coun- selor to talk about her situation. the counselor educated Marion on the different options she had with regard to her pregnancy. Marion stated that she wanted to abort her pregnancy. if her parents would not allow her to have an abortion, Marion said she would kill herself. the school counselor persuaded Marion to agree to see a family therapist with her parents, and during the family session Marion’s father stated he would not hear of Marion’s having an abortion. Marion then stated with conviction that she would kill herself. the family therapist has reason to believe that Marion will act on her threat of suicide.
• if your state had a law requiring parental consent for abortion, how would this influence the interventions you would make in this case?
• Might you encounter a conflict between ethics and the law if you were counseling Marion? how would you deal with her suicidal threat?
• Knowing what Marion told you about her parents’ values, would you have involved them in this case? Why or why not?
• Would you use Marion’s threat of suicide to influence her parents, or would you ignore this threat? explain.
• What other options would you consider?
Commentary. thefamilytherapistcanactonthesuicidalthreat,whichcouldresultina72-hour hospitalization. this takes care of the therapist’s legal responsibility, yet this does not solve the problem of Marion’s suicidal threats. this case reminds us of the importance of knowing about available resources when there is a suicidal threat, and the need for consultation and documen- tation. after Marion is released, the therapist will need to continue working with the family.
Marion’s case illustrates the importance of ensuring one’s own competence to counsel var- ious types of clients. in this case, the counselor must be competent to work with minors and their families in crisis. •
At this point we suggest that you think about these legal and ethical consider- ations in providing counseling for minors:
• Many parents argue that they have a right to know about matters that pertain to their adolescent daughters and sons. They assert, for example, that parents have a right to be involved in decisions about abortion. What is your position?
• If the state in which you practice has a law requiring parental consent for abor- tion, how would this influence your interventions with minors who were con- sidering an abortion?
• Some people argue for the right of minors to seek therapy without parental knowledge or consent because needed treatment might not be given to them otherwise. When, if at all, would you counsel a minor without parental knowl- edge and consent?
• What kinds of information should be provided to children and adolescents before they enter a therapeutic relationship?
• If therapists do not provide minors with the information necessary to make informed choices, are they acting unethically? Why or why not?
Counseling Reluctant Children and Adolescents
Some young people resent not having a choice about entering a therapeutic rela- tionship. Adolescents often resist therapy because they become the “identified patient” and the focus is on changing them. These adolescents are frequently aware that they are only part of the problem in the family unit. Although many minors indicate a desire to participate in treatment decisions, few are given the opportunity to become involved in a systematic way. Unwillingness to participate in therapy can be minimized if therapists take time to explore the reasons for ado- lescents’ unwillingness.
the case of Kody
Kody was expelled from high school for getting explosively angry at a teacher who, according to Kody, had humiliated him in front of his class. Kody was told that he would not be readmit- ted to school unless he sought professional help. his mother called a therapist and explained the situation to her, and the therapist agreed to see him. although Kody was uncomfortable and embarrassed over having to see a therapist, he was nevertheless willing to talk. he told the therapist that he knew he had done wrong by lashing out angrily at the teacher but that the teacher had provoked him. he said that although he was usually good about keeping his feelings inside, this time he had “just lost it.”
after a few sessions, the therapist determined that there were many problems in Kody’s family. he lived with an extreme amount of stress, and to work effectively with Kody it would be essential to see the entire family. indeed, he did have a problem, but he was not the prob- lem. he was covering up many family secrets, including a verbally abusive stepfather and an alcoholic mother. hesitantly, he agreed that it would be a good idea to have the entire family come in for therapy. When the therapist contacted the parents, they totally rejected the idea of family therapy. the mother asserted that the problem was with Kody and that the therapist should concentrate her efforts on him. a few days before his next scheduled appointment his mother called to cancel, saying that they had placed Kody in homebound study and that he therefore no longer required counseling.
• What are the ethical responsibilities of the therapist in this situation? • should Kody be seen as a condition of returning to school? • What other strategies might the therapist have used? • What would you do differently, and why?
• should the therapist have seen Kody and the teacher?
• should the therapist have encouraged Kody to continue his therapy even if his family refused to undergo treatment?
• Would it be ethical for the therapist to refuse to continue with Kody once the family refused to join the therapy sessions?
Commentary. One ethical problem in this case was the treatment of the individual as opposed to the treatment of the family. this case highlights the importance of providing thorough
nformed consent. if a therapist routinely transitions from individual to marital or family ther- apy, clients need to understand the circumstances that might prompt the therapist to recom- mend this role shift.
in this case, there was an alcoholic parent in the family. Kody’s expulsion from school could have been more a symptom of the family dysfunction than of his own disturbance. indeed, he did need to learn anger management, as both the school and the mother contended, yet more was going on within this family that needed attention. in this case it might have been best for the therapist to stick to her initial convictions of family therapy as the treatment of choice. if the parents would not agree to this, she could have made a referral to another therapist who would be willing to see Kody in individual counseling. in many states the therapist would be required to make a child abuse report to child protective services because of the alleged verbal and emotional abuse. •
Specialized Training for Counseling Children and Adolescents
The ethics codes of the major professional organizations specify that it is uneth- ical to practice in areas for which one has not been trained. It is important not to begin counseling with minors without requisite coursework and supervision by a specialist in this area. Many human-service professionals have been trained and supervised in “verbal therapies,” but there are distinct limitations in applying these therapeutic interventions to children. Practitioners who want to counsel chil- dren may have to acquire supervised clinical experience in play therapy, art and music therapy, and recreational therapy. These practitioners also must understand the developmental issues pertaining to the population with which they intend to work. They need to become familiar with laws relating to minors, to be aware of the limits of their competence, and to know when and how to make appropriate referrals. It is essential to know about community referral resources, such as Child Protective Services.
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Dealing With Suspected Unethical Behavior of Colleagues
Throughout this book our focus has been on your own professional behavior and the importance of practicing in an ethical manner. In this section we take up the dif- ficult question of what to do should you become aware of unethical behavior on the part of a colleague. You may wonder whether it is your place to judge the practices of other practitioners. Even if you are convinced that the situation involves clear ethical violations, you may be in doubt about the best way to deal with it. Should you first discuss the matter with the person? Assuming that you do and that the person becomes defensive, what other actions should you consider? When would a violation be serious enough that you would feel obligated to bring it to the atten- tion of an appropriate local, state, or national committee on professional ethics?
Although the ethics codes of most professional organizations clearly place the responsibility for addressing problems of competence or unethical behavior of col- leagues on the members of their profession, Johnson and colleagues (2012) state that mental health professionals are reluctant to address such problems. Professionals
admit they might not directly approach a colleague they believe is functioning below thresholds for competence or behaving unethically, even though they have an ethical duty to address the situation. Ignoring evidence of peer misconduct is an ethical violation in itself (see the Ethics Code box titled “Unethical Behavior of Colleagues”).
Professionals have an obligation to deal with colleagues when they suspect unethical conduct. Koocher and Keith-Spiegel (2016) recommend informal peer monitoring as one way to assume responsibility for watching out for each other. Informal peer monitoring provides an opportunity for corrective interventions to ethically questionable acts. Actions can be taken directly by confronting a col- league, or indirectly by advising clients how to proceed when they have concerns about another professional’s actions. If unethical behavior by a colleague cannot be satisfactorily resolved informally, you have an ethical obligation to file a formal complaint.
Generally, the best way to proceed when you have concerns about the behav- ior of a colleague is to deal directly with the colleague, unless doing so would compromise a client’s confidentiality. In cases of egregious offenses, such as sex- ual exploitation of clients or general incompetence, informal measures are not enough. Depending on the nature of the complaint and the outcome of the dis- cussion, reporting a colleague to a professional board is one of several options open to you.
the case of Melanee
Melanee’s lunch at the university’s cafeteria was interrupted when she became distracted by a conversation in the booth directly behind her. a male—his voice only vaguely familiar at first— was regaling a female lunch companion with a story about someone’s extreme social anxiety and fear of women. as Melanee looked around the cafeteria, she noticed a few other patrons
glancing at the therapist who was talking loudly, undoubtedly overhearing the discussion just as she was. as Melanee listened, it became clear the man was referring to a mental health client. the man recounted specific experiences his client had shared and some of the exposure therapy assignments the man had given his client earlier that day. Melanee realized the client information and some of the specific stories were familiar to her because she had heard some of this material earlier in the week during group supervision. the voice belonged to Lonny, one of her fellow counseling interns at the university’s student counseling center.
Upset over Lonny’s poor judgment, concerned at the prospect that the client or one of his friends might be overhearing Lonny’s conversation, yet equally determined not to overreact, Melanee did her best to collect her thoughts. Melanee decided to tell Lonny what she had overheard and asked him if he understood how his behavior may have compromised his client’s confidentiality. rather than accusing or threatening, Melanee’s tone and demeanor were con- cerned and caring, but nonetheless firm.
sensing that Melanee had both his own and his client’s best interests at heart, Lonny was quick to admit his blunder and instantly embarrassed and remorseful. he admitted having “completely blown it” and thanked Melanee for her candor. several times during the remain- der of the internship year, Lonny thanked Melanee again and described the experience as a turning point in his understanding of his obligations to clients—both in and outside of the counseling session.
• What are your thoughts about how Melanee dealt with this situation?
• should Melanee have gone straight to the program dean and reported Lonny’s behavior?
• should Melanee file an ethics complaint with the university or the state counseling board?
• if you were in Melanee’s place, what do you imagine you would have done?
• What would you think of Melanee if she had decided she had no right to confront Lonny with his behavior?
Commentary. ethical guidelines and standards in the mental health professions require pro- fessionals to remain both aware of and responsive to the functioning of colleagues. Whenever possible, make your best effort to informally communicate any concerns about a colleague’s diminished competence or unethical behavior directly to that colleague. Do your best to be respectful and nonthreatening, but clearly state both your concerns and the ethical require- ment at issue. Melanee effectively confronted Lonny and helped him to understand how he had gotten off track and why it was a serious concern. she refrained from putting Lonny on the defensive or needlessly escalating the matter. •
Johnson and his colleagues (2012) suggest that the current APA Ethics Code (APA, 2010) lacks care and compassion as general guiding principles. They believe a clearer focus on care and compassion for both individual psychologists and for members of the professional community is required. They contend that a human- istic concern for others is a foundational component of professionalism and, thus, concern for colleagues warrants increased attention in the ethics code.
Malpractice Liability in the Helping Professions
How vulnerable are mental health professionals to malpractice actions? What are some practical safeguards against being involved in a lawsuit? In this section we examine these questions and encourage you to develop a prudent approach to risk management in your practice.
What Is Malpractice?
The word malpractice means “bad practice.” Malpractice is the failure to render professional services or to exercise the degree of skill that is ordinarily expected of other professionals in a similar situation. Malpractice is a legal concept involving alleged negligence that results in injury or loss to the client. Professional negligence can result from unjustified departure from usual practice or from failing to exer- cise proper care in fulfilling one’s responsibilities.
Practitioners are expected to abide by legal standards and adhere to the ethics code of their profession in providing care to their clients. Unless practitioners take due care and act in good faith, they may be liable in a civil lawsuit for failing to do their duty as provided by law. A malpractice lawsuit alleges negligence in meeting one’s professional responsibilities or duties. The plaintiff may claim that a practi- tioner’s actions (or lack of actions) deviated from the acceptable standard of care and directly caused harm to the client (Knapp & VandeCreek, 2012). The primary focus of a negligence suit lies in determining what standard of care to apply in deciding whether a breach of duty to a client has taken place. Clinicians are judged according to the standards that are commonly accepted by the profession; that is, whether a reasonably prudent counselor in a similar circumstance would have acted in the same manner (Wheeler & Bertram, 2015).
Remley and Herlihy (2016) remind us: “Although malpractice lawsuits against mental health professionals have increased dramatically over the past decade, the total number of these lawsuits is relatively small” (p. 189). However, students tak- ing an ethics class seem particularly anxious about making mistakes and becom- ing involved in a malpractice suit. Practitioners are not infallible, but they are expected to possess and exercise the knowledge, skill, and judgment common to other members of their profession. It is a good policy for practitioners to maintain a reasonable view of the realities involved in dealing with high-risk clients. No matter how ethical and careful you try to be, you can still be accused of malprac- tice. However, the more careful and ethical you try to be, the less likely you are to be successfully sued. The best defense against becoming embroiled in a malprac- tice suit or having a complaint filed with the licensing board is to practice quality client care and establish and maintain effective relationships with your clients. Younggren, Harris, and Martin (2016) recommend that clinicians “develop and nurture relationships with clients. Not only is this good psychotherapy, but it is also good risk management” (pp. 405–406).
To succeed in a malpractice claim, these four elements of malpractice must be present: (1) a professional relationship between the therapist and the client must have existed; (2) the legal duty based on this relationship must have been breached: the therapist must have acted in a negligent or improper manner, or have deviated from the “standard of care” by not providing services that are considered “stan- dard practice in the community”; (3) the client must have suffered harm or injury, such as emotional distress or physical harm, which must be verified; and (4) there must be a legally demonstrated causal relationship between the practitioner’s neg- ligence or breach of duty and the damage or injury claimed by the client.
It should be noted that anyone, at any time, can file a suit against you. Even if the suit does not succeed, it can take a toll on you in terms of time, money, and
emotional stress. You may have to spend many hours preparing and supplying documents and responding to requests for information. However, the burden of proof that harm actually took place is the client’s, and the plaintiff must demon- strate that all four elements applied in his or her situation.
In the case of suicide, for example, two factors determine a practitioner’s lia- bility: foreseeability and reasonable care. Most important is foreseeability, which involves assessing the level of risk. Failing to conduct a comprehensive risk assess- ment and to document this assessment would be a major error on the therapist’s part. If you are not competent to make such an assessment, then a referral is man- datory so that an assessment can be made. Practitioners need to demonstrate that their judgments were based on data observed and that these judgments were reasonable. The second factor in liability is whether reasonable care was provided. Once an assessment of risk is made, it is important to document that appropriate precautions were taken to prevent a client’s suicide.
Reasons for Malpractice Suits
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Malpractice is typically found in the following kinds of situations: (1) the proce- dure used by the practitioner was not within the realm of accepted professional practice; (2) the practitioner employed a technique that he or she was not trained to use; (3) the professional did not follow standard counseling procedures, which resulted in harm to the client; (4) the therapist failed to warn others about and protect them from a violent client; (5) informed consent to treatment was not obtained or not documented; or (6) the professional did not explain the possi- ble consequences of the treatment (Wheeler & Bertram, 2015). In the social work field, malpractice typically results from a practitioner’s active violation of a client’s rights (Reamer, 2015).
Many areas of a therapist’s practice could lead to a legal claim, but we focus on the types of professional negligence that most often put therapists at legal risk. Wheeler and Bertram (2015, p. 69) report that common complaints lodged against counselors and other mental health providers by the state licensure board involve sexual/romantic interaction with current clients, client’s partners, or client’s fam- ily members; failure to practice within the boundaries of competence; improper sharing of confidential material without client consent or legal justification; fail- ing to make fees and charges clear to clients; misrepresenting credentials; altering records; using false advertising; and practicing while impaired.
Knapp and VandeCreek (2012) report that no standardized set of data exists of the most common ethical infractions of psychologists. However, a general analysis of common sources of complaints lodged against psychologists are in these areas: multiple relationships (both sexual and nonsexual); incompetence in diagnosis and treatment; disputes arising out of child custody evaluations; premature termi- nation; and fee disputes. Other complaints include inadequate supervision; inad- equate record keeping; impairment; and breach of confidentiality. Professional journals reveal an increase in citations for the abuse of alcohol and drugs because of its impairment possibility.
In a survey of ethical questions of both psychologists and clients, Wierzbicki, Siderits, and Kuchan (2012) noted that the Wisconsin Psychological Association has
a mechanism for assisting psychologists and their clients who have questions about ethical psychological practice. Questions most often raised by psychologists about their own practice involved matters such as self-disclosure, multiple relationships, and maintaining confidentiality. Questions raised by their clients concerned sexual intimacies, maintaining confidentiality, and reporting ethical violations. Among concerns most frequently raised by clients were fees, financial arrangements, and the termination process. Wierzbicki and colleagues recommend consulting reg- ularly with colleagues through meetings in a peer consultation group. They also suggest asking for regular feedback from clients about the degree to which they are satisfied with the psychological services rendered to them.
The following discussion of these risk categories is an adaptation of mal- practice liability and lawsuit prevention strategies suggested by various writers (Bennett et al., 2006; Calfee, 1997; Kennedy, Vandehey, Norman, & Diekhoff, 2003; Kirkland, Kirkland, & Reaves, 2004; Knapp & VandeCreek, 2012; VandeCreek & Knapp, 2001; Wheeler & Bertram, 2015; Younggren et al., 2016).
Failure to Obtain or Document Informed Consent Therapists need to recognize that they can be liable for failure to obtain appropriate informed consent even if their subsequent treatment of the client is excellent from a clinical perspective. Although written informed consent may not be needed legally, it is wise to have clients sign a form to acknowledge their agreement with the terms of the proposed therapy. Without a written document, it may be very difficult to ascertain whether counselors communicated clearly and effectively to clients about the therapeutic process and whether clients understood the information.
Refusal to Counsel Clients Due to Value Differences As the Bruff case demon- strates (see Chapter 4), therapists who refuse to work with clients due to value conflicts may be liable for legal action and malpractice suits. The codes of ethics of most professional organizations state that clinicians may not discriminate against specific categories of people. If a counselor refuses to work with a client because of value conflicts, or if the counselor attempts to impose his or her values on a client, the client may have legal and ethical grounds to file a complaint.
Client Abandonment and Premature Termination Younggren and Gottlieb (2008) define termination as “the ethically and clinically appropriate process by which a professional relationship is ended” (p. 500). They define abandonment as “the failure of the psychologist to take the clinically indicated and ethically appro- priate steps to terminate a professional relationship” (p. 500). A central concern associated with termination is avoiding abandonment of a client. Clinical records should give evidence that they were not terminated inappropriately. It is useful to document the nature of a client’s termination, including who initiated the ter- mination, how this was handled, the degree to which initial goals were met, and referrals provided when appropriate.
The codes of ethics of professional organizations state that mental health prac- titioners do not abandon clients. When a psychologist unilaterally terminates a professional relationship with a client, even after careful reflection, the client may experience this as abandonment (Wierzbicki et al., 2012). Ideally, termination otherapy is a collaborative effort involving both client and therapist. Clients need to be informed about termination and, as much as possible, should be involved in making decisions about when to end their treatment. When both client and therapist agree that the goals of therapy have been achieved and that therapy is no longer required, there is a very low risk that the client will file a malpractice complaint. Under managed care programs, termination typically is not the result of a collaborative process but of company policy. Under managed care plans, ther- apists may be accused of abandonment when they terminate a client based on the allocated number of sessions rather than on the therapeutic needs of the client. It is the responsibility of therapists to inform clients that the request for additional sessions may or may not be granted by their managed care provider and to work with clients to explore alternatives.
Practitioners who work on a fee-for-service basis can usually terminate treat- ment when they are not receiving payment for their services because the original remuneration contract is not being honored. Therapists have no legal duty to pro- vide free psychological services and can stop treatment when the client stops pay- ing for the services (Younggren et al., 2011). How termination is handled is critical, and at the very least the client should be given referral options. Premature termi- nation from therapy is a significant problem and has negative effects on clients who do not complete treatment as well as on providers and the agencies that work with them. Approximately 20% of all clients drop out of therapy prematurely, with higher rates among some types of clients and in some settings (Swift, Greenberg, Whipple, & Kominiak, 2012).
Courts have determined that the following acts may constitute abandon- ment: failure to follow up on the outcomes with a client who has been hospi- talized; consistently not being able to be reached between appointments; failure to respond to a request for emergency treatment; or failure to provide for a sub- stitute therapist during vacation times. Terminating a client who clearly needs continuing care may be sufficient grounds for a malpractice suit (Knapp & VandeCreek, 2012). Clients have a case for abandonment when the facts indicate that a therapist unilaterally terminated a professional relationship and that this termination resulted in some form of harm. However, as Younggren (Younggren et al., 2011) notes, there are legitimate grounds for terminating a professional relationship, such as when no progress is taking place in the therapy or when clients are not cooperating with the treatment. In these situations, termination is likely to be the appropriate course of action and to do otherwise could put the practitioner at risk.
Sexual Misconduct With a Client Related to the topic of unhealthy transference relationships is the area of sexual boundary violations, one of the most common grounds for malpractice suits. It is never appropriate for therapists to engage in sexual contact with clients. (This topic is explored in detail in Chapter 7.) Court cases suggest that no act is more likely to create legal problems for therapists than engaging in a sexual relationship with a client. Furthermore, initial consent of the client will not be a defense against malpractice actions. Even in the case of sex between a therapist and a former client, courts do not easily accept the view that therapy has ended.
therapy is a collaborative effort involving both client and therapist. Clients need to be informed about termination and, as much as possible, should be involved in making decisions about when to end their treatment. When both client and therapist agree that the goals of therapy have been achieved and that therapy is no longer required, there is a very low risk that the client will file a malpractice complaint. Under managed care programs, termination typically is not the result of a collaborative process but of company policy. Under managed care plans, ther- apists may be accused of abandonment when they terminate a client based on the allocated number of sessions rather than on the therapeutic needs of the client. It is the responsibility of therapists to inform clients that the request for additional sessions may or may not be granted by their managed care provider and to work with clients to explore alternatives.
Practitioners who work on a fee-for-service basis can usually terminate treat- ment when they are not receiving payment for their services because the original remuneration contract is not being honored. Therapists have no legal duty to pro- vide free psychological services and can stop treatment when the client stops pay- ing for the services (Younggren et al., 2011). How termination is handled is critical, and at the very least the client should be given referral options. Premature termi- nation from therapy is a significant problem and has negative effects on clients who do not complete treatment as well as on providers and the agencies that work with them. Approximately 20% of all clients drop out of therapy prematurely, with higher rates among some types of clients and in some settings (Swift, Greenberg, Whipple, & Kominiak, 2012).
Courts have determined that the following acts may constitute abandon- ment: failure to follow up on the outcomes with a client who has been hospi- talized; consistently not being able to be reached between appointments; failure to respond to a request for emergency treatment; or failure to provide for a sub- stitute therapist during vacation times. Terminating a client who clearly needs continuing care may be sufficient grounds for a malpractice suit (Knapp & VandeCreek, 2012). Clients have a case for abandonment when the facts indicate that a therapist unilaterally terminated a professional relationship and that this termination resulted in some form of harm. However, as Younggren (Younggren et al., 2011) notes, there are legitimate grounds for terminating a professional relationship, such as when no progress is taking place in the therapy or when clients are not cooperating with the treatment. In these situations, termination is likely to be the appropriate course of action and to do otherwise could put the practitioner at risk.
Sexual Misconduct With a Client Related to the topic of unhealthy transference relationships is the area of sexual boundary violations, one of the most common grounds for malpractice suits. It is never appropriate for therapists to engage in sexual contact with clients. (This topic is explored in detail in Chapter 7.) Court cases suggest that no act is more likely to create legal problems for therapists than engaging in a sexual relationship with a client. Furthermore, initial consent of the client will not be a defense against malpractice actions. Even in the case of sex between a therapist and a former client, courts do not easily accept the view that therapy has ended.
claimed she was injured by false memories of abuse induced after her psychia- trist suggested that she suffered from a multiple personality disorder, which most likely was the result of repeated sexual abuse by relatives (Wheeler & Bertram, 2015). Certainly, the style in which a therapist questions a client can influence memories, particularly for young children. Repeated questioning can lead a per- son to believe in a “memory” of an event that did not occur. A trusted therapist who suggests past abuse as a possible cause of problems or symptoms can greatly influence the client.
What is the best course for you to follow when you suspect that past sexual abuse is related to a client’s present problem? How can you best protect the client, the alleged abuser, and other family members, without becoming needlessly vul- nerable to a malpractice suit? Wheeler and Bertram (2015) recommend following these basic clinical and ethical principles:
• Be attentive to the kinds of questions you ask clients. • Remain nonjudgmental and demonstrate empathy as you talk to a client about
possible memories of abuse. • Avoid prejudging the truth of the client’s reports. • If a client reports a memory, explore it with the person. • Make use of established assessment and treatment techniques. • Avoid pressuring the client to believe events that may not have actually
occurred. • Do not minimize a client’s reported memories. • Do not suggest to clients that they terminate the relationship precipitously. • If you are not specifically trained in child abuse assessment and treatment,
consult with a supervisor or a professional with expertise in this area, or refer the client for a clinical assessment. (p. 81)
Wheeler and Bertram (2015) suggest carefully documenting in the client’s clini- cal record the allegations, the circumstances under which the memory was revealed, the techniques used to assess the veracity of the memory, and the treatment options considered, including consultation or referral to other professional colleagues.
Unhealthy Transference Relationships The importance of understanding how transference and countertransference play out in the therapy relationship is con- sidered in Chapter 2. The mere existence of countertransference feelings is not an ethical or legal issue. However, if a therapist’s personal reactions to a client cannot be managed effectively, an abuse of power is likely, and this can have both ethical and legal consequences. In cases involving mishandling of a client’s transference or a counselor’s countertransference, allegations have included sexual involvement with clients, inappropriate socialization with clients, getting involved with clients in a business situation, and burdening clients with a counselor’s personal prob- lems. When a therapist gets involved in multiple relationships with a client, it is always the client who is most vulnerable to abuse because of the power differential.
It is a good practice for the counselor who is considering a referral to explore this matter in supervision or in consultation with a colleague before deciding whether making the referral is warranted and in the best interest of the client. In our work with counselors in training, we teach them that the client who most
triggers them can be a valuable teacher. Although we do not want the counselor’s development to be at the expense of the client, it is important to push ourselves to work with clients who may make us personally uncomfortable.
Failure to Assess and Manage a Dangerous Client Therapists may have a duty to intervene when clients pose a grave danger to themselves or to others. How- ever, it is difficult to determine when a given client actually poses a danger to self or others. We discuss this topic in greater detail in Chapter 6.
A number of states have duty-to-warn or duty-to-protect statutes that instruct practitioners regarding what they must do, must not do, or may do in treating clients who pose a potential threat to others (Knapp & VandeCreek, 2012). These statutes are intended to protect mental health professionals who breach confi- dentiality to report danger to others as well as to protect the public. Reporting dangerousness is required by California statute, and there is no privilege in cases involving dangerous patients (Leslie, 2010). Even in states where such a warning is not legally mandated, ethical practice demands a proper course of action on the therapist’s part.
Risk Management Strategies
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Risk management is the practice of focusing on the identification, evaluation, and treatment of problems that may injure clients and lead to filing an ethics complaint to a licensing board or a malpractice action. One of the best precautions against malpractice is personal and professional honesty and openness with clients. Pro- viding quality professional services to clients is the best preventive step you can take. Although you may not make the “right choice” in every situation, it is crucial that you know your limitations and remain open to seeking consultation in diffi- cult cases. Misunderstandings between therapist and client can result in a stronger therapist–client working relationship if the client and the therapist talk through the misunderstanding. Minor errors can become significant, however, and can lead to malpractice actions when they are repeated and are not recognized by the therapist. It is critical that clinicians remain alert for possible misunderstandings that, if not recognized or poorly handled, could lead to a therapeutic rupture or premature termination of therapy.
Some recommendations for improving risk management include the following:
• Become aware of local and state laws that pertain to your practice, as well as the policies of any agency for whom you work. Stay current with legal and ethical changes by becoming actively involved in professional organizations and attending risk management workshops.
• Make use of treatment contracts that present clients with written information on confidentiality issues, reasons for contacting clients at home, fee structures and payment plans, a policy on termination, and suicide provisions (Kennedy et al., 2003). Review this information with the client and document informed consent with a signature. Recognize that the disclosure statement establishes a contract between you and your client (Chauvin & Remley, 1996).
• Present information to your clients in clear language and be sure they under- stand the information.
• Contemporaneously engage in assessment and document your decisions (Werth, Welfel, Benjamin, & Sales, 2009).
• Explain your diagnosis, the treatment plan, and its risks and benefits in suf- ficient detail to be sure the client understands it, and document this as well. Documentation is one of the cornerstones of good risk management, and also of quality care (Werth et al., 2009). Carefully document your clients’ treatment process.
• Inform clients that they have the right to terminate treatment any time they choose. Exceptions may include clients who are court-ordered for treatment. Although mandated clients may terminate early, they will face consequences. The reasons for a client’s termination should be documented.
• Restrict your practice to clients for whom you are qualified by virtue of your education, training, and experience. Refer clients whose conditions are obvi- ously not within the scope of your competence.
• Document not only what you do and why, but what you decided not to do in certain cases (Werth et al., 2009).
• Maintain good financial and clinical records, and recognize your ethical, profes- sional, and legal responsibility to preserve the confidentiality of client records. • Be aware that not enough information in a client’s record may be problematic
when your professional conduct is being evaluated (Younggren et al., 2016). • Develop clear and consistent policies and procedures for creating, maintain-
ing, transferring, and destroying client records (Remley & Herlihy, 2016). • Report any case of suspected child abuse, elder, or dependent abuse as
required by law. • Evaluate how well you keep boundaries in your personal life. If you have clar-
ity and responsibility in your personal life, then you are more likely to have
the same in your professional life. • Before engaging in any multiple relationship, seek consultation and talk with
your client about the possible repercussions of such a relationship. Realize
that such relationships can lead to problems for both you and your client. • Be thorough about informed consent, documentation, and consultation when crossing boundaries or engaging in multiple relationships with high-risk
clients. • In deciding whether or not to accept a gift or to engage in bartering, consider
the relevant cultural and clinical issues. • Do not engage in sexual relationships with current or former clients or with
current supervisees or students. • Not keeping your appointments may feel like abandonment to a client. If you
have to miss a session, be sure to call the client. Provide coverage for emer-
gencies when you are not available. • When in doubt, consult with colleagues and document the discussions. Before
consulting with others about a specific client, obtain consent from the client for the release of information. Consultation shows that you have a commitment to sound practice and that you are willing to learn from other professionals to further the best interests of your clients.
• Develop a network of consultants who can assist you with considering options without necessarily telling you what to do (Werth et al., 2009).
• Get training in the assessment of clients who pose a danger to themselves or others, or have an experienced and competent therapist to whom you can refer. • If you are working with a suicidal client, consult and document the nature of
the consultation. • If you make a professional determination that a client is dangerous, take the
necessary steps to protect the client or others from harm. • Recognize that a mental health professional is a potential target for a client’s
anger or transference feelings. Be attentive to how you react to your clients
and monitor your countertransference. • Treat your clients with respect by attending carefully to your language and
your behavior. • Foster the therapeutic alliance and assess and discuss treatment progress and
satisfaction throughout the course of therapy (Swift et al., 2012). • The best protection against malpractice liability is to be concerned first and foremost with providing quality care and secondly to strive for ways to reduce
risk (Werth et al., 2009). • Have a theoretical orientation that justifies the techniques you employ. • Support your practice, whenever possible, with evidence-based procedures.
This list of risk management strategies may appear overwhelming. It con- tains many of the points that have been discussed in this chapter or that will be addressed in other chapters. Our intention is to remind you of appropriate actions and also to provide a checklist to expand your awareness of ethical and profes- sional behavior. Most ethical practitioners are already taking these steps. Increased use of the legal system may lead to excessive caution on the part of therapists because of their concern about being sued. The best way to reduce the chance of being sued is to know the ethical and legal standards and to follow them.
Laws often take center stage when what is most needed is a language for placing laws into an ethical context (Fisher, 2008). Fisher points out that taking a risk man- agement perspective can raise practitioners’ anxiety, which may lead them to focus on avoiding risks to themselves rather than considering their ethical obligations and the potential risks to clients. Zur (2010) contends that current risk management pol- icies pose several serious risks to clinical effectiveness. Risk management policies can erode the foundation of healing, damage the therapeutic alliance, and inhibit creativity. When following risk management advice, Zur believes therapists may be attempting to protect themselves at the expense of their clients. He maintains that the recent wave of risk management practices has propelled the profession in the direction of fear-based interventions that often compromise clinical integrity.
Course of Action in a Malpractice Suit
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Even though you practice prudently and follow the guidelines previously out- lined, you still may be sued. Malpractice claims are not reserved exclusively for the irresponsible practitioner. Clients may make allegations of unethical conduct or file a legal claim due to negligence, even though the counselor may have acted ethically and appropriately. In the event that you are sued, consider these recom- mendations by Bennett and his associates (1990):
• Treat the lawsuit seriously, even if it represents a client’s attempt to punish or control you.
• Do not attempt to resolve the matter with the client directly because anything you do might be used against you in the litigation.
• Contact the ethics and risk management services of your professional associa- tions, if applicable. If you consult with an attorney, prepare summaries of any pertinent events about the case that you can use.
• Become familiar with your liability policy, including the limits of coverage, and contact your insurance company immediately.
• Never destroy or alter files or reports pertinent to the client’s case. • Do not discuss the case with anyone other than your attorney. Avoid making self-incriminating statements to the client, to his or her attorney, or to the press. • Determine the nature of support available to you from professional associa-
tions to which you belong. • Do not continue a professional relationship with a client who is bringing a suit
against you.
Legal assistance is a must if the licensing board has opened an investigation. This usually occurs before the filing of a malpractice claim and can be just as dev- astating as a lawsuit. If you face going to court, you would do well to consult with an attorney and take steps to prepare yourself for your appearance. Ideally, you should consult with your professional association prior to any legal action. If you have concerns that any of your actions or omissions could lead to a lawsuit, it is wise to seek legal consultation as soon as possible.
Legal Liability in an Ethical Perspective
Legal liability and ethical practice are not identical, but they do overlap in many cases. Legal issues give substance and direction to the evolution of ethical issues. If you are involved in a malpractice action, an expert case reviewer will proba- bly evaluate your clinical records to determine whether your practice reflected the appropriate standard of care. Records are vital to review the course of treatment. How you document treatment may determine the outcome of the case. The case reviewer will probably look for deviations from your process of reasoning and application of knowledge in trying to determine whether there has been a gross deviation from the standards. As a practitioner, you cannot guarantee the outcome, but you are expected to demonstrate that you applied a reasonable approach to the presenting problem of your client. Although you are not expected to be perfect, it is beneficial to evaluate what you are doing and why you are practicing as you are. Engaging in self-reflection and dialogue with colleagues can go a long way toward reducing your legal liability and increasing your efforts to be an ethical practitioner.
This discussion of malpractice and risk management strategies is not meant to scare you or make you overly cautious. It is easy to be anxious over the possibility of being sued, but this is not likely to bring out the best in you as a practitioner. We hope our discussion of malpractice increases your awareness of the range of professional responsibilities and suggests ways you can meet these responsibili- ties in an ethical fashion.
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