Oregon Counseling Association Valley River Inn – Eugene, OR 2013 Fall Conference Pre-Conference Workshop Ethical Issues in 21 st Century Clinical Practice.

Oregon Counseling Association

Valley River Inn – Eugene, OR

2013 Fall Conference

Pre-Conference Workshop

Ethical Issues in 21st CenturyClinical Practice

November 7, 2013

Presenter:Douglas S. Querin, JD, LPC, CADC-I

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Introductions & Overview

Who we are ….Who we are …. &&

WhyWhy we’re here we’re here

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CaveatsToday’s Comments are Not …

Legal Advice Treatment Advice In lieu of Consultation/Supervision

___________________Our Focus:

How to Manage the Clinical Environment … from an Ethical

Perspective

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Socrates had it Right…

Dialogue & Interaction … Help us Learn

Comments & Questions … Are Encouraged!

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A Preliminary Observation

Learning vs. Being Reminded

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Another Preliminary Observation

Mental Health Professions & Codes

Similarities vs. Differences04/19/23

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Our Road Map

I.I. Principles & ValuesPrinciples & Values

II.II. Ethics vs. LawEthics vs. Law

III.III.Informed ConsentInformed Consent

IV.IV.Boundaries Boundaries

V.V. Reporting MisconductReporting Misconduct

Now …. a Word about “Ethics”

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Professional EthicsBasic Characteristics

1. Regulate Conduct

2. Determined by Consensus

3. Change over time

Our Goal Today ….Pulling Back the Curtain on

Prof’l Ethics

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Professional Ethics Professional Ethics Largely Informed by…..Largely Informed by…..

Moral PrinciplesMoral Principles1. Do No Harm1. Do No Harm2. Promote Client 2. Promote Client

Welfare Welfare 3. Promote Self-3. Promote Self-

Determination Determination 4. Honor Faithfulness 4. Honor Faithfulness (Keeping Promises) (Keeping Promises)

5. Honor Equality5. Honor Equality6. Be Truthful 6. Be Truthful

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Professional Ethics Also Informed by….

Laws

Social Trends/Policies

Technology

Insur./Managed Care

Clinical Standards

Professionalism

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The Result:The Result:Competition between ….

Laws, Ethics Codes, Morals, Clinical, Professional, and Social

Responsibilities

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AND … Competition betweenAND … Competition between Individuals & Institutions Individuals & Institutions

ClienClientt

THERAPIST

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Deciding between Deciding between Competing Ethical Competing Ethical Responsibilities? Responsibilities?

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Let’s Assume …. An ethical issue has arisen in your clinical practice. There are potentially serious consequences to your

client depending on how you handle the matter. You resolve the matter and the outcome is very poor.

After the fact, you are asked: What Plan did you have, what Factors did you consider,

and what Resources did you rely on, in reaching the decisions you did in handling this matter?

How would you like to be able to respond?

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Having an Ethical Decision-Making Model

Just Might be … a Good Idea !!!

“While there is no specific ethical decision-making model that is most effective, counselors are expected to be familiar with a credible model of [ethical] decision making …”

Do we have a Plan (i.e., Credible Model)?

ACA Code of Ethics, Statement of Purpose, p. 3, (2005)

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How is Professional Conduct Regulated?

1. Licensing Boards &

Professional Associations 2. Legal Actions

Organiz’l Rules, Ag’mts, Contracts

3. (E.g., EAPs, Employers, Agencies, etc.)

A Brief Legal PrimerA Brief Legal PrimerThe LawThe Law

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Legal Actions

(1) Criminal: Government actions; Sanctions include fines or imprisonment

(2) Civil: Actions (non-criminal) by one Party claiming, gen’ly damages against another

(3) Administrative: Actions by State Regulatory Agencies (e.g., Licensing Boards)

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Civil Law Action: Malpractice

(1) Duty: Professional’s Responsibility to “Clients” (and others !) to conform to Recognized Standards of the Professional Community

(2) Deviation: From those Standards (aka Negligence; Breach of Duty)

(3) Damages: Physical, Emotional, Economic Injury or Loss

(4) Direct Link: Causal Connection

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The Realities of Civil The Realities of Civil LitigationLitigation

(i.e., Malpractice)(i.e., Malpractice) Fees & Costs Proof/Elements of Case Time & Expense Justifying Time & Expense

The “Major Case” rule Such as ……

Licensing Board Complaint vs. Malpractice Claim

Lic. Board Complaint

One issue: Regs violated?

Lawyer unnecessary

No fees or costs Relatively quick

resolution

Malpractice 4 Issues: Duty,

Deviation, Direct Cause, Damages

Lawyer necessary

Attorney fees Expensive/

lengthy

Now a word or two about Now a word or two about ……

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Informed ConsentInformed Consent

In the Beginning….

… there were Doctors

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What did Hippocrates tell us?

“… I will prescribe regimens for the good of my patients according to my ability and my judgment …..”

That is….. Physician knows best Dr. was “The Decider” Patriarchal; limited patient Autonomy

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Informed Consent Gone AwryIn the Name of Medicine….

Historically, Informed Consent was: Physician’s Prerogative Not Patient’s Right

Egregious Consequences: Tuskegee, Ala. 1932

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Patients’ Rights – Have Evolved

Consumers Lawyers

Canterbury v. Spence, 464 F.2nd 772 (1972), et al.

Doctor’s Prerogative Patient’s Right

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Chestnut Lodge

Osheroff vs. Chestnut Lodge (1980)Informed Consent & Psychotherapy

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Today

Informed Consent is …..

1. Req’d in All Health Care Professions2. Client’s Fundamental Right

- To Knowingly Accept or Refuse Tx 3. Professional’s Affirmative Duty4. An Active, not passive, Duty

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Remember….Remember….Informed Consent = Informed Consent =

Permission to TxPermission to Tx

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Permission to Treat Requires….

(1) Capacity…of this Client

(2) Voluntariness…by Client

(3) Sufficiency of Info to Client

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Quality of Informed Consent

(1) CONTENT – What’s Delivered

(2) PROCESS – How Delivered

(3) TIMING – When Delivered

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CONTENT (Clinical Considerations, Laws, Regs,

Codes, Risks) Extent/nature of services Limits of confidentiality Risks/rights, alternatives Uncertain outcome Right to accept/refuse Tx Right to participate in Tx planning Fees, Cancellations, & Collection policies Taping, Recording, Observation of

Sessions

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CONTENTInformation to Provide

Termination/Interruption of Service Both Planned & Unplanned Custodian of Record

Inform Client of Supervision Parental Consent Issues; Group Therapy Issues Coordination of treatment with other Tx

Providers _____________I/C Rules Apply to Each Person in Client Unit

(i.e., individual, couples, families, groups)

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CONTENTThe Challenge

Finding the Right Balance Too Much Detail: Legalistic &

Confusing Too Little Detail: Unhelpful &

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Informed Consent : PROCESS

Delivery Options

1. In Writing

2. Verbally

BOTH …are Necessary

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Informed Consent - Written

Informed Consent is too often viewed as a Risk Management Tool …

… a Legal Document… for Organiz’l Protection … to get Signed ASAP

Client Understanding ….. …. is often Not the

Priority!

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Plain Language

Some Recommendations1. Signatures: By All Parties2. Copies: To All Parties3. Document: Receipt … & Client’s Understanding

AND4. Plain Language, when possible

See, Flesch Readability Calculator

See, http://www.cdc.gov/healthliteracy/pdf/SimplyPut.pdf

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PROCESS – VERBAL

Informed Consent…Does Not end with client’s signature on

written document

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TIMINGWhen to Inform Client

Clients Change: Issues may change Clinical needs may change Interventions may change All the reasons for obtaining

Informed Consent in the first place continue to exist throughout therapy!!!

Continuing Responsibility

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What Ethics Codes tell us about Informed Consent

Address it at Start of Therapy……and Throughout Therapy:

“… as early as feasible” and as “circumstances may necessitate” (AAMFT)

“reassessed throughout” (AMHCA)

“ongoing part” of counseling (ACA)(ACA)

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Thorough Informed ConsentBenefits

Research suggests: >Client Autonomy >Respect >Trust >Buy-in >Adherence to Tx Plan >Speed of Recovery < Anxiety

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Boundaries &Boundaries &Multiple RelationshipsMultiple Relationships

Drawing Lines Wearing Different

Hats

&

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BoundariesBoundaries

Do we Do we needneed them? Why? them? Why?

Boundaries – 3 TypesBoundaries – 3 Types

1. Classic/Traditional 1. Classic/Traditional BoundariesBoundaries

2. Boundary “Crossings”2. Boundary “Crossings”

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Boundary Types1. Traditional /Classic /Classic

Psychoanalytical perspective “Blank Slate” Transference Process

Keep Physical & Emotional Distance Discouraged: Out-of-office Contact, Self-

disclosure, Touch, Expressions of Familiarity/Warmth; Gifts

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Boundary Types2. Boundary “Crossings”

Modern Trend (“Crossings”): Crossing Traditional Boundaries Beneficial to Client/Supervisee Low risk of harm Not Unethical per se Look at Context Multicultural Influences Acceptable w/in Prof’l CommunitySee e.g., ACA Code, Section F.3., p. 14.

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Boundary “Crossings”

Common Examples Therapist Self-Disclosure Accepting Modest Gift

Gentle Touch or Hug Attending Formal Ceremony Rural Communities Realities Inadvertent Boundary Crossings Grocery store, movie theatre, etc. Generally, occur by Choice/Chance

The InternetAssume your clients will see…..

1. All Online postings with your name 2. All your Facebook pages & postings (and

other social media sites) – unless secure privacy settings

3. All photos and other info posted by your “friends” that may identify you, unless they too have secure privacy setting

4. Match.com – Internet datingSearch Yourself Regularly on Internet

http://www.zurinstitute.com/onlinedisclosure.html

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BBoundary Types3. Boundary “Violations”

Signif Departure/Prof’l Standards Potential for Serious Harm:

Therapeutic Neutrality Power Diff.; Exploitation Threat to Relationship & Process

“Violations” – Start w/ Boundary Crossings and Progress; Occur Intentionally … Not Accidentally

Is this a “Crossing” or a “Violation”?

Considerations Client/Clinical – Presenting issue, mental

status, age, gender, culture, social support, etc.

Setting – In-Pt/Out-Pt, rural, etc. Therapy – Orientation, stage of therapy, etc. Therapist – Age, gender, experience, etc. Prof’l Community - Standards Purpose – Intent of therapist/client, etc. Possible Consequences – Harm,

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“MULTIPLE RELATIONSHIPS”

Basic FeaturesBasic Features Additional, Non-Therapeutic

Relationship Client Becomes something more:

Friend, business associate, lessor/lessee; romantic partner; debtor/creditor, fellow church, board member, etc.

Multiple Boundary Crossings/Violations Always some Potential Risk

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Multiple Relationships Variations & Considerations

Concurrent or Consecutive Promising a Future Relationship Includes Family Members & Significant

Others Generally Irrelevant:

Which relationship began first Who initiated; Client consent Whether occurred by chance/choice Professional vs. Non-Professional Length of Time; When began (start,

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Multiple Relationships Three Types

(1) Sexual/Romantic Relationships

(2) Non-Sexual/Non-Romantic

(3) Professional Role Changes

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Sexual/Romantic Sexual/Romantic RelationshipsRelationshipsEthics Codes Ethics Codes

Current Clients/Supervisees: All Codes Prohibit

Many Codes: Prohibit Relationships w/Client’s Family Members/Significant Others

Former Clients: Most Codes Prohibit; w/differing time limits; ACCBO, NAADAC, NASW totally prohibit

Former Romantic Partners: Prohibited Former Supervisees: Most Codes Silent No “True Love” Exceptions!!!

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Sexual/Romantic Sexual/Romantic Relationships Relationships

Sobering Statistics Sexual violations – 20% - 35% of

licensing board complaints filed against counselors & therapists (Falvey, 2002, p. 76)

“Across eight national self-report surveys, …nearly 7% of male & 2% of female therapists reported engaging in sex with at least one client.” (Ibid.)

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Sexual/Romantic Sexual/Romantic Relationships Relationships

Sobering Statistics

Therapist-Client sexual relationships make up:

18% of Malpractice claims41% of Malpractice claim payouts20% Licensing Board Complaints

Pope, K. S., & Vasquez, M. J. T. (2001). Ethics in psychotherapy and

counseling: A practical guide. San Francisco, CA: Jossey-Bass.

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Sexual/Romantic Dual Sexual/Romantic Dual

Relationships Relationships Demographics

Primarily middle-aged Male therapists Primarily younger Female clients Single Most Predictive factor?

Risk Management “Vicarious Liability” – Liability for

the conduct of those over whom you have a right/duty to exercise control

At Risk: Supervisors, Agencies, Employers

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Multiple Relationships

(2) Non-Sexual/RomanticThreshold Questions

Therapeutic Benefit? What’s the Purpose?

Potential Impairment of Prof’l Judgment? Harm to Client/Others? Repairable? Discussed w/Client? Informed Consent? Consultation? Documentation? Unavoidable? (e.g., Rural/Specific Client

Pop.) Accepted Standards w/in Prof’l

Community?

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Multiple RelationshipsNon-Sexual/Romantic

The Ethics Codes Ethics Codes – all essentially the same

Potential Harm Test: Avoid M/R with Clients & Supervisees that create risk of harm: impair judgment/objectivity, risk exploitation, result in undue influence

Potential Benefit Test: Avoid M/R unless “Potentially Beneficial ” (See, ACA – A.5.d & F.3.e.)

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Multiple Relationshipswith ….. Former Clients

Factors Considered by Ethics Boards: Amount of time passed since therapy Nature and duration of therapy Client’s personal history & diagnosis Likelihood of adverse impact/exploitation Discussed/Planned Before End of Therapy Informed Consent - Thorough Consultation & Documentation in File

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Multiple Relationships (3) Changing Professional Role

Changing Professional RolesExamples: Changing from Couples, Family, Group

Individual Counseling…and vice versa

Practice Tips when Changing Rolesa. Obtain Informed Consent: Advise of Potential

Consequences & How information from First Role may affect Second Role

b. Therapy Forensic Role (and vice versa): Risky!

c. Consult when appropriate; Always Document

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Multiple Relationships Risk Management - Tips

Prior to & During M/R1) Obtain Signed Informed Consent

2) Identify & Discuss issues, risks, benefits

3) Suggest 2nd opinion

4) Clarify client’s right to w/draw

5) Periodically Revisit & Document

- Rationale/Potential Benefit

- Consequences & Risks

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The Take-Away

1. Boundaries & Dual Relationships are NOT inherently unethical2. They may be Therapeutically Appropriate … or Potentially Harmful3. They must to be carefully evaluated, cautiously used, appropriately documented

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Multiple Relationships Risk Management Caveat

If issues are raised about Propriety of

a Multiple Relationship…

…the Professional will bear The Laboring Oar

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Reporting Prof’l Reporting Prof’l MisconductMisconduct

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Self-ReportingORS 676.150

Duty to Self-Report All Codes: Prohibit - Practicing while

“Impaired” Must Self-Report (10 days):

Misdemeanor/Felony – Conviction Felony – Arrest

Most Codes require Self-Reporting (often w/in 30 days): Civil Lawsuits (practice related) Prof’l & Regulatory Sanctions

Failure to Self-Report Potential Discipline

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Reporting: Other Health Care

ProfessionalsORS 676.150

Licensed* Health Professionals must Report Other Licensees, including Licensees of Other Health Licensing Boards, who engage in:

(a) “Prohibited Conduct” OR (b) “Unprofessional Conduct”

* Includes regulated pre-licensed professionals

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Reporting Professional Misconduct of

Others

“Prohibited Conduct” = Criminal Acts…

(1) … against a patient or client, or

(2) … such acts that create a risk of harm to a patient or client

Reporting Professional Misconduct of

Others“Unprofessional Conduct” = Conduct …

unbecoming a licensee, or detrimental to the best interests of the

public, contrary to recognized standards of

licensee’s professional ethics endangers the health, safety or welfare of

a patient or client Failure to Report Potential Discipline

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Reporting Professional Misconduct of

Others Reporting licensee must have “reasonable

cause to believe”; Includes credible hearsay Shall make report to appropriate licensing

board Exception: When state/federal law prohibits

disclosure (e.g., Therapist – Client Confid’ty) Confidential Communications are

protected; Exempt from reporting Report w/in 10 days Civil Immunity – reports made in “good faith”

Reporting Professional Misconduct of

OthersSome Scenarios

Supervision & Consultation The client reveals misconduct by another health care professional Observations at the dinner partyThe inebriated professional

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Ethical Issues in 21st Century

Clinical Practice*

Thank you !

____________________

Douglas S. Querin, JD, LPC, CADC-I

[email protected]