oregon counseling association valley river inn – eugene, or 2013 fall conference pre-conference...
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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”
3. Boundary “Violations”3. Boundary “Violations”04/19/23 46
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