Law & Ethics Final

the right of persons to choose what others may know about them and under what circumstances

the right of clients not to have information about them revealed during legal proceedings

ethical and legal responsibility to safeguard clients from unauthorized disclosure of information revealed during treatment.  So, the rule is “I must not disclose any information given to me by my client during the course of treatment

Mandated reporting situations:

Child abuse

Dependent adult abuse

Elder abuse

Dangerousness to self and/or others

Suicide

Dangerousness to others

• client request
• court-ordered breech 
• subpoena

• physical injury
• neglect
• sexual abuse
• mental suffering (only if it is severe and constitutes willful cruelty or unjustifiable punishment)

• assessment 
• call (ASAP)
• written report (must be within 36 hours)

• physical abuse
• neglect
• fiduciary abuse
• abandonment
• isolation
• abduction
• deprivation of goods an services

• Assessment
• call
• written report (with in 2 working days)

Only if you are in a primary health care setting

• Ideation  (not the strongest predictor)
• plan
• means
• impulse control
• homelessness/anger (women)
• past attempts (best indicator)
• severe depression
• family history of self-harm
• recent loss or stressful event

• High: voluntary hospitalization (can empower client) or involuntary hospitalization (5150)
• Moderate: Increase sessions, suicide contract, prevention resources, closely monitor situation
• Low: continue to monitor situation (it could change)

A therapist has a legal and ethical obligation to protect innocent people who might be harmed by a dangerous client—even if it requires breaking confidentiality

• high:  imminent threat = call police for hospitalization and warn the intended victim
• Moderate: take immediate steps to address anger (more sessions, anger management)
• Low: continue to monitor situation

.  “When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.”

the therapist must have an identifiable victim to warn or protect

a physician has a duty to prevent a potentially dangerous patient from inflicting harm.

• Warning the victim always required, if possible
• Extends duty to warn to anyone who might be near the intended victim and who might also be in danger

• Duty to commit a dangerous individual (warning intended victim is not enough)
• failure to obtain Jablonski’s prior medical history constituted malpractice.  --negligent failure to commit.

For all federal court cases, communications between licensed psychotherapists and their clients are privileged and protected from forced disclosure

Duty to warn if information re: client threat to another is communicated to the therapist by the client, a family member of the client, or a credible third party and leads the therapist to believe that the client poses a serious risk of grave bodily injury to another

1.Attempt to identify dangerous clients

2.Take steps to protect third parties from those clients judged dangerous

3.Treat dangerous clients to reduce their dangerousness

4.Take reasonable precautions by especially careful documentation

Minor: less than 18

emancipated minor:

• A minor who has entered a valid marriage regardless of whether or not the marriage has been dissolved
• A minor who is on active duty in armed forces of the United States
• A minor who has been emancipated by the court because it was in the minor’s best interests to do so

• The minor must be at least 14 years old
• The minor is willingly living apart from parents or guardian
• The minor is managing his/her own financial affairs
• The minor’s income is not derived from criminal activity

• Legal Custody:  The right and the responsibility to make the decision relating to the health, education, and welfare of a child
• Physical Custody: That a child resides with and is under the supervision of his/her parent(s) or guardian

To treat a minor (defined as a person under the age of 18), the consent of a parent with legal custody or a guardian is required for children under 12 years of age

Parents with an intact marriage:  Either parent acting alone may consent to mental health treatment for the child.

Parents who have divorced:  Request a copy of the custody order prior to the treatment

• In joint legal custody, either parent acting alone may consent
• In sole legal custody, the parent has the right to unilaterally make health care decisions for the child

Stepparent:  A stepparent does not have the authority to make health care decisions for a minor unless (s)he has legally adopted the minor.

Adoptive parents:  Adoptive parents have the same authority to consent to mental health treatment as do biological parents.  If adoptive parents are married—and not separated, either parent acting alone may consent to mental health treatment for the child.

Minors with unmarried parents:  A biological mother has the authority to unilaterally make health care decisions for a minor, whether or not she is married.  If there is no question as to the identity of the natural father, then he also has the right to unilaterally make health care decisions for the minor.  If biological parents disagree about the treatment, a court order may be necessary.

Legal guardians:  A guardian has the same right as a parent having legal custody of a child to give consent to mental health treatment performed upon the child.

Foster parents:  Foster parents do not generally have the right make health care decisions for their foster children—excepting for ordinary medical and dental treatment.  Legal guardians are the ones who make the major health care decisions for a child living in foster care.

nMinor 12+ years old may consent for mental health treatment if BOTH criteria are met:

• Minor mature enough (in opinion of attending professional person) to participate in outpatient services AND
• Minor would present danger of serious physical or mental harm to self/others without treatment OR minor is alleged victim of incest or child abuse

Minor 12+ years old may consent to outpatient mental health treatment or counseling services if, in opinion of attending professional person, minor is mature enough to participate intelligently in mental health treatment or counseling services

• Arrangements often involve therapy and/or parenting classes
• Parents sign a reunification plan
• If parents and CYFS don’t agree, parents can request a formal hearing before a juvenile court judge
• If children are removed, they are placed in foster homes or a juvenile center and parents must do what the court orders for reunification to occur
• Parents need to follow through:
• Up to 12 months, the court presumes it is in the child’s best interests to be reunited with parents
• 12 to 18 months, presumption decreases
• At 18 months, court presumes “stability” is in the child’s best interests (i.e., remaining in the foster home)

• client owns the contents
• therapists owns the physical documents

• Client has right to complete access
• Authorized client representatives (e.g., parents, guardians, conservators, beneficiaries or personal representatives of deceased clients)

Requests for access must be written and must specify what is to be reviewed (which documents)

• Within 5 working days, records must be made available during regular business hours
• Within 15 days after request received, copies must be transmitted to requestor
• do not leave client alone with original records

• Denial of access allowed if adverse or detrimental consequences to client
• Denial of access can be grounds for a lawsuit
• Therapist must have a very sound rationale for denial of access

• Note the date of request, reason for request, description of adverse consequences
• Inform the client of your decision and that he/she has a right to have another therapist review records
• Permit another clinician (chosen by the client) to access the records
• Note whether or not another therapist was directed to do so by the client

• Minimum of 7 years following discharge (hospitals) – 10 years is best (at present)
• Minors:  At least 1 year after minor turns 18 years of age

• Identifying data
• Background/historical data
• Diagnosis/prognosis
• Treatment plan
• Informed consent
• Progress notes
• Termination summary

• Personal opinions
• Discussions regarding a third party
• Sensitive information
• Past criminal behavior (unless the client is seeking treatment to avoid conviction)

storage and maintenance of records

• privacy rule
• transaction rule
• security rule
• enforcement rule

• obtain authorization to release information
• adopt privacy policies and procedures
• provide information regarding privacy and access right to clients
• adopt safeguards
• train staff
• consequences for breaching rules
• accounting procedures
• complaint procedures
• document compliance with HIPPA
• duty to mitigate
• written acknowledgment obtained of privacy practices notice

• hospitals/clinics
• managed care organizations
• group practices
• solo practitioners who use electronic transactions

the transmission of information between two parties to carry out financial or administrative activities related to healthcare

• leased lines
• dial-up lines
• private networks
• transmissions physically moved from one location to another using magnetic tape, disk, or CD media 
• computer faxes

requires use of a standard format for claims for services

• assues security and private communication and maintenance of confidential information 
• deals with physical infrastructure

• dates and times of services
• medications
• test results (even raw data)
• diagnosis
• treatment plan
• prognosis and progress notes

• contents of sessions
• impressions regarding client
• details of conversations
• process note entries

no false, misleading, or deceptive statements

no commission or rebates for referrals

do not offer services to a person who is already receiving services from another therapist except

• by agreement 
• after termination

both oral and written consent prior to providing telehealth services in California

• software usage
• encryption
• know limitations
• media competence

assess to see if distance therapy is appropriate for the client

electronic transmissions and records need to be encrypted

do nothing that will negatively impact the client's welfare

• duty
• breach of duty
• injury
• causation

• sexual misconduct
• breaches of confidentiality

to determine whether the studies conducted are ethically acceptable

• criminal: involves moral blame that require moral sanctions.  Acts against society
• civil law: assigning responsibility for harm and determining amends to injured party

evidence

• beyond a reasonable doubt, 99% range
• clear and convincing evidence, 75% range
• a preponderance of evidence, 51% or more (malpractice uses this)

• to help focus the issues addressed at trial
• to help save the facts of the case
• can lead to out of court settlement 
• depositions 
• interrogatory

• expert: a person with special knowledge that can help a jury make a decision 
• fact: has personal knowledge of the situation of event relevant to a legal proceeding

subpoena 

• issued by an attorney
• any information can be solicited 

court order

• issued by a judge
• court ordered specifies what material is to be released