Contemporary Ethical and Legal Challenges

in Mental HealthUniversity of South Alabama

Mobile, AlabamaMarch 11, 2016

Meet the Presenter

Theodore P. Remley Jr.JD, PhD, NCC, LPC, LMFT

Contemporary Ethical & Legal Challenges in Mental Health

Theodore P. Remley, Jr., JD, PhD, NCC, LPC, LMFTMarch 11, 2016

University of Holy Cross

New Orleans, Louisiana

Helping clients….and protecting yourself

Ethical vs. LegalStandards of Conduct• Ethical

• "What should an ethical mental health professional have done in this particular situation?"

• Legal

• "What would a reasonable similarly educated mental health professional practicing in this community have done in this particular situation?"

BASIC PRINCIPLESin ADDRESSINGLEGAL ISSUES IN MENTAL HEALTH

• Keep current on issues – read and go to workshops

• Legal question? Request legal advice

• Consult with colleagues when making difficult clinical decisions

• Shift responsibility to superiors when in possible

• Purchase personal professional liability insurance

When making ethical or professional decisions in

mental health…

• Consult with your colleagues who work in your setting or in similar settings

• Consult with experts

• Read the ethical standards of your profession and articles from journals

EMPLOYEE RESPONSIBILITIES

• Follow policies and procedures

• Follow orders of your supervisor

• Maintain current up-to-date job description

• Winning a battle with your employer doesn’t help if the employer later wins the war

CONFIDENTIALITY AND PRIVILEGED COMMUNICATION• Confidentiality

• An ethical principle

• Privileged Communication

• A legal principle

• A statute is required

• A right of a client; not of a mental health professional

Counseling Parties Involvedin Divorce

Children of Divorce

&

Child Custody Disputes

Legal System Recognizes Individuals; not Families

• Conflicts with the systems way of dealing with families.

• A couple may begin therapy as a family unit, but when they separate or divorce, the adversarial legal system recognizes their legal rights individually.

• Ethical duties owed to minors

• Legal duties owed to parents or guardians

• Parents probably have a legal right to know contents of counseling sessions

• Be diplomatic in trying to preserve a minor client’s privacy and satisfy a parent’s demand for information

• Non-custodial parents have many of the same rights as custodial parents

Minors as Clients

Stay out of court…if you’re not an expert witness!

Reasons mental health professionals

might go to court• To respond as a defendant to allegations of wrong-doing as a

mental health professional.

• To serve as a fact witness after making a report of suspected abuse or neglect.

• To serve as a fact witness in a child custody hearing.

Reasons (con’t)

• To serve as a fact witness when a client has been accused of committing a crime or when a client has been a victim of a crime.

• To serve as a fact witness when a client is a part to a civil law suit (such as a personal injury law suit, a real estate transaction, or an employment related law suit).

Reasons (con’t)

• To serve as an expert witness in a criminal or civil law suit.

General Advice

• If you’re not getting paid as an expert witness, tell clients you will not attend court on their behalf.

• If validly subpoenaed to a deposition, hearing, or trial, answer only factual questions. Answer with very short responses. Offer no opinions.

• If asked your opinion, state, “I do not have enough information to form a professional judgment regarding that.”

Being an Expert Witness is an Option for many mental health professionals

• Child Custody Evaluators

• Rehabilitation Experts

• Malpractice Experts

What does it take to be an Expert Witness?

• Specialized Knowledge

• Training in providing specific types of expert testimony (child custody, rehabilitation, etc.)

• Loads of self-confidence

• Thick skin

Adversarial System

• LAWYER'S ROLE

• JUDGE AND JURY'S ROLE

• GENERAL WITNESS'S ROLE

• EXPERT WITNESS'S ROLE

When making ethical or professional counseling

decisions…

• Consult with your mental health professional colleagues who work in yours or in similar settings

• Consult with experts including your former university professors

• Read the ethical standards from your profession and articles from journals

• Use common sense and professional knowledge you have gained

BASIC PRINCIPLESIN ADDRESSINGLEGAL ISSUES IN COUNSELING

• Keep current on issues – read and go to workshops

• Legal question? Request legal advice

• Consult with colleagues, not lawyers, when making difficult clinical decisions

• Shift responsibility to superiors when in possible

• Purchase personal professional liability insurance

These situations put mental health professionals more at risk for being sued for malpractice than any other

Managing a Client who may be At Risk for Suicide or Violence

Difference when Client may be At Risk for Violence

• Warning intended victim

• Possibly calling police

Document in your records

• what led you to wonder whether the client was at risk

• how you reached the conclusion the client was not at risk

If the client is a minor, inform the client you must inform a parent or guardian that you talked with the client and determined the client was not at risk

If you determine a client is not at risk for suicide or violence…

• You have to take actions that will be very disruptive to the client and his or her family

• If the client is a minor, you must notify a parent or guardian, and if the client is an adult, you must notify some family member or interested adult

If you determine a client MAY BE at risk for suicide or violence…

• Notify your supervisor and follow any directives he or she may give

• If agency policies or your supervisor tell you to do something different than my advice, do what your agency or supervisor tells you to do

• Document any consultations you have completed in your case notes

Client MAY BE at risk (con’t)

• Explain to your client you have to tell parents, guardians, or others so they can help

• Try to calm your client, but do not minimize the situation. Explain what is likely to happen from this point on

• Contact a parent or guardian if your client is a minor, or a family member of friend if your client is an adult and tell the contacted

person he or she must come

immediately and take

charge of your client

Client MAY BE at risk (con’t)

• If no one can be found or no one is willing to come to help, call an ambulance and say that your client needs to go to a hospital for an assessment

• If someone shows up, have the person agree to take responsibility for watching your client and having him or her evaluated

Client MAY BE at risk (con’t)

• Require the person who shows up to sign a form saying they will take responsibility for your client

• Document everything you do and say in your notes

• When your client returns to you for services, insist that you be given permission to contact the person who determined the client was not at risk for suicide or violence

Client MAY BE at risk (con’t)

• Call the physician or other professional who made that determine and ask him or her what is expected from you and under what circumstances you should send the client back for another evaluation

• Document your conversation with the treating physician

Client MAY BE at risk (con’t)

Assisting Family Members of Clients who May Be at Risk for Suicide or Violence• It is best practice, but probably not required by ethics or law

to assist family members once a client has been referred to be evaluated

• The systems are complicated and family members need your help

Guidelines for Case Notes

• Keep any notes that help you be a more effective mental health professional.

• Keeping notes is not required by common law, but is standard procedure and often is required by accrediting agencies, insurance companies, and sometimes licensure boards.

• Assume any note you write will someday become public.

Guidelines for Case Notes

• Do not destroy notes created for self-protection

• Never destroy notes after you receive a subpoena or if you think you might be receiving a subpoena in the future

Case Notes (Con’t)

• Keep notes secure

• Length of time notes must be kept varies

• Destroy case notes after a set period of time and be consistent

• Do not destroy notes create for self-protection

• Never destroy notes if you have any reason to believe they might be subpoenaed

Documentation for Self- Protection

• It’s impossible to document in detail all treatment interactions

• However, some interactions have to be documented

• Documentation is required when a mental health professional is concerned that a complaint might be filed with • An association ethics committee

• A licensure or certification board

• An employer

• A court of law through a malpractice law suit

Documentation (cont.)

Some example situations of when to keep records:

• Someone accuses a mental health professional of unethical or illegal behavior

• A mental health professional reports a case of suspected child abuse

• A mental health professional determines that a client is a danger to self

• A mental health professional determines a client is a danger to others

• Client is involved in legal controversy

Documentation (cont.)

• Documentation begins when mental health professional becomes aware it might be necessary

• When documenting for self-protection, as much detail as possible should be included

• Include only factual information

• Best to create very soon after conversation or event

• Indicate date and time anything is written

Documentation (cont.)

• What happens if you realize you should have been recording information sooner?

• Write a summary of what has happened up to that point in time, include date and time summary was written

Documentation (cont.)

• Maintain a documentation file that includes

• Originals of notes written to mental health professionals

• Copies of notes written to others

• Copies of relevant papers mental health professionals cannot keep for themselves

• Other papers that might be relevant to the situation

• Keep records kept for documentation secure – never release originals of records

Types of Subpoenas

• For you to answer written questions in writing

• For you to appear at a deposition, hearing, or trial

• For you to provide copies of your records

• For you to appear with copies of your records with you

If You Get a Subpoena

• Notify your immediate supervisor and request assistance

• Do as you are told by your supervisor or agency attorney

• If you have to appear in court, ask that the agency attorney prepare you, and go with you, if possible

• If you have to turn over records, turn over copies; not originals

Suggested Practicesto Avoid Court Appearances

when Counseling Children or Families of Divorce

• Avoid all court proceedings that you can

• Say “No” if you are asked to attend

• If you get a subpoena, consult with a lawyer

• Answer factual questions with short answers

• Do not give an opinion

• Avoid taking sides

mental health professionals in Court

• Stay out of court, if possible

• Avoid being cast as an expert witness

• Remember the phrase,

“I don’t have enough information to form an opinion about that.”

Consulting with Your Own Attorney

• Be honest and give complete information

• Ask questions if you don’t understand

• Educate the attorney about counseling

• Provide additional information

if you believe the advice

you are being given is not correct

• Follow directives even

if you do not agree

Talking to AnyOther Attorney

• Be careful and say very little

• Remember that nothing is “off the record”

• Avoid giving any opinions

• Explain past diagnoses or opinions carefully

• Say you are unsure if you are unsure

• Be courteous, but firm

• If you feel threatened, stop the meeting and reschedule with your supervisor or your own attorney present

Questions?

Thank You!