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Pepperdine Master’s ProgramProfessional Ethics and the Law

Pamela H. Harmell, Ph.D.PSY10910

Introduction to CourseEstablishing Malpractice

Six Ways L&E InteractDeinstitutionalization

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Course Requirements

• Three ring binder• WORST CASE SCENARIOS!!!

– Most bizarre situations…• Student’s neurosis!• I know what you’re thinking…• Syllabus & First week handouts

– Quizzes– Midterm and final exams– How to get powerpoint slides for class

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PreQuiz

1. In California, what is the age of majority? When is an individual no longer legally a minor?

Answer:

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PreQuiz

2. Name three ethical considerations you must examine prior to accepting a new client for psychotherapy:

Answers:

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PreQuiz

3. What is the present status of HIV and AIDS with regard to Tarasoff and duty to warn?

Answers:

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PreQuiz

4. How many supervised hours must you accrue in order to take the MFT licensing exam in California?

Answers:

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PreQuiz

5. Is domestic / partner abuse a mandated report situation for California psychotherapists?

Answers:

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PreQuiz

6. When can a person in California call him or herself a “psychologist”?

Answers:

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Proper Professional Terminology Proper Professional Terminology

LMFT LMFT

IMF IMF

LCSWLCSW

SW InternSW Intern

PSYCHOLOGISTPSYCHOLOGISTTrainee, Intern,Psychological AssistantTrainee, Intern,Psychological Assistant

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Practice Vignette

Rosa, a 40-year-old Cuban American woman seeks consultation with you because she believes her teen-age son Emilio is considering suicide. She tells you that Emilio has been away at summer camp for ten days, but she has not heard from him even though she has written him twice. Then yesterday while cleaning his room, she found a DVD he made where he says he feels like “a nothing” and doesn’t want to “take up room in his mother’s home” anymore.

According to Rosa, Emilio is normally a friendly and outgoing kid who has never been in any trouble; however the week before he went to camp, his girlfriend broke up with him. He was so depressed he went to bed for the weekend.

Rosa also tells you Emilio’s father is an alcoholic who rarely interacts with Emilio. Rosa works days while Emilio is responsible for watching over his two younger sisters until she gets home from work. Recently his sisters have begun hanging out with a dangerous crowd and Emilio told Rosa he is worried about them.

Rosa wants you to see Emilio as soon as possible and wants to know if you think she should bring him home from camp early.

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Treatment PlanningFILL IN THE BOXES

L&E Dx ??????? Tx Plan

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Theoretical OrientationReview

• Development of Psychopathology– Origin of symptoms

• Rationale for Treatment– Crisis intervention– Treatment of legal or ethical issues

• Different than long term therapy

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CCARQ

The Five AlwaysFILL IN THE BOXES

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Relationship Between L&E

Laws Ethics

“Have to”Mandatory

“Ought to” Should

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TWO ELEMENTS OF LAW

STATUTE

Legislative ProcessCodified Thereafter

CASE LAW

Higher Court’s RulingBecomes Precedent

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How L&E Interact

#1 Ethical & Legal - Example: Not breaching confidentiality

You are treating Lindsay Lohan and are dying to tell your partner about your famous patient… in fact you are even mentioned in people magazine by Lindsay in an article where she comments upon her wonderful “therapist” without saying your actual name. Even though it is very hard, you never tell anyone except your own therapist.

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How L&E Interact

#2 Ethical & Illegal – Example: Not following a subpoena

Example: You receive a subpoena from Gwyeneth Paltrow’s attorney requesting you to release records from the Conscious UN-coupling counseling you did with her and Chris Martin . Chris tells you NOT to release records to Ms. Paltrow’s attorney nor testify. You refused to release the mutual records at this time.

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How L&E Interact

#3 Ethical & Alegal – Ex: Applying a sliding scale / pro bono

The Hollywood writer you began seeing six months ago at your full fee of $250 per hour failed to sell his script and is now living in his car. He is terribly depressed and you have decided to continue seeing him pro bono until he gets back on his feet rather than refer him to the Hollywood Free Clinic.

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How L&E Interact

#4 Unethical & Legal – Ex: Following a subpoena (vs #2) NOT following a subpoena

Here, you become so intimidated by Ms Paltrow’s attorney, you fail to seek a consult, fail to follow your own good judgment, and you quickly pack up the original (!!!) records without contacting Mr. Martin’s attorney and send them off to Ms. Paltrow’s attorney as per the subpoena.

This is the identical question as #2 with the opposite answer. Thus: UNETHICAL and LEGAL.

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How L&E Interact

#5 Unethical & Illegal – Ex: Breaching confidentiality (vs #1) NOT breaching confidentiality

You just couldn’t stand it! You told your business partner after having too many martinis that your patient is Lindsay Lohan! You even pulled People magazine out of your briefcase (which you can’t stop carrying around) to review the part that mentions you as “the therapist.”

Unfortunately the partner is not a therapist, and fails to understand the concept of confidentiality. Your partner quickly forgets the promise to keep your “secret” and tells a few “BFFs” at work, who tell their BFFs, and word spreads in this small town.

On your message machine, Lindsay’s people tell you she won’t be coming back to therapy because it got back to Lindsay you have been using her celebrity to get attention and that you will be hearing further from her attorney and the licensing board.

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How L&E Interact

#6 Unethical & Alegal – Ex: Doing harm no law prohibits

Donald Trump’s assistant (a good friend of yours who owes you a favor) calls you to make an appointment for Donald and Melania for couple’s counseling since their second child was born. You begin to debate whether now is the time to increase your fee to what expert Beverly Hills and Brentwood psychotherapists charge who have been doing this work for decades. Even though you have been licensed for six months, didn’t you get a good education, and good training? Don’t you deserve the big money too? It crosses your mind you really should refer such a sophisticated and complex couple to a more experienced therapist or at least immediately get good consultation… Hummmm… But in the end you decide to charge $500 per hour to start and just “give it a try because he’s been married so many times, what’s one more divorce?”

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Four MechanismsHolding You Accountable

1. Ethics Committees

2. State Licensing Boards

3. Civil Suits of Malpractice

4. Criminal Allegations

• More on following slides

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Regulatory Bodies

• NEW CODE • JUNE 2010

(1) Ethics Codes - Psychologists(1) Ethics Codes - Psychologists

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Regulatory BodiesRegulatory Bodies(2) Licensing Boards(2) Licensing Boards

BBS BOP

2015

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WITNESSES

Types of Witnesses

EXPERT

Generally entersAfter case is at Legal stage . BothSides have their Own Experts.

FACT or PERCIPIENT

Is on the “case”Prior to it going beingA legal issue . GenerallyThe treating thrapist

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(3) Requirements for Civil Suit of Malpractice

Establishing Liability - All Four Required Establishing Liability - All Four Required

DUTY OF CARE DUTY OF CARE

STANDARD OF CARE STANDARD OF CARE

DEMONSTRABLE HARMDEMONSTRABLE HARM

PROXIMATE CAUSE PROXIMATE CAUSE

Relationship Established Relationship Established

Reasonable TherapistReasonable Therapist

Harm ShownMoney Damages Harm ShownMoney Damages

Due to something therapist did or failed to do Due to something therapist did or failed to do

• Ethics Codes• Statute• Case Law

• Ethics Codes• Statute• Case Law

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Practice Vignette - Malpractice

Counselor Smith gets a call from patient Jane who is in recovery three months. She is terribly upset because her significant other has broken up with her. When Counselor Smith calls her back upon request, he tells her “Really Jane, this is nothing to be so upset about. You are over-reacting as usual. That person was not worth crying over. Once again your judgment is way off! Get off the couch, get into some nice clothes, and have a coke at the local bar. Try to meet someone better. I will see you at our next appointment where I hope you will have some good news to tell me about this weekend!”

Jane feels worse after this phone call. As the weekend progresses she becomes suicidal. Feeling as if she cannot call Counselor Smith, she overdoses on her antidepressant medication. Fortunately her friends find her and she is hospitalized.

With months of therapy with a new therapist, Jane seeks legal counsel who helps her file a civil suit against Counselor Smith for patient abandonment and malpractice.

Using the four legal criteria from the next slide, evaluate if Jane has a case.

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REVIEW• Duty of Care

– Should be established by third session• Standard of Care

• Demonstrable Harm• Proximate Cause

Establishing Liability - MalpracticeEstablishing Liability - Malpractice

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• Attorney General Action • Licensee gets investigated• Generally violation is egregious

– Sex with patient– Insurance fraud

(4) Criminal Allegations(4) Criminal Allegations

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Continuum of Mental Health

PSYCHOSIS• Decreased functioning• Thought disorder• Perceptual difficulties

NEUROSIS• “Normal” functioning• Emotional disorder• Personal difficulties

• Hallucinations• Delusions

• “Three Christs of Yipsilanti”• Illusions

• Anxiety• Self-doubt• Self-conscious• Guilt-prone• Insecure• Low self-esteem

US

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Deinstitutionalization

• Mid-20th Century– Hospital conditions deplorable– Calls for reform– Patients got minimal attention– Tied to their beds

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Deinstitutionalization

• Result of joint commission of 1961• To protect patients from institutionalization

– Problems assoc with hospitalization– Decreased self-esteem– Decreased self-worth– Decreased ability to cope and functioning

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Deinstitutionalization

• Maintain patients in community• Results of Commission:

– Alternative Care• In home programs• Funding to families• Day care• Board and care• Socialization centers• Outpatient community mental health centers

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Deinstitutionalization

• Decrease in hospitalization– 1955 = 560,000– 1981 = 125,000

• Results – patients dumped into community• Unprepared to handle the outside• Became homeless – community resistance• NIMBY

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NIMBY

N –

I –

M –

B –

Y –

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Deinstitutionalization

• Patient’s Rights – O’Connor v. Donaldson– Florida, 1957– Father complained about son– Hospitalized 14 years– US Supreme Court

“One cannot be in custodial confinement against one’s will simply for being mentally ill…”

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Patient’s Bill of Rights

Mental Health System’s Act (1980)Can wear his or her own clothingCan have pencil and paperCan contact county designated advocate

The “Rule of Least Restrictive Treatment”- Increase sessions- Support system- Meds consult- Contract- Adjunctive treatment

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SIX MOST IMPORTANT WORDSIN LIABILITY PREVENTION

CONSULT DOCUMENT

CONSULT DOCUMENT

CONSULT DOCUMENT

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Senate Bill 7042014

Senate Bill 7042014

B&P CODE EXAMINATION CHANGES Revises and recasts examination requirements for persons seeking licensure as an MFT, LCSW, or LPCC, effective January 1, 2014.Primary Changes:1. Applicants must pass a California LAW AND ETHICS

examination and a clinical examination2. Must pass the LAW AND ETHICS examination in order

to take the clinical examination• Applicant must pass the LAW AND ETHICS exam

at time of registration for licensure exams3. Applies to applicants who have not passed both current

sections of the licensing exam