Law and Ethics Final 623

Law and ethics final psyc 623 for harmel, pepperdine

informed consent

Process of informing clients about therapy, policies, and their rights so they can agree knowingly. Informed consent is the clinical and legal process of explaining the “rules” of therapy so a patient can decide if they want to participate with full knowledge of their rights and obligations. Simply put, it is an agreement that defines how the therapeutic relationship will work

Four elements that make Informed consent valid

Capacity – able to consent, not mentally or legally incapacitated 

Comprehension – understands info in plain language

Voluntary – no coercion. Do of free will 

Documented – recorded to patients file

when to seek informed consent

--"At the outset of treatment..."

--First or second session

--No later than the third session!

--"If it isn't written down, it didn't happen". lasts entire treatment

what elements go into informed consent

• Limits of confidentiality – harm to self/others, abuse reporting

• Client rights – voluntary, can terminate anytime

• Fees – cost, payment, insurance, extra services

• Cancellation policy – typically 24-hour notice

• Termination/treatment scope – length and expectations

Special disclosures – couples (couple = client), telehealth, therapist values, internet searches

Informed consent is good for

Length of treatment

• office policies

  • patient signatures

release of information is good for

12 months

• be sspecific about information

• patient signature

• mind can be changed, so document why they withdraw

CSI

• C – Communicated: Threat shared (by patient or reliable other)

• S – Serious: Imminent, serious physical harm (1-2 days)

I – Identifiable: Specific victim

CSI and additions to tarasoff

• Hedlund: includes foreseeable bystanders

• VA: seek past records if known history of violence 

• Peck 🔥: arson/property threats count (could kill people) 

• Menendez 👬: therapist threatened → therapy ends, no confidentiality

• Ewing: threat info can come from family/reliable other

MFT

marriage and family therapistC

CAMFT

ethics code violations

BBS

licensing complaints

Privacy

A person’s right to be free from illegal search or intrusion. LEGAL RIGHT. Can be overridden by LAW or abuse. client controls it.

privilige

A legal right to refuse to disclose therapy information in court. | Privilege is a legal right that allows communications in therapy to be withheld from legal proceedings. (LEGAL RULE IN COURT)

• Only exists in legal settings

• CLIENT HOLDS IT

  • can be broken when: client waives it, judge orders it, tarasoff or abuse reports

confidentiality

ethical promse between therapist and client to keep information private. This duty is not absolute; it is subject to specific exceptions where the public good overrides individual rights.

exceptions: threats, court orders, danger to self or others, abuse

bracketing

[ ] managing personal values to avoid contaminating the counseling process. We suspend our own values, a skill. Bracket our thoughts and feelings that are not aligned with the client's counseling goals. Be open-minded. Set aside biases 

conscience clause

allows therapists to refuse services based on religious beliefs (we don't have this in CA, but there is one for performing abortions for doctors) 

dueling ethics codes

discrimination (we do not discriminate based on sexual orientation or any population; promote social justice) 

• Competence; scope of. We do not practice outside of our scope of competence

• It is a duel, because it’s like, am i discriminating or can i really not work with this person because i am not competent enough? 

Conscience clause: what is it, why is it relevant to the Julea Ward case

• A conscience clause allows therapists to refuse services based on religious beliefs. It’s relevant to the Julea Ward case because she refused to counsel a same-sex couple for religious reasons, highlighting the conflict between religious freedom and anti-discrimination ethics (competence vs. discrimination)

Bellah vs Greenson results

No clear ruling. Tarasoff was NOT officially extended to suicide in Bellah v. Greenson.

forgiving the co-pay

Waiving a client’s out-of-pocket fee.

• Allowed only with insurer approval (must be disclosed)*****

“Insurance” diagnosis

Diagnosis submitted to insurance to justify treatment/payment. So that the insurance has a reason to pay for it. Must give the correct one even if they won’t pay for it. 

• Must be accurate (DSM-based)

• Misdiagnosing = insurance fraud (e.g., upcoding, false diagnoses). Consequences: discipline, license loss, possible criminal charges

• Errors: must be corrected immediately with the insurer

Key idea: Always diagnose truthfully, not for coverage.

fraudulent billing & diagnosing:

lying on bills or diagnoses to make money. Can lead to BBS action, license loss, or jail.

• I.e. Wrong diagnosis, upcoding (giving a more serious diagnosis)

• report mistakes to insurance company ASAP

Dual or multiple relationships:

therapist has a professional role and another role with the client or someone close, including promises of future roles; avoid if it could harm or exploit the client or will impact the effectiveness of therapy.

Look at the context.

Before engaging in a behavior that creates a dual relationship, clinicians are advised to ask: "Is this detrimental or not conducive to therapy?" and "Could this behavior exploit the patient?"

Consequences/penalty for a therapist who sexually exploits client:

Current Patient: Sex = crime, automatic license revocation, civil & criminal liability (client would have to report it) 

“Former patient” with regard to the definition of sexual exploitation

Illegal for 2 years after termination; therapist must prove no exploitation

Mandatory brochure

Therapy Never Includes Sexual Behavior

when to give Therapy Never Includes Sexual Behavior

If the client reports sex with a former therapist (give directly) 🫱

when to report the therapist for sex with a client

• Adults: client reports (therapist supports, doesn’t file)

  • Options for client to report: 

    • Licensing board (BBS)

    • Professional org (CAMFT)

    • Civil lawsuit

    • Criminal report

• Mandated report only if****: the victim is a child, an elder, or a dependent adult

Types of barter

for goods/products and services

Goods/products barter

trade items → get appraised value (from a third-party person like barter escrow service)

services barter

•  trade labor → higher risk

requirements for barter

• The client must initiate 

• Must be non-exploitative/appropriate (not for sex or something)

• Shouldn't ruin the patient-client relationship  

• Written agreement required to be signed by both parties 

• Consider cultural and community context (is this a small rural community? Is it normal in the community?) 

Key idea: Allowed but carefully regulated (services = riskier)

record keeping for clinics, hospitals, and private practice

• Private Practice:

  • Adults → 7 years after termination

  • Minors → until age 25

• Clinics/Hospitals: Also follow ~7-year rule, but under separate statutes based on their state

Purpose: Ensure continuity of care + legal documentation

Seven year rule

How long therapists must keep records after treatment ends

• Adults: Keep records 7 years after termination of therapy

• Minors: Keep records until age 25 (7 years after turning 18)

subpoenas

asks person to come to court or an office. Respond in some way 

what makes a subpoena valid

notice to consumer, properly served (by a court clerk usually by hand, but can be online), issued by attorney

what is notice to consumer in a subpoena

patient knows about the subpoena being sent to the therapist, and I should also get written consent from client anyway (they know their records are being sought). Patient can object this.

Two types of subpoenas: what does each ask you to do

• Duces Tecum: records and appear in court [two teacups]

  • Legal court order to appear 

  • Bring records with you 

• Ad Testificandum: testimony only. Testify in court or other location 

• DO NOT RESPOND WITHOUT PATIENT CONSENT FOR SUBPOENAS!

duces tecum

• records and appear in court [two teacups]

  • Legal court order to appear 

  • Bring records with you 

Ad Testificandum

testimony only. Testify in court or other location 

court order

• Must respond with or without patient consent!!!!!!

• Stronger authority (from a judge)

• Overrides privilege → must comply

expert witness

gives expert opinion

fact witness

on case before legal action (typically the original therapist)

proper termination (4 elements)

1. Consult and document!

2. No current crisis for the patient 

3. Reasonable notice (enough time to process ending) 

4. Proper referrals

proper referral (3 elements)

1. Available (accepting new patients) 

2. Similar fee $$

3. Theoretical orientation appropriate

A judge can rule one of two ways when one party wants you to release the record and the other party refuses to allow you to release the record. What are these two possibilities?

third party rule and patient-therapist privilege

third party rule

• Records Released. If you talked in front of your partner, privacy is less strict. The judge may rule that because you chose to speak in front of a "third party" (your partner), you gave up your expectation of privacy.

patient-therapist privilege

• THE RECORDS ARE NOT RELEASED! Judge upholds the privilege. Protects the person who doesn’t want records shared.

  • Judge can say: “Privacy is more important—records stay confidential.”

when to report abuse

Knowledge, observation, or reasonable suspicion 

reasonable suspicion

is met when it is "objectively reasonable" for a professional in a similar position to suspect abuse based on available facts

how to report child abuse

phone immediately + written (36 hrs)

how to report elder/dependent

phone immediately + written (2 working days)

time frame to report child abuse

phone immediately, written report in 36 hours 

time frame to report elder/dependent

phone immediately, written within 24hrs/2days

what gets reported child

• Includes: sexual abuse, neglect, cruelty, unlawful corporal punishment

what gets reported elder/dependent

physical, sexual, neglect, financial, etc.; not mandated is psychological abuse 

Penalties for not reporting in both cases

• Standard failure to report is a misdemeanor punishable by up to 6 months in jail, a $1,000 fine, or both.

• Purposely not reporting increases the penalty to 1 year in jail, a $5,000 fine, or both

failure to report

6 months in jail, a $1,000 fine, or both.

PURPOSELY not report

1 year in jail, a $5,000 fine, or both

Privilege and minors: FC 3151, when the attorney holds the privilege

judge can appoint an attorney for the child in custody/legal cases.

• An attorney can assert or waive the child's privilege.

• The therapist removed from parent conflicts; the attorney can access records without breaking confidentiality.

• FC 3151 gives a child their own legal "voice" and assigns a neutral person (the lawyer) to decide if the child's therapy information should be used in court, which protects both the child and the therapist from the parents' conflict

Family law terms: as compared to older terms from civil law

Divorce → Dissolution

Plaintiff → Petitioner

 Defendant → Respondent

Alimony → Spousal Support

Divorce

Dissolution

Plaintiff

Petitioner

defendant

respondent

alimony

spousal support

Treating a minor without parental consent

• minors in California may consent to their own outpatient mental health treatment if specific criteria are met.

  • They are 12 years of age or older.

  • The health care provider deems them mature enough to participate intelligently in the outpatient services

• DOCUMENT

  • Attempt to contact the parent or legal guardian and document that contact, or document why an attempt was not made (e.g., if it would be detrimental to the treatment).

  • Understand that the treatment is generally intended to be short-term.

  • Inform the minor that the parent or guardian is not financially responsible for the treatment unless they explicitly agree to pay.

  • Document how the parent or guardian responded if they were contacted

Menendez ruling = results regarding audio tapes

Threats against a therapist end confidentiality and privilege, making therapy records admissible in court.

How did this ruling of menendez change Tarasoff for therapist

while the original Tarasoff ruling focused on the duty to protect third parties, the Menendez ruling extended the loss of confidentiality and privilege to situations where the therapist is the one being threatened, effectively ending the therapeutic protection of the client's communications

case law

refers to the body of law developed through judicial opinions and decisions issued by higher courts over time. made by courts (e.g., Tarasoff, Menendez, Ewing)

Written statute

written law. a law that is passed by a legislative body and signed into effect by a governor (at the state level) or the President (at the federal level) made by legislatures (e.g., Civil Code, WIC)

why is case law and written statute important

or liability (legal rules)  and maintaining a standard of care.

Difference between “duty to warn” (original Tarasoff decision) and Duty to Protect (more recent decision 2013)

• "Duty to warn" is an older, more specific legal term, mostly associated with the requirement to warn in cases like Tarasoff. 

• whereas "duty to protect" is the modern standard that mandates that therapists take all necessary steps—including, but not limited to, warning—to prevent foreseeable violence. Duty to protect has an overall safety goal

What does “take steps” mean

legal/ethical principle for client safety and to prevent harm. resulting from deinstitutionalization. Avoid restrictive measures.

When would you take steps

danger to self or others. Gravely disabled. When terminating therapy?  

What steps would you take?:

•  1- Increase Frequency 💬 2- Phone Contact  📲 3- Support System 🫂 4- Medication 💊 5- Adjunctive Treatment  6- safety plan/ Agreement 🫲 7-Hospitalization (last resort) 

In Tarasoff/Ewing (Danger to Others) situations, specific legal steps are required:

Make reasonable efforts to warn the intended victim(s). Notify the appropriate law enforcement agency

Rule of least restrictive treatment: O’Connor vs Donaldson

The primary outcome of deinstitutionalization of clinical treatment is the "Rule of Least Restrictive Treatment". This principle, associated with the Mental Health Systems Act of 1980, requires that clinicians take the least intrusive steps necessary to prevent harm, such as increasing session frequency or involving support systems rather than immediate hospitalization

The case established that mental illness alone is not a legal justification for involuntary, indefinite confinement

Record Keeping: Health and Safety Codes

1. View therapy notes- available within 5 days 

2. Copy of therapy notes- available within 15 days. Written request

3. Denial of copy – As a last resort. Could be turned into a subpoena or court order. Even if deny, licensed MD or psychologist of patient's choice can view file. Allowed to deny if it would be harmful to minor but document why i am denying 

4. Summary of record - available within 10 days 

Civil suit of malpractice – four elements

To prove malpractice, ALL of these must exist:

Duty of Care, Standard of Care, Demonstrable Harm, Proximate Cause

No harm = no malpractice, even if a mistake occurred.

***Demonstrable harm is based upon if the therapist is the “Proximate Cause” of the damages

standard of care - 4 elements

Reasonable therapist | ethics code, statute law, case law

when to seek consultation

Crisis/risk (suicide, homicide, abuse)

Patient not improving or unclear diagnosis,

Legal/ethical issues (custody, HIV, couples),

therapist stress, burnout, or countertransference,

Cultural/diversity concerns

when to get consent from patient

• when there is identifying information or demographic in consult. 

•  start of therapy and if goals/policies change (informed consent)

• Minors 12+ can self-consent if mature; otherwise, parent/guardian consent is required

• Written ROI required for third-party sharing (12 months)

• Needed for recordings or substitute therapists

What is professionalism?

acting with proper conduct, attitude, and appearance. Respectful, engaging, punctual, boundaries,

When do you have to practice professionalism?

• "student professionalism starts now"—meaning it must be practiced from the very beginning of a therapist's training. Respectful. Entire therapeutic process. Networking. 

Why is it important? What is it? (professionalism)

Reputation building/networking/career advancement, standard of care, liability prevention

burnout and stress

Coined by Freudenberger – “bright light bulb burned out”.

Signs: emotional exhaustion, physical depletion, irritability, impatience, inflexibility.

Higher risk: younger caregivers, agency workers, those with trauma, mid-career stress

• How to handle= Self-care: hobbies, time off, reading, Personal growth: therapy, introspection, Professional support: consultation, continuing education

• Referral: if burnout impairs competence ; Red flag terms: “manipulative,” “attention-seeking” → consult & document

countertransference

therapist’s reactions to a patient

• Classical: unconscious reaction to patient’s transference

• Totalistic: all conscious & unconscious reactions

• Three types:

  1. Patient’s transference

  2. Therapist’s own unresolved issues - archaic issues 

  3. Natural reactions to patient’s behavior - based on reality 

legal custody

• Right to make major decisions (health, education, religion)

physical custody

• Where the child lives/located

joint custody

•  Shared by both parents on decisions or living

sole custody

One parent has sole legal decisions custody or sole physical residence custody 

How to report 

• Child Report: phone immediately + written (36 hrs)

• elder/dependent: phone immediately + written (2 working days / 48 hrs) 

what gets reported

• Child: Includes: sexual abuse, neglect, cruelty, unlawful corporal punishment

• elder/dependent: physical, sexual, neglect, financial, etc.; not mandated is psychological abuse 

CAMFT/ACA

Ethics committee and code         

BBS

Licensing board

Attorney General

criminal allegations

standard of care

reasonable therapist

duty of care

established relationship

proximate cause

therapist is cause of harm

demonstrable harm

money damages

expert witness

gives expert opinion