Contemporary Ethical and Legal Challenges in Mental Health. University of South Alabama Mobile, Alabama March 11, 2016

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1 Contemporary Ethical and Legal Challenges in Mental Health University of South Alabama Mobile, Alabama March 11, 2016

2 Meet the Presenter Theodore P. Remley Jr. JD, PhD, NCC, LPC, LMFT

3 Contemporary Ethical & Legal Challenges in Mental Health Theodore P. Remley, Jr., JD, PhD, NCC, LPC, LMFT March 11, 2016 University of Holy Cross New Orleans, Louisiana

4 Helping clients. and protecting yourself

5 Ethical vs. Legal Standards 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?"

6 BASIC PRINCIPLES in ADDRESSING LEGAL 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

7 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

8 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

9 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

10 Counseling Parties Involved in Divorce Children of Divorce & Child Custody Disputes

11 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.

12 Minors as Clients 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

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

14 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.

15 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).

16 Reasons (con t) To serve as an expert witness in a criminal or civil law suit.

17 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.

18 Being an Expert Witness is an Option for many mental health professionals Child Custody Evaluators Rehabilitation Experts Malpractice Experts

19 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

20 Adversarial System LAWYER'S ROLE JUDGE AND JURY'S ROLE GENERAL WITNESS'S ROLE EXPERT WITNESS'S ROLE

21 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

22 BASIC PRINCIPLES IN ADDRESSING LEGAL 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

23 Managing a Client who may be At Risk for Suicide or Violence These situations put mental health professionals more at risk for being sued for malpractice than any other

24 Difference when Client may be At Risk for Violence Warning intended victim Possibly calling police

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

26 If you determine a client MAY BE 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

27 Client MAY BE at risk (con t) 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

28 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

29 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

30 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

31 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

32 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

33 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.

34 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

35 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

36 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

37 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

38 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

39 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

40 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

41 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

42 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

43 Suggested Practices to 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

44 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.

45 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

46 Talking to Any Other 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

47 Questions?

48 Thank You!

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