Contemporary Ethical
and Legal Challenges
in Mental Health
University of South Alabama
Mobile, Alabama
March 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, LMFT
March 11, 2016
University of Holy Cross
New Orleans, Louisiana
Helping clients….
and protecting yourself
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?"
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
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 Involved
in 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.
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
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 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
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
Difference when Client
may be At Risk for Violence
• Warning intended victim
• Possibly calling police
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
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
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
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
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 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
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 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
Questions?
Thank You!