Texas University and College Counseling Directors Association Conference
April 19, 2012

Knowing versus doing ethical practice
 Considerations for our students, supervisees, and
ourselves

Regulatory oversight
 An overview of the process and trends

Ethical challenges on campus
 Current cases and trends

What we know we should do, we don’t do
 Whether students in training or seasoned clinical
psychologists
 The nature of the ethical issue and its affective
implications for the trainee or practitioner
appears to influence to what degree we do that
which we know is consistent with ethical practice
(Bernard, et al., 1986, 1987)

Study by Betan & Stanton, 1999
 95% of students (N=256) were aware of what they
should do (i.e., involve training director or
supervisor in case of colleague’s continued
drinking problem)
 Half would do less than what they believed they
should do

The gap between knowing and doing
what is considered ethical is likely
greater for practitioners in general than
is empirically known
(Rogerson, et al., 2011)

Context may alter not only one’s perspective but
affective experience
ASSIMILATION WITHOUT ACCOMMODATION
Or At Least, Without Adequate and Accurate Accommodation
http://www.learningandteaching.info/learning/assimacc.htm

Over-assimilation without adequate
accommodation may occur when information is
learned but without the depth of understanding
needed to engage in a way that changes
practice
(Alton-Lee, 2006)



Without sufficient cognitive categories in
which particular information may be filed, or
Understanding and appreciation of important
differences in information is not present, then
Cognitive errors will occur and affect our
quality of decision making

Accommodation might
look more like this

Than like this
“There is no graver threat to
the process of discovery
than that dread disease,
‘hardening of the
categories’.”
(attributed to Bob Miller, San Francisco
artist and science educator)
(image retrieved 04/01/2012 from
http://isaac.exploratorium.edu/dbarker/
bobmiller.html
Professional Ethics
Personal Ethics
High
Low
Integrated
High
Professionally informed; guided
Assimilationby
and
accommodation
of personal
personal
compassion
and
and professional values with integration: Readily
affective awareness; highly
considers “big picture,” various alternatives, and
effective
professionally
implications while
weighing
how personal values
may influence best judgment for better or worse
Low
Assimilated
Adopted professional standards,
Under-Accommodation: At risk for
but lackslapses,
compassion;
mayto
professional
due to failure
rigidthe
and
legalistic
seebecome
or appreciate
“big
picture’
Separated
Personal compassion not
Under-Accommodation:
At risk for
restrained by professional
professional
lapses,
although
not
ethics; may
get over
involved
with malicious intent, possible
(runaway compassion)
failure to maintain good boundaries
Marginalized
Low professional and
Failure to assimilate or
personal standards;
risks
accommodate
ethical principles
becoming
consistent
with exploitative
social norms
Adapted from Knapp & VandeCreek, 2009

Decision making is
affected by common
errors of judgment
 Intuitive, automatic
reasoning and decision
making is heavily
influenced by affective
components
 Rational reasoning
requires more cognitive
effort
▪ Natural reliance on cognitive
shortcuts

A heuristic is a problem solving strategy
 This can range from an “educated guess” to “trial
and error”
 “Rules” for various kinds of problem solving
 A heuristic can range from simple to more
complex, but does not provide a definitive
outcome

An algorithm is a specific set of directions
that will result in a specific outcome


Cooking by taste follows a heuristic based on
what the cook believes should go into how a
prepared food tastes and what the outcome
should be
Cooking by following a recipe is the use of an
algorithm that will result in a predefined
outcome assuming the recipe is followed and
conditions are right



Making decisions is part of every day life and
making ethical decisions is part of day-to-day
practice and business in any mental health
setting
Consequences may make the process of
decision making a greater challenge
A decision making strategy can help to
facilitate the process of making a decision
and facilitate a proactive approach to address
the critical issue
Bush, Connell, & Denny, 2006
Identify the problem
Consider the
significance of the
context and setting
3. Identify and use
ethical and legal
resources
4. Consider personal
beliefs and values
1.
2.
Develop possible
solutions to problem
6. Consider potential
consequences of
various solutions
7. Choose & implement a
course of action
8. Assess the outcome
and implement change
as needed
5.
A Licensing Agency Perspective

Rules development may be in response to
 Legislative directive
 Request for consideration of a particular rule
 Number of disciplinary actions that may indicate
need for clarified limits

Regulatory disciplinary process
 Disciplinary action is generally complaint driven
 May be initiated by the Board
Cease & Desist 3%
General Therapy
16%
Administrative 6%
Forensics 6%
Child Custody
9%
School
Psyc
Servcs
3%
Misc 1%
Complaints
CE Completion (55%)
Sexual Misconduct (1%)
Continuing
Education
55%
School Psyc Srvcs (3%)
Child Custody (9%)
Forensics-General (6%)
General Administrative (6%)
General Therapy (16%)
Cease & Desist (3%)
Miscellaneous (1%)
Sexual
Misconduct
1%



Reviewed for “reasonable cause” to believe
that a violation has occurred
Most violations are resolved by an agreed
order without other action being taken
If a respondent licensee wishes, they may
meet with representatives of the Board at an
Informal Settlement Conference
 Both the respondent and complainant may
present their perspectives at this meeting
CE Requirement
Personal Problems
Admin Penalty
Reprimand/
Suspension (Probation)



Forensic


Supervision



Records
Informed Consent

Evaluation Reports




Valid license-School


Legal Action –
Unreported


CE Repeat Offender




Organizational Administrative Roles
 Potential conflict between institutional values and





professional ethical values
Adequate consent forms
Documentation
Security
Vetting of new staff and license status
Supervisory oversight
 Licensed professional staff
 Practicum students and interns

Use of titles by supervisees
 Appropriate representation of self and status to others

Adequacy of consent forms
 Adequate coverage of relevant issues
 Level of comprehensibility

Adequacy of direct face-to-face supervision
 Frequency
 Content
 Documentation
 Timely feedback to supervisee

Breach of confidentiality
 Office environment
▪ Transmission of sound and conversation
▪ Positioning of computer data screens or appointment
books
 Electronic record storage
▪ Policies regarding handling protected information in an
electronic form, e.g., adequate encryption
▪ Report preparation and storage on personal computers
and/or portable memory devices

Breach of professional boundaries
 Assignment of cases
▪ Consideration of not only professional skill but
professional maturity
▪ Case history may raise questions regarding client-therapist match
▪ How was determination of assignment made
 Out of office therapy sessions
▪ Policies regarding if, when, and where such sessions
should take place

Individual must have official status of trainee
in order to be supervised
 Trainee must be enrolled in a training program
and registered in a course that requires the
supervised training, i.e., a practicum course or
internship
 Proposed rule pending approval requires timely
performance feedback to supervisees (465.2)

Stipulates that intimate involvement with
significant others of a current patient/client is
considered detrimental
 465.13 (b)(4)
 465.13 (d)
reference slide
reference slide
Current and Emergent Legal Issues






Emotional-support animals on campus
Mental health and student status
Mental health and “duty to warn”
Personal ethics vs. professional values and
training of mental health professionals
Data management – flash drives, personal
laptops, and ‘cloud’ storage
Texas legal requirements for reporting of
childhood sexual abuse

August 2011, TSBEP received a request from a
university department of psychology and
counseling to clarify “requirements for
psychologists in light of Texas Family Code, the
Attorney General Opinion Letter, and our
professional ethics.”
 The letter expressed concern for clear understanding
legal duty as it applies to “the professional ethics and
duties we owe to our clients” as well as clear and
accurate training of graduate students

In 1995, reporting of abuse or neglect of a child
in its most well known form became a mandated
requirement (Texas Family Code, Subchapter B, Sec.
261.101)

In May 1997, the CSOT requested an opinion
from the Office of the Attorney General
 Do requirements of mandated reporting apply when
“incomplete or dated” information is received from a
client ?

In July 1997, the TSBEP General Counsel filed a brief
with the OAG in response to the OAG requests for
opinions from stakeholders
 The brief concluded: “Nothing in the statute appears to
provide a mental health professional with the discretion to
‘use good judgment’ in determining whether a report of
child abuse is ‘too dated ‘ or too incomplete’ to justify
compliance with Family Code 261.101.
 If a professional has “cause to believe” a child has been
abused, then obligated to comply with the reporting
requirements of the statute


In November 1997, Attorney General Dan
Morales responded to the question re:
“Whether Family Code section 261.101(a)
permits a registered sex-offender-treatment
provider discretion to report information
regarding possible child abuse.”
Responded to whether the “exception” as
described by the CSOT is consistent with
Family Code 261.101

A person who suspects that a child has been
abused or neglected must report that
suspicion immediately to the appropriate
authorities.
 The agency may not permit a licensee “to decide
whether to report a suspicion where the suspicion
is based on dated or incomplete information.
▪ Not knowing child’s name or identity of caregiver is not
an exception
▪ Reporting professional who “acts in good faith….is
immune from civil or criminal liability”

The TSBEP responded that
 It is required to abide by statutory requirements mandating




reporting abuse or neglect of a child
Based on the current OAG opinion, there is no exception to
reporting, it is irrelevant whether or not the child is currently
being abused or if the child is now an adult
Reporting must occur, even if previously reported
Determination of the relevance of the report and further
investigation is the prerogative of the authorities taking the
report
Informed consent “should clearly indicate that if the client
reveals to the psychologist any child abuse, regardless of
whether the client is the perpetrator, the victim, or somehow
simply privy to such abuse, the psychologist by law must report
suspected abuse.”

On December 2011, the agency requested an
additional clarifying opinion in the context of the
concerns expressed by the university psychology
and counseling department letter to TSBEP
 “Whether a mental health professional who is treating
an adult patient must report any abuse or neglect, as
those terms are defined in Chapter 261 of the Texas
Family Code, that the mental health professional has
cause to believe occurred during the adult patient’s
childhood.”
Are HIPAA standards violated by reporting any
such childhood abuse and neglect of an adult
under state law?
 Does duty to report apply if perpetrator is
deceased or whereabouts are unknown?
 To what authority should the report of childhood
abuse or neglect of an adult be directed?
 Does the mental health professional have to
report the abuse or neglect if the abuse or
neglect has previously been reported?


Therapy dogs
 U.S. DOJ (on behalf of student) vs. University of
Nebraska at Kearney (filed Nov 2011)

Mental health and student status
 Nott v. George Washington University (agreement
10/31/2005)
 City University of New York (agreement 08/2006)
Return to slide

Mental health and “duty” to warn
 Virginia Tech shootings (2007)
 Oikos University, Oakland, California shootings
(April, 2012)

Personal ethics vs. civil rights and training of
mental health professionals
 Ward v. Eastern Michigan University (2012)
 Keeton v. Anderson-Wiley, et al. (2011)

Data management
 Report preparation and storage on personal
computers and flash drives
▪ Policies and procedures for handling of digital data
necessary
 “Cloud computing” – off-site data storage by third
party vendors
▪ No regulatory or legal guidance yet
▪ No law suits , “yet”
▪ Deveraux & Gottlieb recommend caution and believe
that cloud-based data storage may pose unnecessary
risk at this time

465.2(f) A supervisor must document in
writing, at least every three months, the
supervision activities and the supervisee's
performance during a practicum, internship,
or period of supervised experience required
for licensure and must provide this
documentation to the supervisee.
return

465.13(b)(4) Licensees do not terminate
psychological services with a client [person]
in order to have a sexual relationship with
that client [person]. Licensees do not
terminate psychological services with a client
in order to have a sexual relationship with
individuals who the licensee knows to be the
parents, guardians, spouses, significant
others, children, or siblings of the patient.
Return to slide

465.13(d) A licensee may not engage in sexual harassment,
sexual impropriety, or a sexual relationship with a current
patient or client; a former patient or client over whom the
licensee has influence due to a therapeutic relationship;
students[;] or trainees; individuals who the licensee knows
to be the parents, guardians, spouses, significant others,
children, or siblings of current patients; or a supervisee
over whom the licensee has administrative or clinical
responsibility. A licensee may not engage in a sexual
relationship with individuals who the licensee knows to be
the parents, guardians, spouses, significant others,
children, or siblings of former patients for at least two
years after termination of services.
Return to slide

Americans with Disabilities Act
 Cannot treat individual differently simply because of a
disability
 Reasonable accommodations must be made if
individual qualifies
 State and local governments must offer services in
“the most integrated setting” that allows an individual
to participate as fully and independently in
community life as possible


Rehabilitation Act (Section 504)
Fair Housing Act

Rehabilitation Act (Section 504)
 Prevents discrimination by organizations and
employers (i.e., any that receive financial
assistance from any Federal department or
agency)
 physical or mental impairment that substantially
limits one or more major life activities
 “Reasonable accommodation” requirement

Fair Housing Act
 Prohibits discrimination based on “a physical or
mental impairment which substantially limits one or
more of such person's major life activities”
 Discrimination includes “refusal to make reasonable
accommodations in rules, policies, practices, or
services, when such accommodations may be
necessary to afford such person equal opportunity to
use and enjoy a dwelling”
Return to slide


When does a student’s mental health and
behavior constitute sufficient risk to warrant
requiring them to leave campus?
What defines which student may constitute a
“direct threat?”
Return to main slide

Notts case
 Student experienced depression following suicide of friend and was




seen at university counseling center where antidepressant meds
were prescribed
Subsequently, he felt worse, began worrying about an adverse drug
reaction, and admitted himself to the university hospital
“Within hours,” he received notice he could not return to his dorm
without clearance from the UCC and his dorm
He soon received another notice that he had violated the schools
code of conduct by “endangering behavior”
Option to appeal to a review board, but if found guilty, faced
suspension or expulsion
▪ Could withdraw and later apply for readmission if he showed proof that he
has “successfully completed treatment, been symptom free for six months,
and could live independently and perform successfully.”
Return to main slide

CUNY case
 Student attempted suicide and was hospitalized
following which she was barred from returning to
her dorm room
 $165,000 settlement and agreement by university
to review and revise related policies
Return to main slide

Generic example (Grasgreen,2011)
 A female international student engages in repetitive
self-cutting
 No support system on campus or nearby
 Refused to leave campus, roommate felt like she was
on suicide watch
 University chose not to refer to SCC to avoid her
circumstances potentially becoming more public, and
sent her home until she received adequate treatment
and was fit to return to campus
Return to main slide
When does a student’s mental health and behavior
constitute sufficient risk to warrant requiring them to
leave campus?
 What defines which student may constitute a “direct
threat?” (ADA, Title II)

 If individual poses a “significant risk to health and safety of
others,” they may be excluded from access
▪ Threat assessment based on “nature, duration, and severity of the risk”
▪ “Probability that the potential injury will actually occur,” and
▪ “Whether reasonable accommodations of policies, practices, and
procedures will mitigate or eliminate the risk”
 March 15, 2011 – “a significant risk to the health or safety of
others that cannot be eliminated by a modification of policies,
practices or procedures, or by the provision of auxiliary aids or
services."
Return to main slide

High profile campus-related violence






Tarasoff (1968)
Virginia Tech (2007)
Northern Illinois University (2008)
University 0f Texas (2010)
Oikos University, Oakland, CA (2012)
Policy implications for UCCs
 Texas – No Tarasoff duty

Involvement with university policy development
Return to main slide

What is the balance between students’
personal values and ethics and expectations
of training programs and supervisors in
training sites?
 Two recent cases highlight the tension between
individual personal values and ethical professional
values
Return to main slide

Evolution of Ward case in Michigan
 Ward began Master’s degree training program in
2006; enrolled in practicum in 2009
 Learned a new client who had previously been
counseled was homosexual; she asked for client to
be reassigned
 She stated she was willing to counsel LGBT clients
on any other issue than their same-sex
relationship
 She was subsequently requested to participate in
and successfully complete a remediation plan

In 2010, both Ward and the plaintiffs sought
summary judgments from the court
 Ward’s motion was denied and the university’s
motion was granted

Ward appealed the 2010 decision
 in January 2012, the U.S. 6th Circuit Court of
Appeals overturned the ruling and remanded the
case back to District court to proceed

Keeton vs. Anderson-Wiley (2011)
 Keeton, who was in a counselor training program, insisted that on basis
of her personal religious beliefs that she had the right to counsel LGBT
clients that being gay is immoral
 She was dismissed from the program on the basis of her failure and
unwillingness to adhere to professional ethical standards of ACA
 In July 2010 in U.S. District Court, she sued two faculty members from
the university education counseling department as well as a university
administrator “alleging that requiring her to complete the remediation
plan violated her First Amendment free speech and free exercise rights”
▪ Also, filed for injunction against her dismissal from university; court
dismissed request for injunction
 11th circuit Court of Appeals (Dec 2011) found for the university in that
the dismissal was not based on her belief but on her unwillingness to
adhere to a standard of ethics and her desire to impose her values on
others
Return to main slide

Risk of loss of data
 By loss during transport and breach of confidentiality
▪ Students-in-training, supervisees, professional staff
 By loss of access
▪ Cloud storage becomes inaccessible
▪ E.g., recent megaupload web site shutdown by U.S. government and Kim
Dotcom arrest
 By loss of breach of confidentiality
▪ Cloud storage privacy controls not set properly for security
▪ Greater potential for security breach
▪ Larger quantities of data may have greater likelihood of breach

In summary,
 Even prudent, ethical administrators and
practitioners can find themselves facing
regulatory proceedings associated with a
complaint or being named as a defendant in a civil
suit
 Utilizing solid ethical decision making strategies
pre- and post-incident will reduce likelihood of
regulatory complaints or litigation
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Strengthening Research, Policy and Practice Links to Improve
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
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






Grasgreen, A. (2011). Danger for whom? Inside Higher Education. Retrieved
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southern district of Georgia. Retrieved o4/06/2012 from
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taman2.html
Texas Office of Attorney General. (1997). Opinion no. DM-458.
Texas Office of Attorney General. (1997). Letter of request RQ-944
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neglect. Retrieved 04/10/2012 from
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