Oregon Counseling Association
Valley River Inn – Eugene, OR
2013 Fall Conference
Pre-Conference Workshop
Ethical Issues in 21st Century
Clinical Practice
November 7, 2013
Presenter:
Douglas S. Querin, JD, LPC, CADC-I
Introductions & Overview
Who we are ….
&
Why we’re here
3/22/2016
3/22/2016
2
Caveats
Today’s Comments are Not …
 Legal Advice
 Treatment Advice
 In lieu of Consultation/Supervision
___________________
Our Focus:
How to Manage the Clinical Environment
… from an Ethical Perspective
3/22/2016
3
Socrates had it Right…
Dialogue & Interaction … Help us Learn
Comments & Questions … Are Encouraged!
3/22/2016
3/22/2016
4
A Preliminary Observation
Learning vs. Being Reminded
3/22/2016
5
Another Preliminary Observation
Mental Health Professions & Codes
Similarities vs. Differences
3/22/2016
6
Our Road Map
I.
Principles & Values
II. Ethics vs. Law
III. Informed Consent
IV. Boundaries
V. Reporting Misconduct
3/22/2016
7
Now …. a Word about “Ethics”
Professional Ethics
Basic Characteristics
1. Regulate Conduct
2. Determined by Consensus
3. Change over time
3/22/2016
3/22/2016
9
Our Goal Today ….
Pulling Back the Curtain on Prof’l Ethics
Professional Ethics
Largely Informed by…..
Moral Principles
1. Do No Harm
2. Promote Client Welfare
3. Promote SelfDetermination
4. Honor Faithfulness
(Keeping Promises)
5. Honor Equality
6. Be Truthful
3/22/2016
11
11
Professional Ethics
Also Informed by….

Laws

Insur./Managed Care

Social Trends/Policies

Clinical Standards

Technology

Professionalism
The Result:
Competition between ….
Laws, Ethics Codes, Morals, Clinical,
Professional, and Social Responsibilities
3/22/2016
3/22/2016
13
13
AND … Competition between
Individuals & Institutions
Client
THERAPIST
14
Deciding between Competing
Ethical Responsibilities?
15
15
Let’s Assume ….



An ethical issue has arisen in your clinical practice.
There are potentially serious consequences to your
client depending on how you handle the matter.
You resolve the matter and the outcome is very poor.
After the fact, you are asked:
What Plan did you have, what Factors did you consider,
and what Resources did you rely on, in reaching the
decisions you did in handling this matter?
How would you like to be able to respond?
16
Having an Ethical Decision-Making Model
Just Might be … a Good Idea !!!
“While there is no specific
ethical decision-making model
that is most effective, counselors
are expected to be familiar with
a credible model of [ethical]
decision making …”
Do we have a Plan (i.e., Credible Model)?
ACA Code of Ethics, Statement of Purpose, p. 3, (2005)
3/22/2016
17
How is Professional Conduct Regulated?
1.
Licensing Boards &
Professional Associations
2.
Legal Actions
Organiz’l Rules, Ag’mts, Contracts
3.
3/22/2016
(E.g., EAPs, Employers, Agencies, etc.)
18
18
A Brief Legal Primer
The Law
19
Legal Actions
(1) Criminal: Government actions; Sanctions
include fines or imprisonment
(2) Civil: Actions (non-criminal) by one Party
claiming, gen’ly damages against another
(3) Administrative: Actions by State Regulatory
Agencies (e.g., Licensing Boards)
3/22/2016
20
Civil Law Action: Malpractice
(1) Duty: Professional’s Responsibility to “Clients”
(and others !) to conform to Recognized
Standards of the Professional Community
(2) Deviation: From those Standards
(aka Negligence; Breach of Duty)
(3) Damages: Physical, Emotional, Economic
Injury or Loss
(4) Direct Link: Causal Connection
3/22/2016
21
The Realities of Civil Litigation
(i.e., Malpractice)




Fees & Costs
Proof/Elements of Case
Time & Expense
Justifying Time & Expense
The “Major Case” rule
Such as ……
3/22/2016
22
Licensing Board Complaint
vs. Malpractice Claim
Lic. Board Complaint




One issue: Regs
violated?
Lawyer unnecessary
No fees or costs
Relatively quick
resolution




Malpractice
4 Issues: Duty,
Deviation, Direct
Cause, Damages
Lawyer necessary
Attorney fees
Expensive/lengthy
Now a word or two about …
Informed Consent
In the Beginning….
… there were Doctors
3/22/2016
25
What did Hippocrates tell us?
“… I will prescribe regimens
for the good of my patients
according to my ability
and my judgment …..”
That is…..



Physician knows best
Dr. was “The Decider”
Patriarchal; limited patient Autonomy
3/22/2016
26
Informed Consent Gone Awry
In the Name of Medicine….

Historically, Informed Consent was:
 Physician’s Prerogative
 Not Patient’s Right

Egregious Consequences:
 Tuskegee, Ala. 1932
3/22/2016
27
Patients’ Rights – Have Evolved
Consumers
Lawyers

Canterbury v. Spence, 464 F.2nd 772 (1972), et al.

Doctor’s Prerogative    Patient’s Right
28
Chestnut Lodge
Osheroff vs. Chestnut Lodge (1980)
Informed Consent & Psychotherapy
29
Today
Informed Consent is …..
1. Req’d in All Health Care Professions
2. Client’s Fundamental Right
- To Knowingly Accept or Refuse Tx
3. Professional’s Affirmative Duty
4. An Active, not passive, Duty
3/22/2016
30
Remember….
Informed Consent = Permission to Tx
Permission to Treat
Requires….
(1) Capacity…of this Client
(2) Voluntariness…by Client
(3) Sufficiency of Info to Client
3/22/2016
32
Quality of Informed Consent
(1) CONTENT – What’s Delivered
(2) PROCESS – How Delivered
(3) TIMING – When Delivered
3/22/2016
33
CONTENT
(Clinical Considerations, Laws, Regs, Codes, Risks)
Extent/nature of services
Limits of confidentiality
Risks/rights, alternatives
Uncertain outcome
Right to accept/refuse Tx
Right to participate in Tx planning
Fees, Cancellations, & Collection policies
Taping, Recording, Observation of Sessions
3/22/2016
34
CONTENT
Information to Provide
Termination/Interruption of Service
Both Planned & Unplanned
Custodian of Record
 Inform Client of Supervision
 Parental Consent Issues; Group Therapy Issues
 Coordination of treatment with other Tx Providers
_____________
I/C Rules Apply to Each Person in Client Unit
(i.e., individual, couples, families, groups)
3/22/2016
35
CONTENT
The Challenge
Finding the Right Balance
Too Much Detail: Legalistic & Confusing
 Too Little Detail: Unhelpful & Misleading

3/22/2016
36
Informed Consent : PROCESS
Delivery Options
1. In Writing
2. Verbally
BOTH …are Necessary
3/22/2016
37
Informed Consent - Written
Informed Consent is too often viewed as a
Risk Management Tool …
… a Legal Document
… for Organiz’l Protection
… to get Signed ASAP
Client Understanding …..
…. is often Not the Priority!
3/22/2016
38
Plain Language
Some Recommendations
1. Signatures: By All Parties
2. Copies: To All Parties
3. Document: Receipt … & Client’s Understanding
AND
4. Plain Language, when possible
 See, Flesch Readability Calculator 
See, http://www.cdc.gov/healthliteracy/pdf/SimplyPut.pdf
3/22/2016
39
PROCESS – VERBAL
Informed Consent…Does Not end with
client’s signature on written document
3/22/2016
40
TIMING
When to Inform Client
Clients Change:
 Issues may change
 Clinical needs may change
 Interventions may change
 All the reasons for obtaining Informed
Consent in the first place continue to exist
throughout therapy!!!
Continuing Responsibility
3/22/2016
41
What Ethics Codes tell us about
Informed Consent
Address it at Start of Therapy…
…and Throughout Therapy:
 “… as early as feasible” and as
“circumstances may necessitate” (AAMFT)
 “reassessed throughout” (AMHCA)
 “ongoing part” of counseling (ACA)
3/22/2016
42
Thorough Informed Consent
Benefits
Research suggests:
 >Client
Autonomy
 >Respect
 >Trust
 >Buy-in
 >Adherence to Tx Plan
 >Speed of Recovery
 < Anxiety
3/22/2016
43
Boundaries &
Multiple Relationships
Drawing Lines
Wearing Different
Hats
&
3/22/2016
44
Boundaries
Do we need them? Why?
3/22/2016
45
Boundaries – 3 Types
1. Classic/Traditional Boundaries
2. Boundary “Crossings”
3. Boundary “Violations”
3/22/2016
46
Boundary Types
1. Traditional /Classic

Psychoanalytical perspective
 “Blank Slate”
 Transference Process

Keep Physical & Emotional Distance
Discouraged: Out-of-office Contact, Selfdisclosure, Touch, Expressions of
Familiarity/Warmth; Gifts

3/22/2016
47
Boundary Types
2. Boundary “Crossings”
Modern Trend (“Crossings”):
 Crossing Traditional Boundaries
 Beneficial to Client/Supervisee
 Low risk of harm
 Not Unethical per se
 Look at Context
 Multicultural Influences
 Acceptable w/in Prof’l Community
See e.g., ACA Code, Section F.3., p. 14.
3/22/2016
48
Boundary “Crossings”
Common Examples
 Therapist Self-Disclosure
 Accepting Modest Gift
 Gentle Touch or Hug
 Attending Formal Ceremony
 Rural Communities Realities
 Inadvertent Boundary Crossings
 Grocery store, movie theatre, etc.
 Generally, occur by Choice/Chance
3/22/2016
49
The Internet
Assume your clients will see…..
1. All Online postings with your name
2. All your Facebook pages & postings (and other
social media sites) – unless secure privacy settings
3. All photos and other info posted by your “friends”
that may identify you, unless they too have secure
privacy setting
4. Match.com – Internet dating
Search Yourself Regularly on Internet
http://www.zurinstitute.com/onlinedisclosure.html
Boundary Types
3. Boundary “Violations”



Signif Departure/Prof’l Standards
Potential for Serious Harm:
 Therapeutic Neutrality
 Power Diff.; Exploitation
 Threat to Relationship & Process
“Violations” – Start w/ Boundary Crossings and
Progress; Occur Intentionally … Not Accidentally
3/22/2016
51
Is this a “Crossing” or a “Violation”?
Considerations







Client/Clinical – Presenting issue, mental status, age,
gender, culture, social support, etc.
Setting – In-Pt/Out-Pt, rural, etc.
Therapy – Orientation, stage of therapy, etc.
Therapist – Age, gender, experience, etc.
Prof’l Community - Standards
Purpose – Intent of therapist/client, etc.
Possible Consequences – Harm,
“MULTIPLE RELATIONSHIPS”
Basic Features
Additional, Non-Therapeutic Relationship
 Client  Becomes something more:
 Friend, business associate, lessor/lessee;
romantic partner; debtor/creditor, fellow church,
board member, etc.
 Multiple Boundary Crossings/Violations
 Always some Potential Risk

3/22/2016
53
Multiple Relationships
Variations & Considerations




Concurrent or Consecutive
Promising a Future Relationship
Includes Family Members & Significant Others
Generally Irrelevant:
 Which relationship began first
 Who initiated; Client consent
 Whether occurred by chance/choice
 Professional vs. Non-Professional
 Length of Time; When began (start, middle,
end of therapy)
3/22/2016
54
Multiple Relationships
Three Types
(1) Sexual/Romantic Relationships
(2) Non-Sexual/Non-Romantic
(3) Professional Role Changes
3/22/2016
55
Sexual/Romantic Relationships
Ethics Codes


Current Clients/Supervisees: All Codes Prohibit
Many Codes: Prohibit Relationships w/Client’s
Family Members/Significant Others

Former Clients: Most Codes Prohibit; w/differing
time limits; ACCBO, NAADAC, NASW totally prohibit



Former Romantic Partners: Prohibited
Former Supervisees: Most Codes Silent
No “True Love” Exceptions!!!
3/22/2016
56
Sexual/Romantic Relationships
Sobering Statistics

Sexual violations – 20% - 35% of licensing
board complaints filed against counselors
& therapists (Falvey, 2002, p. 76)

“Across eight national self-report surveys,
…nearly 7% of male & 2% of female
therapists reported engaging in sex with at
least one client.” (Ibid.)
3/22/2016
57
Sexual/Romantic Relationships
Sobering Statistics

Therapist-Client sexual relationships make up:
 18% of Malpractice claims
 41% of Malpractice claim payouts
 20% Licensing Board Complaints

Pope, K. S., & Vasquez, M. J. T. (2001). Ethics in psychotherapy and
counseling: A practical guide. San Francisco, CA: Jossey-Bass.
3/22/2016
58
Sexual/Romantic Dual Relationships
Demographics




Primarily middle-aged Male therapists
Primarily younger Female clients
Single Most Predictive factor?
Risk Management
“Vicarious Liability” – Liability for the
conduct of those over whom you have a
right/duty to exercise control
 At Risk: Supervisors, Agencies, Employers
3/22/2016
59
Multiple Relationships
(2) Non-Sexual/Romantic
Threshold Questions







Therapeutic Benefit? What’s the Purpose?
Potential Impairment of Prof’l Judgment?
Harm to Client/Others? Repairable?
Discussed w/Client? Informed Consent?
Consultation? Documentation?
Unavoidable? (e.g., Rural/Specific Client Pop.)
Accepted Standards w/in Prof’l Community?
3/22/2016
60
Multiple Relationships
Non-Sexual/Romantic
The Ethics Codes

Ethics Codes – all essentially the same
 Potential Harm Test: Avoid M/R with
Clients & Supervisees that create risk of harm:
impair judgment/objectivity, risk exploitation,
result in undue influence
 Potential Benefit Test: Avoid M/R unless
“Potentially Beneficial ” (See, ACA – A.5.d & F.3.e.)
3/22/2016
61
Multiple Relationships
with ….. Former Clients

Factors Considered by Ethics Boards:
 Amount of time passed since therapy
 Nature and duration of therapy
 Client’s personal history & diagnosis
 Likelihood of adverse impact/exploitation
 Discussed/Planned Before End of Therapy
 Informed Consent - Thorough
 Consultation & Documentation in File
3/22/2016
62
Multiple Relationships
(3) Changing Professional Role
Changing Professional Roles
Examples: Changing from Couples, Family, Group 
  Individual Counseling…and vice versa
Practice Tips when Changing Roles
a. Obtain Informed Consent: Advise of Potential
Consequences & How information from First Role may
affect Second Role
b. Therapy  Forensic Role (and vice versa): Risky!
c. Consult when appropriate; Always Document
3/22/2016
63
Multiple Relationships
Risk Management - Tips
Prior to & During M/R
1) Obtain Signed Informed Consent
2) Identify & Discuss issues, risks, benefits
3) Suggest 2nd opinion
4) Clarify client’s right to w/draw
5) Periodically Revisit & Document
- Rationale/Potential Benefit
- Consequences & Risks
3/22/2016
64
The Take-Away
1. Boundaries & Dual Relationships are NOT
inherently unethical
2. They may be Therapeutically Appropriate
… or Potentially Harmful
3. They must to be carefully evaluated,
cautiously used, appropriately documented
Multiple Relationships
Risk Management Caveat
If issues are raised about Propriety of
a Multiple Relationship…
…the Professional will bear
The Laboring Oar
3/22/2016
66
Reporting Prof’l Misconduct
Self-Reporting
ORS 676.150
Duty to Self-Report




All Codes: Prohibit - Practicing while “Impaired”
Must Self-Report (10 days):
 Misdemeanor/Felony – Conviction
 Felony – Arrest
Most Codes require Self-Reporting (often w/in 30 days):
 Civil Lawsuits (practice related)
 Prof’l & Regulatory Sanctions
Failure to Self-Report  Potential Discipline
3/22/2016
68
Reporting:
Other Health Care Professionals
ORS 676.150
Licensed* Health Professionals must Report
Other Licensees, including Licensees of Other Health
Licensing Boards, who engage in:
(a) “Prohibited Conduct” OR
(b) “Unprofessional Conduct”
* Includes regulated pre-licensed professionals
3/22/2016
69
Reporting
Professional Misconduct of Others
“Prohibited Conduct” = Criminal Acts…
(1) … against a patient or client, or
(2) … such acts that create a risk of harm to
a patient or client
3/22/2016
70
Reporting
Professional Misconduct of Others
“Unprofessional Conduct” = Conduct …
unbecoming a licensee, or
 detrimental to the best interests of the public,
 contrary to recognized standards of licensee’s
professional ethics
 endangers the health, safety or welfare of a patient or
client
Failure to Report  Potential Discipline


Reporting
Professional Misconduct of Others



Reporting licensee must have “reasonable
cause to believe”; Includes credible hearsay
Shall make report to appropriate licensing board
Exception: When state/federal law prohibits
disclosure (e.g., Therapist – Client Confid’ty)
 Confidential
Communications are
protected; Exempt from reporting


Report w/in 10 days
Civil Immunity – reports made in “good faith”
3/22/2016
72
Reporting
Professional Misconduct of Others




Some Scenarios
Supervision & Consultation
The client reveals misconduct by another health
care professional
Observations at the dinner party
The inebriated professional
Ethical Issues in 21st Century
Clinical Practice*
Thank you !
____________________
Douglas S. Querin, JD, LPC, CADC-I
dsquerin@comcast.net
3/22/2016
74