IN MENTAL HEALTH ETHICS AND PROFESSIONAL LIABILITY Gerald P. Koocher, Ph. D. , ABPP April 25, 2013
Outline 2 Who gets in trouble and why? Assessing and reducing risk of ethical complaints. Special considerations for military psychologists. Remote delivery of psychological services. Internet exposure and social media. Ethical perils of expert witnessing. Copyright G. P. Koocher (2013)
3 The View from the APA Insurance Trust Understanding your risks and identifying defensive strategies Copyright G. P. Koocher (2013)
Among Policy Holders in 2011 4 Estimated odds of a licensing board complaint 0. 58% (. 0058) up from 0. 2% in 2004 Estimated odds of a civil law suit 0. 35% (. 0035) up from 0. 1% in 2004 Copyright G. P. Koocher (2013)
5 Who gets in trouble and why? Copyright G. P. Koocher (2013)
Most Common Litigation Triggers 6 Improper care/evaluation Credit/billing impropriety Non-sexual dual relationship/boundary violations Suicides Sexual abuses - dual relationship/boundary violations Employment practices Copyright G. P. Koocher (2013)
Significant Claims/ New Trends 7 Boundary Violations Suicide Wrongful Improper death treatment Homicide Dual Relationship Billing – Medicare Investigations Copyright/Trademark Infringement (e. g. , website images and music) Copyright G. P. Koocher (2013)
Psychologist accused of sexual assault on a client http: //www. coloradoconnection. com/news/story. as px? id=844852#. UO 2 f 0 Hdd. B 8 F
COLORADO SPRINGS, COLO. -- A licensed psychologist has been arrested on the charge of Sexual Assault on a Client by a Psychotherapist, according to Colorado Springs Police. Dr. Janice Husted was arrested on the charge after a police investigation. A young man told police that a sexual relationship developed between him and Husted, his psychologist. Police said the man was assigned to receive counseling related to his combat deployments during the summer of 2010. The sexual relationship, according to what the victim told police, started in Aug. 2011 and continued until Oct. or Nov. 2011. The man said the psychologist told him on several occasions that they had to be careful to not appear that they were on dates, police said. Police said the man told the psychologist he did not want to have a secret relationship but she said they couldn't have an open relationship until two years passed. After saying he did not want to wait two years, the psychologist ended the relationship, police said. Sexual Assault on a Client by a Psychotherapist is a Class 4 Felony.
Some things don’t change 10 Want to cut your risk of an “adverse incident” by 95%? Don’t engage in sexual with current or former clients or their relatives. Don’t do anything that someone might mistake for a “forensic assessment, ” without adequate training, informed consent, and thorough data collection. Don’t switch roles in a professional relationship without well documented consent by all parties. Copyright G. P. Koocher (2013)
Barter counseling for bathroom repair (NE Grand Rapids ) Reply to: sale-948491022@craigslist. org Date: 2008 -12 -07, 12: 09 PM EST 11 • “My husband is a capable and effecive counselor, licensed. . . but he is not good at home repairs/construction. I will trade his expertise for your time with him as a counselor if you can help us with tub and tile repair and plumbing. We had a termite problem that we fixed but the place needs a new floor and other stuff. . . if you are struggling with depression or bipolar, he is your man. . . maybe your spouse, child, etc. He is truly an excellent counselor. We have our own non-profit and give to others without charging so our financial situation is limited, but looking to trade! thanks. ” Location: NE Grand Rapids Posting. ID: 948491022 Copyright G. P. Koocher (2013)
Personal Risk Assessment 12 Consider: Patient Risk Characteristics Situation or Contextual Risk Potential Disciplinary Consequences Modified by: Therapist’s “Personal Toolbox of Skills” Copyright G. P. Koocher (2013)
Patient Risk Characteristics 13 Nature of Problem History Diagnosis and Level of Function Expectations Therapeutic readiness Financial Resources Including Insurance Coverage Litigiousness/court involvement Social Support Network Copyright G. P. Koocher (2013)
Situational Risk Factors 14 Nature of relationship Therapeutic alliance Real world consequences Setting Rural versus urban Solo practice versus institutional practice Type of service requested CBT Family therapy Forensic Evaluation Copyright G. P. Koocher (2013)
Therapist’s personal toolbox of skills 15 Psychological makeup/personal issues Personal and professional stress levels Training background/qualifications Experience Resources Consultation Access to other providers Involvement with professional groups Copyright G. P. Koocher (2013)
So what should I do? 16 Know the ethical and legal standards that apply. Pay attention to practice guidelines. Provide comprehensive informed consent. Conduct a conservative evaluation of your competence with clinical populations and activities: Intellectual competence Technical competence Emotional competence Copyright G. P. Koocher (2013)
Case 1. 1 17 Ms. Smith, a 45 year old mother of 2, seeks treatment because of distress (including nightmares) related to a chronically ill mentally disabled child. During session 3 she expresses anxiety about upcoming testimony in a licensing complaint against a former therapist who reportedly made sexually suggestive phone calls to her. During session 4 she mentions that she is concurrently in psychoanalysis (of ten years duration) with and that she once impulsively removed all her clothes in an analytic session. Copyright G. P. Koocher (2013)
Citation 18 Your diagnosis and next steps? Geist, Richard A. (2009) 'Empathy, Connectedness, and the Evolution of Boundaries in Self Psychological Treatment', International Journal of Psychoanalytic Self Psychology, 4: 2, 165 — 180. DOI: 10. 1080/1555102090273 URL: http: //dx. doi. org/10. 1080/1555102090273 Copyright G. P. Koocher (2013)
High Risk Patients Page 19 l Patients who organize their internal object world into hated and adored objects Borderline Personality Disorder Narcissistic Personality Disorder Dissociative Identity Disorder (MPD) PTSD (complex) Patients who were abused as children or are in abusive relationships Copyright G. P. Koocher (2013)
Case 1. 2 20 James Holmes and Lynne Fenton, M. D. A University of Colorado psychiatrist told campus police a month before the Aurora movie theater attack that James Holmes had homicidal thoughts and was a public danger, according to records unsealed April 4, 2013. Lynne Fenton, a psychiatrist at the Denver campus, told police that Holmes had also “threatened and harassed her via email/text messages” in June 2012. He is standing trial for the July 20 shooting rampage that killed 12 and injured 70 during a midnight premiere of the latest Batman movie. Soon after the shooting, university police said they had not had any contact with Holmes, a graduate student doing neuroscience research. But a search warrant affidavit released Thursday revealed that an officer had told investigators that Fenton had contacted her to report “his danger to the public due to homicidal statements he had made. ” Copyright G. P. Koocher (2013)
Higher Risk Patients Page 21 Potentially suicidal patients Conduct frequent risk assessment utilizing current, evidence based methods essential Potentially violent patients Patients involved in unrelated lawsuits Patients with recovered memories of abuse Copyright G. P. Koocher (2013)
Forensic Traps 22 Just trying to help a friend, client, etc. The “vacation time referral” Anticipating litigation (I didn’t see that coming!) To whom do I owe what duties Collaterals Clients for limited purpose Copyright G. P. Koocher (2013)
Standards of care: the “good enough clinician” 23 Mistake or “judgment call” error People cannot avoid mistakes (but a mistake ≠ negligence) Departure from standard of care Many practitioners would not do it Gross negligence Extreme departure from usual professional conduct most practitioners would not do it Copyright G. P. Koocher (2013)
Understanding Professional Liability Insurance 24 Must keep coverage current Tail coverage (trailing claims) Nose coverage (prior acts) ce cti a Pay once, covered “forever” s ar e ry Claims Made Policies . Occurrence Policies s ate ul isk R m cu ac 2011 e ov r fp o 2015 2014 2013 2012 2014 Ri sk 2015 de cli ne sa 2016 fte rp 2017 ra Copyright G. P. Koocher (2013) cti ce ce a se s.
25 Risks for Military Psychologists Copyright G. P. Koocher (2013)
APA PENS Task force Report (2005) www. apa. org/releases/PENSTask. Force. Report. Final. pdf 26 Psychological Ethics in National Security Torture, cruel, inhumane, or degrading treatment of detainees is NEVER ethical. Psychologists have an obligation to report such conduct. Psychologists serving in roles that support interrogation never use health care information to the detainee’s detriment. Psychologists must obey US law and clarify their roles with care. Copyright G. P. Koocher (2013)
Subsequent events 27 Psychologists for an Ethical APA Membership vote 2010 Code revisions Harassment of some individual psychologists Joint task force underway sponsored by Divisions 19 (Military Psychology) and Division 48 (Peace Psychology) Copyright G. P. Koocher (2013)
2010 Ethics Code Revisions 28 1. 02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights. 1. 03, Conflicts Between Ethics and Organizational Demands If the demands of an organization with which psychologists are affiliated or for whom they are working are in conflict with this Ethics Code, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights. Copyright G. P. Koocher (2013)
Senate Armed Services Committee Report of 4/22/09 John Bruce Jessen and James Elmer Mitchell 29 Mitchell and Jessen & Associates allegedly worked for the CIA to create “enhanced interrogation” programs. Their company has allegedly played a role in the use of abusive interrogation techniques, beginning with AZ and KSM in Thailand in 2002. Mitchell and Jessen are not APA members. Jessen is licensed in Idaho and Mitchell is licensed in Texas. http: //www. nytimes. com/2010/11/14/us/14 tt lawsuit. html? _r=0 Copyright G. P. Koocher (2013)
30 Remote Service Delivery Tele-health and Tele-psychology Services Copyright G. P. Koocher (2013)
Service Delivery Trends 31 At least 69% of all professional psychologists have provided services by phone At least 75% have offered services to residents of a state other than where they hold a license. The Office for the Advancement of Telemedicine (HHS) has identified state license limitations as a major barrier to the development of telehealth services. Both nursing and medicine have plans to deal with interstate practice issues on a national basis. The China American Psychoanalytic Association (CAPA) has organized training programs involving seminars, supervision, and psychoanalysis via Skype. Copyright G. P. Koocher (2013)
Psychology’s Inter-jurisdictional Practice Has Lagged Behind 32 ASPPB Certificate of Professional Qualification Inter-jurisdictional Practice Certificate APA Revised model Licensing law Funding for the joint task force on telehealth practice (APA, ASPPB, and APAIT) has been funded for a third year. See Guidelines for Copyright G. P. Koocher (2013)
Ethical Considerations on Remotely Delivered Services 33 APA Ethics Committee Opinion: The APA has not chosen to address teletherapy directly in its ethics code and has created no rules prohibiting such services. The APA Ethics Committee has consistently stated a willingness to address complaints regarding such services on a case-by-case basis, while directing clinicians to apply the same standards used in ‘‘emerging areas in which generally recognized standards for preparatory training do not yet exist, ’’ by taking ‘‘reasonable steps to ensure the competence of their work and to protect patients, clients, students, research participants, and others from harm’’ (American Psychological Association, 2010, 2. 01 e). http: //www. apapracticecentral. org/goodpractice/secure/telehealth. pdf Copyright G. P. Koocher (2013)
Online Ethical and Risk Management Challenges 34 Legal & Jurisdictional Ethical & Risk Management Efficacy Cost/benefit remote vs. in-person Informed Consent Safety Concerns Emergencies Resources Confidentiality Service Reimbursement Copyright G. P. Koocher (2013)
Primary Ethical Issues in Remotely Delivered Services 35 The three C’s: Consent Competence Confidentiality Copyright G. P. Koocher (2013)
Ethical Principles 36 2. 01 Boundaries of Competence (a) psychologists provide services only within the boundaries of their competence (c) Psychologists planning to provide services…involving techniques and technologies new to them undertake relevant education, training, supervised experience, consultation or study. (e) In those emerging areas in which generally recognized standards for preparatory training do not yet exist, psychologists nevertheless take reasonable steps to ensure the competence of their work and to protect clients/patients, students, supervisees, research participants, organizational clients, and others from harm. Copyright G. P. Koocher (2013)
37 Ethical Principles 3. 10 (a) Informed Consent When psychologists conduct research or provide assessment, therapy, counseling, or consulting services in person or via electronic transmission or other forms of communication, they obtain the informed consent of the individual or individuals using language that is reasonably understandable to that person or persons except when conducting such activities without consent is mandated by law or governmental regulation or as otherwise provided in this Ethics Code. Copyright G. P. Koocher (2013)
Ethical Principles 38 Section 4: Privacy & Confidentiality 4. 01 Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium… 4. 02 Psychologists discuss with persons…(1) the relevant limitations to confidentiality Copyright G. P. Koocher (2013)
Legal & Jurisdictional Issues 39 Federal Government Policy: Health Licensing Board Report to Congress, HRSA, HHS, 2011 (HSRA) Federal government has recognized the importance of use of electronic technology and provision of telehealth services. Federal Agencies Efforts to promote telehealth Fed benefits for remote services Medicaid, Medicare Interstate practice is essential for full benefits Best way to accomplish this is by voluntary compact between state licensing boards Grants for medical and nursing boards Copyright G. P. Koocher (2013)
Legal & Jurisdictional Issues 40 Federal Government Policy: Health Licensing Board Report to Congress, HRSA, HHS, 2011 (HSRA) “If collaboration between states is unable to develop effective licensure polices to reduce barriers to electronic practice across state lines within the next 18 months, then Congress should intervene to ensure that Medicare and Medicaid beneficiaries are not denied the benefits of e-care. ” Copyright G. P. Koocher (2013)
Legal & Jurisdictional Issues 41 Federal Government Policy: Health Licensing Board Report to Congress, HRSA, HHS, 2011 (HSRA) “In the absence of specific agreements…states may not discipline healthcare professionals not licensed in their state if patient harm occurs as the result of the provision of health care services by an out of state practitioner. ” (HSRA) Copyright G. P. Koocher (2013)
Case 1. 3 42 A California migraine sufferer was referred by her California physician to an Illinois headache specialist. The California patient traveled to see the Illinois physician and his associate at a headache clinic in Illinois. The patient's headaches subsided and she went back to California armed with a 30 -day prescription for various medications. After her return to California she had numerous telephone conferences with the headache specialist (for which she was billed a small fee each time). When her medication ran out, her Illinois doctors arranged to have additional medication mailed to her and on other occasions called prescriptions directly to California pharmacies near the patient's home. Unfortunately, the medications prescribed by the Illinois doctors rendered the patient so confused and disoriented that she became dysfunctional. After hospitalization at a California detoxification facility she filed an action for medical malpractice. http: //law. justia. com/cases/california/caapp 4 th/49/1056. html Copyright G. P. Koocher (2013)
Federal Courts: Minimum Contacts Rule Prince vs. Urban 43 “In short, we should decline to adopt a rule to the effect that when out-of-state doctors elect to practice medicine in California by telephone and mail, they will be immune from suit here. ” Prince v. Urban (1996) 49 Cal. App. 4 th 1056 [57 Cal. Rptr. 2 d 181] Copyright G. P. Koocher (2013)
Tentative Conclusions 44 Unless a psychologist actively promotes services in an interstate manner, forum state licensing boards will be unable to gain jurisdiction. What level of marketing is required to give a forum state jurisdiction is not yet clear. Websites are unlikely to be seen as promotional. Psychologists who actively market themselves on an interstate basis are taking risk. Extradition is very unlikely. Copyright G. P. Koocher (2013)
Tentative Conclusions 45 Psychologists who actively market non-therapeutic services such as coaching with appropriate disclaimers, appropriate case selection, and appropriate referrals when issues require therapy will also be safer, providing that their language describes what they actually do. Psychologists who provide services across state lines will be subject to review by their own state licensing boards. Copyright G. P. Koocher (2013)
46 What not to do…. Copyright G. P. Koocher (2013)
Just a few sample options for data collection Criminal. Searches Detectivemagic Facebook Familywatchdog Fundrace Google Guidestar Intelius Netronline NSOPR. gov Peoplelookup Pipl Searchsystems. net Spock Spokeo Vitalrec. com Whitepages Whowhere Whois Zabasearch Zoominfo 47 Copyright G. P. Koocher (2013)
What about searching? 48 Your clients will search for information about you. What (if anything) does our ethics code have to say about using electronic media and search engines to check on clients? Copyright G. P. Koocher (2013)
Case 1. 4 49 Help, I’ve been Yelped Sr. Frank Lee Stunned, a psychologist with more than 20 years of experience working in community agencies, and now private practice, thought he’d dealt with almost everything. He’s run a successful small business despite difficulties with third party payers over they years. A client alerted Dr. Stunned that he’d seen a negative comment about him while canning Yelp. com for restaurant reviews. Copyright G. P. Koocher (2013)
I’ve been Yelped 50 The review posted by “Still in the Dumps, ” reported an increase in her depression and anxiety symptoms after months of working with Dr. Stunned, who she described as “insensitive, incompetent, and abusive. ” She noted that she’d always felt uncomfortable about the way he seemed focused on her breasts and wanted to warn other women about him. Dr. Stunned suspects that “Still in the Dumps” is a borderline patient who he had to terminate because of outrageous demands for more contact and noncompliance with treatment. After the difficult termination she’d muttered about getting even. Copyright G. P. Koocher (2013)
I’ve been Yelped 51 Dr. Stunned googled himself and the first search item returned is the Yelp review. He’s anxious, dismayed, and furious. He wants to sue Yelp and the client. Complaints and threats to Yelp won’t help. Attempting to seek a libel judgment may make things worse. Copyright G. P. Koocher (2013)
What can you do? 52 Monitor your web presence Use an optimized professional web site and similar publicity to suppress adverse search returns Hire an attorney to raise defamation claims with the website Consider contractual prevention strategies Consider the services or a reputation protection company (e. g. , Reputationdefender. com and Medical Justice. com) Solicit positive reviews from colleagues Try to ignore them and hope they won influence consumers. Copyright G. P. Koocher (2013)
I’ve been Yelped 53 Response strategies Respond on the site without breaching confidentiality. Remind readers that there are two sides to every story and that you owe all clients a duty of confidentiality Don’t mention any specifics or identifying information about the patient. Develop an active positive branding program Collect consumer satisfaction data. Don’t make promises you can’t keep. Remember that the Internet is forever Copyright G. P. Koocher (2013)
Professional Web Sites: When you control the message 54 Access to Information Marketing your practice/products Directions to your office Downloads Access to Documentation Efficient communication Effective promotion of psychologist’s skills, experience, and competencies/specialties. Copyright G. P. Koocher (2013)
But beware… 55 Site security Boundary issues Appropriate marketing Blogging challenges File transfer and e-mail confidentiality Copyright G. P. Koocher (2013)
56 Facebook, Linked. In, Twitter, Google Voice, What’s Next? Security Issues Retention of Files Friends of Friends boundary issues Fan? Harassment Stalking PHI Failure to terminate Copyright G. P. Koocher (2013)
Do you Need a Friending Policy 57 Sample per APAIT: “I do not accept friend or contact requests from current or former clients on any social networking site (Facebook, Linked. In, etc. ). I believe that adding clients as friends or contacts on these sites can compromise your confidentiality and our respective privacy. It may also blur the boundaries of our therapeutic relationship. If you have questions about this, please bring them up when we meet and we can talk more about it. ” Copyright G. P. Koocher (2013)
APAIT Suggestion on “Following” Policy 58 “I publish a blog on my website and I post psychology news on Twitter. I have no expectation that you as a client will want to follow my blog or Twitter stream. However, if you use an easily recognizable name on Twitter and I happen to notice that you’ve followed me there, we may briefly discuss it and its potential impact on our working relationship. My primary concern is your privacy. ” Copyright G. P. Koocher (2013)
More on Following 59 “Note that I will not follow you back. I only follow other health professionals on Twitter and I do not follow current or former clients on blogs or Twitter. My reasoning is that I believe casual viewing of clients’ online content outside of therapy hour can create confusion in regard to whether it’s being done as a part of your treatment or to satisfy my personal curiosity” Copyright G. P. Koocher (2013)
60 Expert Witness Activity Are you ready to consult as an expert? Copyright G. P. Koocher (2013)
The culture of litigation: Lawyers’ view 61 Attorneys function as advocates for their clients. Goal: achieving a best possible outcome. The attorney’s income may link directly to the outcome of the case. Example: contingent fee arrangements. Two rules for success in litigation: 1) Don’t disclose everything you know unless legally required to do so. Copyright G. P. Koocher (2013)
Can they do that? 62 The principle of advocacy allows lawyers to shop for experts. Discovery rules vary by jurisdiction and context. Implicit ethical conflict for psychologists: No attorney will hire an expert whose views do not advance their client’s cause. Copyright G. P. Koocher (2013)
The Forensic Psychologist’s View 63 We serve as advisors to the court on scientific principles, research data, professional standards. We should take an integrity-laden stance. You can buy my professional time, but you cannot purchase my expert opinions. I should expect any opposing counsel to have my discovered work reviewed by his/her own experts. Copyright G. P. Koocher (2013)
Serving as a disclosed expert 64 Everything you have to say will be on the record and open to scrutiny. You will be crossexamined. Those who disagree with you will seek to discredit you with multiple strategies, hoping you’ll screw up. Copyright G. P. Koocher (2013)
The Seduction Paradigm 65 Only the psychologist’s own integrity stands in the way. Risk of public embarrassment during cross examination does exist. Tendencies to pre-trial settlements and protections associated with expert testimony given in court tend to minimize such hazards and embolden some entrepreneurial experts. After all, any expert is entitled to his/her own opinion. Copyright G. P. Koocher (2013)
Temptations 66 How can I provide valid expertise and Risk continuity of employment? Avoid becoming a “partisan expert? ” Copyright G. P. Koocher (2013)
Invisible psychologist/stealth expert 67 The consultant who will never testify and will remain invisible to legal discovery. Roles: Review case materials Consult to counsel on strategies for additional data requests, cross examination, jury selection, etc. The slope becomes more slippery for some who compromise principle while invisible. Copyright G. P. Koocher (2013)
The Key Ethical Challenges 68 Is it ethically permissible to help discredit the work of a colleague, raise reasonable doubt, or shift the preponderance of evidence while remaining invisible? Yes, if one can retain professional integrity and scientific rigor. The social value of presenting valid psychological data in the justice system depends on respecting the rules of that system. Copyright G. P. Koocher (2013)
The Key Ethical Challenges 69 Avoid the trap of confirmatory bias Looking only for the evidence that supports “our side. ” Providing the “whole truth, ” to the extent we know it. Copyright G. P. Koocher (2013) “Land!”
Costs of invisibility 70 The invisible psychologist may lose control over how counsel uses (or misuses) the expert advice you provide. Your invisibility may not last forever. Copyright G. P. Koocher (2013)
What about my colleagues’ feelings? 71 If you plan to step into the forensic arena, you must prepare to defend your expert qualifications and opinions with evidentiary rigor… …or face the consequences. Copyright G. P. Koocher (2013)
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