Law & Ethics for Clinicians Working With Children & Families

Law & Ethics for Clinicians Working
With Children & Families
A. Steven Frankel, Ph.D., J.D.
3527 Mt. Diablo Bl. #269
Lafayette, CA 94549
Phone: (925) 283-4800; Fax: (925) 944-888
Email: drpsylex@earthlink.net
www.sfrankelgroup.com
“Experience is a hard teacher because she gives
the test first, the lesson afterward.”
Vernon Law

Introduction
My background.
I hate risk management
seminars.
Preview of handouts/references.
Questions can be posed orally or
in writing (don’t trust me after
4:00 pm).

Duty To Warn
Hypothetical:
1. Blended family
2. After a session with the couple
Wife calls to tell you that she ran
into her ex- had a nice
conversation and reported this
to her new husband, who flew
into a rage and threatened to
kill the ex. NOW WHAT?

Tarasoff: In the Beginnng….
Tarasoff 1:
Facts
Holding

Tarasoff
Tarasoff 2: worser & worser

C. Civil Code § 43.92
(The “Tarasoff statute”)
a) There shall be no monetary liability on the part
of, and no cause of action shall arise against,
any person who is a psychotherapist…in failing
to warn of and protect from a patient’s
threatening and violent behavior or failing to
predict and warn of and protect from a patient’s
violent behavior except where the patient has
communicated to the psychotherapist a serious
threat of physical violence against a reasonably
identifiable victim or victims.

Civil Code § 43.92
(The “Tarasoff statute”)
b) If there is a duty to warn and
protect under the limited
circumstances specified above,
the duty shall be discharged by
the psychotherapist making
reasonable efforts to communicate
the threat to the victim or victims
and to a law enforcement agency.

What’s What s a Tarasoff Report?
1. The threatener (patient);
2. The intended victim(s);
3. The nature of the threat;
4. What makes the threat
“serious.”

Post-Tarasoff
Post Tarasoff Report
Confidentiality-California
Confidentiality California
A. The elements of the report lose
their privileged status and are
admissible in Court.
B. All other assessment &
treatment records remain
confidential/privileged.
[“Menendez II” Menendez v. Superior Court (1992)
3 Cal.4 th 435]

Post-Tarasoff
Post Tarasoff Report
Confidentiality-Federal
Confidentiality Federal
Both the elements of the report and
all other assessment & treatment
records are confidential, privileged
and inadmissible – professionals
are not free to testify absent Court
Order.
[United States v. Chase, No. 01-30200 (9th Cir.08/22/2003)]

Tarasoff
Ewing v. Goldstein:
A problem of MAJOR
proportions!!!!!!

Duty To Warn
Hypothetical:
1. Blended family
2. After a session with the couple
Wife calls to tell you that she ran
into her ex- had a nice
conversation and reported this to
her new husband, who flew into a
rage and threatened to kill the ex.
NOW WHAT?

Third Party Lawsuits
Hypothetical:
1. County intern treats adolescent
and family as well;
2. Adolescent is adopted, has
learning and behavioral
problems – observable early in
life – rx by psychiatrist;
3. Birth mother stays in touch
intermittently

Third Party Lawsuits
4. Parents request IEP at age 17.
5. Evaluator & intern agree that
mom is enmeshed – reject any
Axis I or II disorder in
adolescent & deliver this
formulation to the entire family.
6. Mom is crushed, needs
psychiatric visits & meds.

Third Party Lawsuits
7. Just prior to graduation, she is very
stressed and the issue of her having
her birth mother come to graduation
comes up: “I’m not ready to meet her
yet.”
8. Birth mother tells adoptive parents
that there’s a birth brother.
9. Parents tell intern, but request
confidentiality.

Third Party Lawsuits
10. At last session (services stop
when adolescent is 18), intern tells
her about her birth brother.
Adolescent graduates, but spends
the next 1.5 years screaming at
adoptive parents for deceiving her,
shuttling back & forth between
birth mom & brother vs. adoptive
home, ends up with panic disorder
and hospitalization.

Third Party Lawsuits
SO – WHO IS LIABLE,
AND FOR WHAT?
1. County?
2. Intern?
3. Supervisor?
4. IEP Evaluator?

Third Party Causes of Action
Can a non-patient sue you? Generally, NO, but
1. Diagnostic evaluators (Schwarz v. Regents
of UC (1990)).
2. Negligent infliction of emotional
distress:
a. Closely related;
b. Present when injury occurs and is
aware that it is harmful;
c. Suffers emotional distress more than a
disinterested witness (Thing v. La
Chusa (1989))
3. Reasonably foreseeable harm (Molien v.
Kaiser, (1980))

Third Party Lawsuits
SO – WHO IS LIABLE,
AND FOR WHAT?
1. County?
2. Intern?
3. Supervisor?
4. IEP Evaluator?

“Abuse of Transference”
Creating Dependency
Exploitation
All “sex cases”

Abuse of Transference
Hypothetical:
Female pt. is adult survivor of
sexual abuse with dx of bipolar
disorder, learning disabilities
and chemical dependency.
Clinician cares deeply about all
people including pt., shares a lot
about her own life story
intending to encourage pt.

Abuse of Transference
Toward the end of 3 rd year of
treatment, pt. consults with
attorney, indicating that she has
spent time at clinician’s home,
has paid for tx by doing
secretarial work, which has
included doing personal errands
(e.g. shopping) for clinician, etc.

Abuse of Transference
Pt. also tells attorney that
she has sat on clinician’s
lap for comfort, that
clinician also touched her
inappropriately, telling
her that loving feelings
are OK and that “safe
touch” is OK.

Abuse of Transference
Patient wins large
settlement and
clinician loses license.

“Abuse of Transference”
Creating Dependency
Exploitation
All “sex cases”

Abuse of Transference
Slippery Slopes:
1. This patient is special.
2. I’m uniquely qualified to
treat pt.
3. Others may not approve,
but pt. is growing.

PROFESSIONAL RECORDS
Hypothetical:
1. Custody evaluation in remote
county with loose rules about
formalities – no written order.
2. Mom’s new BF is to be
included in the eval by
agreement of judge, all
attorneys and parties.
3. BF claims years of experience
as a legal researcher, assents
to eval but won’t sign.

Professional Records
4. Eval is less-than-flattering to
BF, who goes ballistic when it’s
admitted into evidence.
5. BF files board complaint – no
relief.
6. BF tries professional societies –
no relief
7. BF finds HIPAA – minor
violation addressable via letter
of apology.
8. BF launches into actions
against evaluator.

Professional Records
9. Evaluator incurs about
$5-10k in legal fees
fighting Order to destroy
BF’s records so he won’t
be left with no evidence
to defend himself if
needed.

Professional Records
Moral of the Story:
Record-keeping begins
with informed consent
(and don’t trust anyone
who won’t “put it in
writing”)

Professional Records
The standard of care: all mental
health professionals are required
to keep contemporaneous
records of all services provided.
NEVER CHANGE A RECORD!
(without documenting the change).

Professional Records
Three Controversies:
1. Process vs. Progress Notes;
2. Privacy: how much to write;
3. Changes to Health
Insurance Portability and
Accountability Act (HIPAA).

Professional Records & HIPAA
You need to know:
i. Don’t panic: it’s only now
becoming clear as to how
many/which state laws will be
preempted by HIPAA.
ii. You need a privacy statement.
iii. You need release forms for
disclosures/amendments.
iv. You need to separate “the
record” from the “psychotherapy
notes.”

The “Clinical Clinical Record” Record
1. Anything you’d find on an
insurance form:
Demographic info (name, age,
address, phone, gender, etc.)
Insurance info
Diagnoses (DSM-IV is OK, but…)
Service dates & CPT Codes
Financial (billed/rec’d. etc.)

The “Clinical Clinical Record” Record
2.Psychoactive medications
3. Psychological testing,
incl. raw data (soooo
sorry!)
You can make efforts to
follow the APA Ethics Code,
but you can’t “win” if push
comes to shove.
California law trumps the APA
Ethics Code.

Clinical Record: 4. Treatment Summary
California Health & Safety Code 123130 holds that a treatment summary
may be prepared in lieu of a patient record, within 10 working days of the
request (if a record is unduly long or a patient is recently discharged, 30
days are allowed" but the patient must be notified in writing). Summaries
must include:
(1) Chief complaint or complaints including pertinent history.
(2) Findings from consultations and referrals to other health care
providers.
(3) Diagnosis, where determined.
(4) Treatment plan and regimen including medications prescribed.
(5) Progress of the treatment.
(6) Prognosis including significant continuing problems or conditions.
(7) Pertinent reports of diagnostic procedures and tests and all discharge
summaries.
(8) Objective findings from the most recent physical examination, such as
blood pressure? weight? and actual values from routine laboratory tests.
Fees:
The health care provider may charge no more than a reasonable fee based
on actual time and cost for the preparation of the summary. The cost shall
be based on a computation of the actual time spent preparing the summary
for availability to the patient or the patient's representative. It is the intent
of the Legislature that summaries of the records be made available at the
lowest possible cost to the patient.

Professional Records
Centers for Medicare & Medicaid (CMS): for
follow-up visits:
A. Date, name, age, length of session;
B . Reason for the encounter and pertinent interval history
(note: all elements above may not have to be repeated
each visit; if the frequency of visits are (sic) less than 1
week the elements must be clearly understood);
C. Pertinent themes discussed;
D. Appropriate risk factors, where applicable;
E. Interventions used, including
1. Pychotherapeutic
2. Medications, diagnostic test(s), consults, family, other;
F. Patient assessment (progress or regression);
G. Changes in treatment plan, diagnosis and medication
where appropriate;
H. Expected treatment outcomes on a periodic basis.

Sample HIPAA-Compliant HIPAA Compliant Record
Patient name:__________________________ Date __________
Length of Session______ CPT: 90806; 90818; 90847; 90853; Other________
(Start___________ Finish __________)
Diagnoses:________________________________________________
Axis IV Psychosocial and Environmental problems addressed:
____Primary support group problems ____Self-care problems
____Social environment problems ____Economic stressors
____Physical health problems ____Current victimization
____School/work problems ___Other psychosocial stressors
____Housing problems
Current GAF__________; Highest GAF this year____________.
Current Meds._____________________________________________.
Risk issues assessed________________________________________.
Consultations:_____________________________________________.
Tx Plan___________________________________________________.
Informed consent issues discussed this session:_________________
_________________________________________________________
(Signature)______________________________________

CLINICAL RECORD
Client:
Clinician:
Prepared by Michaele P. Dunlap, Psy.D. for
Pragmatics of HIPAA Training 2-28-03
Start Stop Tx Mode Summary recorded this session:
(T) Tests/Results, (M) Med .(D) Diagnosis, (S)
Symptoms (F) Functional Status (Tx P) Treatment
plan, (Prog) Progress to Date (E) Prognosis
Per Federal Regulation the above information is documented at each client visit, and may be used or disclosed upon specific written consent of the client or the client=s
authorized representative for treatment, payment or healthcare operations. No other information about this client will be released by this mental health professional/mental
health care entity unless specific, fully informed authorization from the client or an authorized representative is obtained in writing, or as otherwise allowed or required by
law.
Statutes and regulations in this State may be more restrictive than Federal Regulation, further limiting disclosure of the above and other individually identifiable health
information.
AS THE RECEIVING ENTITY, YOU MAY BE SUBJECT TO CIVIL AND FEDERAL CRIMINAL PENALTIES FOR IMPROPER RE-
DISCLOSURE OF THIS INFORMATION.

c. “Psychotherapy Psychotherapy Notes” Notes
Same as “Process Notes” ???
1. Not required to keep them.
2. For the benefit of the therapist.
3. Patient must sign a release each
time they are released, BUT
4. Patient has no statutory right to see
them (yeah, sure!)
5. Insurance industry can’t condition
payment/authorization on inspecting
psychotherapy notes (in litigation –
with Medicare!)

Sample HIPAA-Compliant HIPAA Compliant Psychotherapy Note
Patient Name ____________________________Date__________
Disclosures this session__________________________________
______________________________________________________
Interventions this session _______________________________
______________________________________________________
______________________________________________________
Patient Comments/Behaviors____________________________
_____________________________________________________
_____________________________________________________
Homework____________________________________________
Signature_____________________________________________

Professional Records
Retention of Records:
The “7-year rule” applies to
clinicians as well as agencies, but
EXPOSURE to board actions
runs (at the most) for 10 years
after seeing an adult and, for
minors, when the minor turns 28!!

Lunch Break
We return at 1:00.
Have a nice lunch.

IV. Suicide Risk
Management
The words “patient contracts for
safety” will not help a clinician,
in the event of a “dark cloud.”
The standard of care is to
perform an assessment and to
document that the assessment
was performed.

Sample Suicide Assessment Format
RISK FACTORS FACILITATING INHIBITING
Short-term *
Panic attacks
Psvchic anxiety
Loss of pleasure and
interest
Alcohol abuse
Depressive turmoil
Diminished concentration
Global insomnia
Recent discharge from
psychiatric hospital
(within 3 months )

RISK FACTORS FACILITATING INHIBITING
Long-term:
Therapeutic alliance-ongoing patient
Other relationships
Hopelessness
Psychiatric diagnoses (Axis I and II)
Prior attempts
Specific plan
Living circumstances
Employment status
Epidemiologic data
Availability of lethal means

RISK FACTORS FACILITATING INHIBITING
Long-term:
Suicidal ideation: syntonic or dystonic
Family History
Impulsivity (violence, driving,
money)
Drug abuse
Physical illness
Mental competency
Specific situational factors
Rating System: L = low factor; M = moderate factor; H = high factor; O = non-factor,
* Short-term indicators found to be statistically significant within one year of assessment.
Note: Clinically judge as high, moderate, or low the potential for suicide within 24-48
hours from the assessment of suicide.
Simon, R.I. (1992). Clinical psychiatry and the law, 2nd Ed. Washington, DC: American Psychiatric Press.

Table I I .3 ASSESSMENT OF SUICIDE RISK AND EXAMPLES
OF PSYCHIATRIC INTERVENTION OPTIONS
Suicide risk Psychiatric interventions
High Immediate hospitalization
Moderate Consider hospitalization
Frequent outpatient visits
Reevaluate treatment plan frequently
Remain available to patient
Low Continue with current treatment
plan
Note: Tables 11.2 and 11.3 represent only one method of suicide risk assessment and
intervention. The purpose of these tables is heuristic, encouraging a systematic approach
to risk assessment. The therapist's clinical judgment concerning the patient remains
paramount. Given the fact that suicide risk variables will be assigned different weights
according to the clinical presentation of thc patient, the assessment method presented in
these tables cannot be followed rigidly.
Simon, R.I. (1992). Clinical Psychiatry and the Law, 2nd Ed. Washington, DC:
American Psychiatric Press.

High-Conflict High Conflict Divorce/Custody
Cases: your worst nightmare!
Hypothetical:
1. You see a family with classic
presentation of symptomatic
child, enmeshed mom and
extruded dad.
2. The parents divorce and wind
up in a high conflict custody
fight.

High-Conflict High Conflict Divorce/Custody
3. Mom (who thinks you like her
best):
a. Has her lawyer subpoena all
records; and
b. Asks you to write a letter about
how the best interests of the child
are served by having her be the
primary legal and physical
custodian.

High-Conflict High Conflict Divorce/Custody
3. In a moment of temporary
insanity, you release all
records pursuant to the
subpoena and you write the
letter.
4. You lose your license.

The “rules” (what is legal is not always
prudent, but what is prudent is legal)
Authorization for treatment:
a. Intact families: either parent.
a. b. Separated/divorced
families: Either parent with
legal custody (usually
interpreted to mean that both
signatures are required).

Authorization for treatment of minor
children (under 18):
Minors who have legal standing to
authorize their own care: 12 or
over and
1. Mature enough and either:
Abused
Physical/psychological harm without care
(Fam Fam. . Code §6924) 6924)
2. County Contract Chemical
Dependency Program
(Fam Fam. . Code §6929) 6929)

The “rules rules”
Minors who can authorize their
own treatment.
3. Minor is responsible for payment
if without parental consent.
4. Minor must sign releases (even if
parent signs them too).

The “rules rules”
Confidentiality for minors:
While ethics suggest that children have
expectations for confidentiality, the law
grants parents access to information
unless the clinician believes disclosure
will jeopardize the professional
relationship or expose the child to
physical/emotional abuse.
Civil Code § 56.11(c)(2); Health & Safety Code § 123115(a)(2)

The “rules”
Privilege (disclosing confidential information in the
legal arena) for minors:
While there is case law suggesting that
children may be able to assert privilege
under certain circumstances, this issue is far
from clear in a practical sense especially in
Family Court, so prudence suggests that
clinicians should assert privilege on behalf of
their minor patients/clients and let a judge
decide.
(In In re Daniel C.H. (1990) 220 Cal. App. 3d 814;
In re Kristine W. (2001) 94 Cal. App. 4 th 521)
th 521)

AAMFT Ethics Code:
Principle 3.14 (2001)
New Explicit Duty: Duty:
" To avoid a conflict of
interests, marriage and family therapists
who treat minors or adults involved in
custody or visitation actions may not
also perform forensic evaluations for
custody, residence, or visitation of the
minor. The marriage and family therapist
who treats the minor may provide the court
or mental health professional performing
the evaluation with information about the
minor from the marriage and family
therapist’s therapist s perspective as a treating
marriage and family therapist, so long as
the marriage and family therapist does not
violate confidentiality."

Family Code §§ 6550, et. Seq.
6552. The caregiver's authorization affidavit shall be in substantially
the following form:
Caregiver's Authorization Affidavit
Use of this affidavit is authorized by Part 1.5 (commencing with Section
6550) of Division 11 of the California Family Code.
lnstructions: Completion of items 1-4 and the signing of the affidavit is
sufficient to authorize enrollment of a minor in school and authorize
school-related medical care. Completion of items 5-8 is additionally
required to authorize any other medical care.
Print clearly.
The minor named below lives in my home and I am 18 years of age or older.
1. Name of minor: ________________________________________________.
2. Minor's birth date: _____________________________________________.
3. My name (adult giving authorization): _____________________________.
4. My home address:_______________________________________________
________________________________________________.

5. ( ) I am a grandparent, aunt, uncle, or other qualified relative of
the minor (see back of this form for a definition of "qualified relative").
6. Check one or both (for example, if one parent was advised and the
other cannot be located) :
( ) I have advised the parent(s) or other person(s) having legal custody
of the minor of my intent to authorize medical care, and have received
no objection.
( ) I am unable to contact the parent(s) or other person(s) having legal
custody of the minor at this time, to notify them of my intended authorization.
7. My date of birth: _______________________________
8. My California's driver's license or identification card number:_____________
: Warning: Do not sign this form if any of the statements :
: above are incorrect, or you will be committing a crime :
: punishable by a fine, imprisonment, or both.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
Dated: Signed:_____________________________________

Notices:
1. This declaration does not affect the rights of the minor's parents or legal
guardian regarding the care,custody, and control of the minor, and does not
mean that the care-giver has legal custody of the minor.
2. A person who relies on this affidavit has no obligation to make any further
inquiry or investigation.
3. This affidavit is not valid for more than one year after the date on
which it is executed.
Additional Information:
TO CAREGIVERS:
1. "Qualified relative," for purposes of item 5, means a spouse, parent, stepparent,
brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle,
aunt, niece, nephew, first cousin, or any person denoted by the prefix "grand"
or "great," or the spouse of any of the persons specified in this definition, even
after the marriage has been terminated by death or dissolution.
2. The law may require you, if you are not a relative or a currently licensed
foster parent, to obtain a foster home license in order to care for a minor. If
you have any questions, please contact your local department of social services.
3. If the minor stops living with you, you are required to notify any school,
health care provider, or health care service plan to which you have given
this affidavit.
4. If you do not have the information requested in item 8 (California driver's
license or ID, provide another form of identification such as your- social
security number or Medi-Cal number.

TO HEALTH CARE PROVIDERS AND
HEALTH CARE SERVICE PLANS:
1. No person who acts in good faith reliance
upon a caregiver's authorization
affidavit to provide medical or dental care,
without actual knowledge of facts
contrary to those stated on the affidavit, is
subject to criminal liability or to
civil liability to any person, or is subject to
professional disciplinary action,
for such reliance if the applicable portions of
the form are completed.
2. This affidavit does not confer dependency
for health care coverage purposes.

The “rules”
3Access to records/information by
parents:
a. Either legal custodian has
access unless clinician believes
that disclosure will result in:
1. Jeopardy to professional
relationship;
2. Danger of abuse.
b. Absence of legal custody can’t
be sole reason to deny access.

Regressive Impact of Regulatory
Environment on Practice
Historically, development of
theory and technique supported
the view of families as the
treatment target.
Legal, regulatory and ethics
changes have led to viewing
children as the “identified
patients” rather than families.

A “New New Frontier” Frontier
Hypothetical: you work for a
county dept. of mental
health and are now told that
you will be part of a team
approach to care, where you
will be on “equal” terms
with folks who were patients
in the system (perhaps some
were your patients) and that
the team will intervene to
assist other patients in
recovery.

A “New New Frontier” Frontier
You:
1. Quit your job.
2. Ask for a professional ethics
committee to be convened to
review the plan and advise the
county.
3. Complain to your
professional society.
4. Open a part-time practice on
the side.
5. Become a “life coach”

The “Recovery Model”:
Professional Roles vs.
Organizational Demands
1. Ethics codes vs. employer
requirements.
2. Standard of care.
3. Scope of practice.

Ethics and Organizational Demands
Psychology (APA):
Old Standard (1992):
8.03 Conflicts Between Ethics and Organizational Demands.
If the demands of an organization with which psychologists
are affiliated conflict with this Ethics Code, psychologists
clarify the nature of the conflict, make known their commitment
to the Ethics Code, and to the extent feasible, seek to
resolve the conflict in a way that permits the fullest adherence
to the Ethics Code.
2002 Standard: 1.02 Conflicts Between Ethics and
Organizational Demands. If the demands of an organization
with which psychologists are affiliated or for whom they are
working conflict with this Ethics Code, psychologists clarify
the nature of the conflict, make known their commitment to
the Ethics Code, and to the extent feasible, resolve the
conflict in a way that permits adherence to the Ethics Code.

Social Work (NASW):
3.07 Administration
( d) Social work administrators should take reasonable steps to ensure that the
working environment for which they are responsible is consistent with and
encourages
compliance with the NASW Code of Ethics. Social work administrators should take
steps to eliminate any conditions in their organizations that violate, interfere with,
or discourage compliance with the Code.
3.09 Commitments to Employers
(a) Social workers generally should adhere to commitments made to employers and
employing organizations.
( c ) Social workers should take reasonable steps to ensure that employers are aware
of social workers' ethical obligations as set forth in the NASW Code of Ethics and of
the
implications of those obligations for social work practice.
(d) Social workers should not allow an employing organization's policies,
procedures, regulations, or administrative orders to interfere with their ethical
practice of social work.
Social workers should take reasonable steps to ensure that their employing
organizations’ practices are consistent with the NASW Code of Ethics.

Marriage/Family Therapy (AAMFT):
Subprinciple 6.1 has been expanded to include this
clarification:
"If the mandates of an organization with which a marriage
and family therapist is affiliated, through employment,
contract or otherwise, conflict with the AAMFT Code of
Ethics, marriage and family therapists make known to the
organization their commitment to the AAMFT Code of
Ethics and attempt to resolve the conflict in a way that
allows the fullest adherence to the Code of Ethics. "

See You In Two Years!
(You’re (You re Outta Here!)