New Jersey LPC Ethical/Legal Issues in Clinical Supervision


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This is part 5 of 5 in a 30 hour lecture series on Clinical Supervision for Mental Health Professionals. This was made for the Approved Clinical Supervisor Certificate through the NBCC. This interactive workshop focuses on the major elements of legal and ethical issues surrounding Clinical Supervisors in behavioral health settings. In this workshop, participants will learn about the different areas of legal and ethical concern for today’s Clinical Supervisors. Legal areas include LPC licensure regulations and statutes, scope of clinical and supervisory practice, malpractice, duty to warn, direct and vicarious liability, informed consent, confidentiality, and the ADA. Ethical areas covered include workplace harassment, dual relationships, and clinical supervision ethical standards. Teaching methods include lecture, interactive exercises and group participation/discussion.

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New Jersey LPC Ethical/Legal Issues in Clinical Supervision

  1. 1. Copyright © 2016, Advanced Counselor Training Do not reproduce any workshop materials without express written consent. Ethical and Legal Considerations in Clinical Supervision Glenn Duncan LPC, LCADC, CCS, ACS
  2. 2. Why have legal and ethical standards? One of the main purposes of the courts is to determine innocence or guilt. One of the main purposes of Federal and State laws and statutes, licensure regulations, professional standards, and sound personal judgment is to keep you out of court.
  3. 3. Are YOU Qualified!? What does it take to supervise a given license in the state of NJ? Professionals Seeking – Licensed Clinical Social Worker (LCSW)  Beginning on July 7, 2004, clinical supervision shall be rendered by a LCSW with a minimum of three years of licensure (1,500 hours counts as one year) as a LCSW and who has completed at least 20 continuing education credits of post-graduate course-work related to supervision. Any LSW who has entered into a supervisory relationship with a supervisor pursuant to (a)2 above may continue the supervisory relationship until July 7, 2007.  A person with an LSW AND LCADC is NOT QUALIFIED TO SUPERVISE A CADC or CADC Intern according to the Social Work Licensing Board.
  4. 4. Are YOU Qualified!? People seeking - Licensed Professional Counselor (LPC)  “Qualified Supervisor” an individual who holds a clinical license to provide mental health counseling services for a minimum of two years (obtaining at least 3,000 hours work experience subsequent to holding the license in a minimum of 2 years but no more than 6 years) in the state where the services are being provided, and who has: 1. A clinical supervisor’s certificate from the National Board for Certified Counselors Center for Credentialing and Education or its successor, or the American Association of Marriage and Family Therapy or its successor. 2. On or after October 5, 2011 shall hold an approved clinical supervisor credential from the Center for Credentialing and Education of the NBCC or an equivalent clinical supervisor credential recognized by individual’s respective healthcare licensing board. 3. Completed a minimum of three graduate credits in clinical supervision from a regionally accredited institution of higher education.
  5. 5. Are YOU Qualified!? People seeking - Licensed Marriage and Family Therapist (LMFT)  “Qualified Supervisor” means an individual who has no less than 5 full-time years of professional marriage and family therapy practice experience or the equivalent and has either: 1. A NJ license to practice as a marriage and family therapist; or 2. Obtained from an accredited institution a minimum of: i. A master’s degree in marriage and family therapy; ii. A master’s degree in social work; iii. A graduate degree in a related field and has demonstrated to the Board that he/she has completed course work content and training substantially equivalent to a master’s degree in marriage and family therapy; or iv. A graduate degree in a related field which does not provide training and course work substantially equivalent in content to a master’s in marriage and family therapy , and is either a post graduate degree recognized by the Board , or a program of training and course work at an institute or training program accredited by the Commission on Accreditation for Marriage and Family Therapy Education.
  6. 6. Are YOU Qualified!? People seeking - Licensed Clinical Alcohol and Drug Counselor (LCADC) or Certified Alcohol and Drug Counselor (CADC) 1. A New Jersey licensed clinical alcohol and drug counselor; 2. A New Jersey licensed physician certified by the American Society of Addiction Medicine (ASAM) or a psychiatrist with added qualifications in chemical dependency from the American Psychiatric Association; and 3. A New Jersey certified advanced practice nurse, licensed psychologist, licensed clinical social worker, licensed marriage and family therapist or licensed professional counselor all of whom shall be certified as clinical supervisors by ICRC member boards.
  7. 7. Major Legal Issues For Clinical Supervisors Malpractice  Harm to another individual due to negligence consisting of the breach of a professional duty or standard of care.  When you take the role of supervisor, you are expected to know and follow the law, as well as the profession’s ethical standards.
  8. 8. Increase in Lawsuits?  A general decline in the respect afforded helping professionals by clients and society at large.  Increased awareness of consumer rights in general.  Highly publicized malpractice suits where settlements were enormous, leading to the conclusion that a lawsuit may be a means to obtain easy money.
  9. 9. What is needed to prove Malpractice?  A professional relationship with the therapist (or supervisor) must have been established.  The therapist’s (or supervisor’s) conduct must have been improper or negligent and have fallen below the acceptable standard of care.  The client (or supervisee) must have suffered harm or injury, which must be demonstrated.  A causal relationship must be established between the injury and the negligence or improper conduct.
  10. 10. How to Reduce Legal Liability  One of the most important things a supervisor can do to reduce the risk of a charge of negligence is to screen prospective employees carefully.  In addition to information on academic credentials and work experience, it is important to know if their present skill level is consistent with the expectations of the supervisor.  Supervisors scrupulously should follow the regulations of their respective accrediting board (e.g., Psychologists, Social Workers, CADCs) regarding supervision.  They should check with their malpractice carrier to be certain that their supervisory functions are covered. It also may be prudent to require the supervisee to carry his or her own professional liability insurance.
  11. 11. How to Reduce Legal Liability  Supervisors should take whatever actions are necessary to ensure the quality of services delivered to the patient.  The extent of the monitoring will depend on several factors, including the skill level of the supervisee, the type of services being performed, and the direct knowledge of the supervisor of the skill of the supervisee.  As noted above, the minimal supervisory requirements for clinicians-in- training are more specific than those for other unlicensed employees.  Supervisors would be liable if they assigned a patient to a supervisee who did not have the skill level to provide adequate services.  Finally, supervisors must document all supervisory sessions in a manner consistent with established record-keeping rules and requirements.
  12. 12. The Duty to Warn and Protect  Case Name: Vitaly TARASOFF v. REGENTS OF UNIV OF CA., et. al. Date, Location, Cite: 1976 CA. 131 Cal Rptr 14, 551 p2d 334.  CA Supreme Court: Prosenjit Poddar told student health he wanted to kill Tatiana Tarasoff. Psychologist told supervising psychiatrist, who told campus police, who checked & let Poddar go.  Poddar killed Tatiana. Parents sued for "failure to warn"- Trial Court said no duty existed, but CA Supreme Court cited Simenson v Swensen, ordered trial; heard twice, settled out:  “Tarasoff #1” -"Privilege ends where public peril begins." “Tarasoff #2” - Therapist has an obligation to use reasonable care to protect potential victim.  SUPER LAND MARK - created whole new cause for action, but based on Simenson v Swensen because settled out of court.
  13. 13. The Duty to Warn and Protect  1975 “Tarasoff #1” -"Privilege ends where public peril begins." 1976 “Tarasoff #2” - "When a therapist determines, or pursuant to the standards of his profession should determine, that his [client] presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances."  SUPER LAND MARK - created whole new cause for action, but based on Simenson v Swensen because settled out of court.
  14. 14. New Jersey Duty to Warn & Protect Law  N.J. Stat. 2A:62A-16 Medical or counseling practitioners' immunity from civil liability  a. Any person who is licensed in the State of New Jersey to practice psychology, psychiatry, medicine, nursing, clinical social work or marriage counseling, whether or not compensation is received or expected, is immune from any civil liability for a patient's violent act against another person or against himself unless the practitioner has incurred a duty to warn and protect the potential victim as set forth in subsection b. of this section and fails to discharge that duty as set forth in subsection c. of this section.  b. A duty to warn and protect is incurred when the following conditions exist:  (1) The patient has communicated to that practitioner a threat of imminent, serious physical violence against a readily identifiable individual or against himself and the circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out the threat; or
  15. 15. New Jersey Duty to Warn & Protect Law  N.J. Stat. 2A:62A-16 Medical or counseling practitioners' immunity from civil liability (continued)  (2) The circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out an act of imminent, serious physical violence against a readily identifiable individual or against himself.  c. A licensed practitioner of psychology, psychiatry, medicine, nursing, clinical social work or marriage counseling shall discharge the duty to warn and protect as set forth in subsection b. of this section by doing any one or more of the following:  (1) Arranging for the patient to be admitted voluntarily to a psychiatric unit of a general hospital, a short-term care facility, a special psychiatric hospital or a psychiatric facility, under the provisions of P.L.1987, c.116  (C.30:4-27.1 et seq.);
  16. 16. New Jersey Duty to Warn & Protect Law  N.J. Stat. 2A:62A-16 Medical or counseling practitioners' immunity from civil liability (continued)  (2) Initiating procedures for involuntary commitment of the patient to a short-term care facility, a special psychiatric hospital or a psychiatric facility, under the provisions of P.L.1987, c.116 (C.30:4-27.1 et seq.);  (3) Advising a local law enforcement authority of the patient's threat and the identity of the intended victim;  (4) Warning the intended victim of the threat, or, in the case of an intended victim who is under the age of 18, warning the parent or guardian of the intended victim; or  (5) If the patient is under the age of 18 and threatens to commit suicide or bodily injury upon himself, warning the parent or guardian of the patient.  d. A practitioner who is licensed in the State of New Jersey to practice psychology, psychiatry, medicine, nursing, clinical social work or marriage counseling who, in complying with subsection c. of this section, discloses a privileged communication, is immune from civil liability in regard to that disclosure.
  17. 17. New Jersey Duty to Warn & Protect Law  N.J. Stat. 2A:62A-17 Court order required for certain disclosures  When a duty to warn and protect arises from the receipt of a privileged communication from a patient in a drug or alcohol abuse program governed by federal law, a licensed practitioner of psychology, psychiatry, medicine, nursing, clinical social work or marriage counseling may be required to obtain a court order authorizing disclosure prior to disclosure of information about the patient including the patient's threat of violence, in accordance with 42 U.S.C. 290dd-3 and 42 U.S.C. 290ee-3 and regulations promulgated thereunder. *  See also: McIntosh v. Milano, 168 NJS 466 (Law Div. 1979)  * The regulations are the federal Confidentiality of Alcohol and Drug Abuse Patient Records; Final Rule, 42 CFR Part 2
  18. 18. 42-CFR-Part 2 – Exceptions to Confidentiality  § 2.22 Notice to patients of Federal confidentiality requirements.  The confidentiality of alcohol and drug abuse patient records maintained by this program is protected by Federal law and regulations. Generally, the program may not say to a person outside the program that a patient attends the program, or disclose any information identifying a patient as an alcohol or drug abuser Unless:  (1) The patient consents in writing: (2) The disclosure is allowed by a court order; or (3) The disclosure is made to medical personnel in a medical emergency or to qualified personnel for research, audit, or program evaluation.  Violation of the Federal law and regulations by a program is a crime. Suspected violations may be reported to appropriate authorities in accordance with Federal regulations.  Violation of the Federal law and regulations by a program is a crime. Suspected violations may be reported to appropriate authorities in accordance with Federal regulations. Federal law and regulations do not protect any information about a crime committed by a patient either at the program or against any person who works for the program or about any threat to commit such a crime. Federal laws and regulations do not protect any information about suspected child abuse or neglect from being reported under State law to appropriate State or local authorities.
  19. 19. 42-CFR-Part 2 – Exceptions to Confidentiality  § 2.22 Notice to patients of Federal confidentiality requirements.  Federal law and regulations do not protect any information about a crime committed by a patient either at the program or against any person who works for the program or about any threat to commit such a crime. Federal laws and regulations do not protect any information about suspected child abuse or neglect from being reported under State law to appropriate State or local authorities.  § 2.14 Minor patients (d)(2) The applicant's situation poses a substantial threat to the life or physical well being of the applicant or any other individual which may be reduced by communicating relevant facts to the minor's parent, guardian, or other person authorized under State law to act in the minor's behalf.
  20. 20. 42-CFR-Part 2 – Exceptions to Confidentiality  § 2.63 Confidential communications.  (a) A court order under these regulations may authorize disclosure of confidential communications made by a patient to a program in the course of diagnosis, treatment, or referral for treatment only if:  (1) The disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties;  (2) The disclosure is necessary in connection with investigation or prosecution of an extremely serious crime, such as one which directly threatens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse and neglect; or  (3) The disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications.
  21. 21. Imminent Danger Defined Imminent danger is a concept used to describe problems that can lead to dire consequences for the client (and others). Imminent danger is defined as the following 3 components: 1. A strong probability that certain behaviors (such as continued alcohol or drug use or continued self harm) will occur. 2. The potential for such behaviors to present a significant risk of serious adverse consequences to the individual and/or others. 3. The likelihood that such harmful events will occur in the near future.
  22. 22. NBCC Code of Ethics: Duty to Warn  When a client’s condition indicates that there is a clear and imminent danger to the client or others, the certified counselor must take reasonable action to inform potential victims and/or inform responsible authorities.  Consultation with other professionals must be used when possible.  The assumption of responsibility for the client’s behavior must be taken only after careful deliberation, and the client must be involved in the resumption of responsibility as quickly as possible.
  23. 23. The Duty to Warn  Was their supervisor issues in this case?  What relevance did supervision have on the case?  It is imperative for supervisors to inform supervisees of conditions under which it would be appropriate to implement the duty to inform an intended victim.  The clinical supervisor was implicated in the finding of a negligent failure to warn the prospective victim. If the supervisor had examined Poddar and found him to not be dangerous, the grounds for liability based on foreseeability would have been less clear.  The expectation is that sound clinical judgment and reasonable or due care are taken regarding the determination of dangerousness.
  24. 24. Duty to Warn Vignette Paul is referred to your organization for domestic violence. The domestic violence was towards a girlfriend who was attempting to break up with him. Paul and the girlfriend have since broken up, and she has a restraining order against him (which he states he abides by). Both clinicians with experience with this type of client are full and cannot accept any addtional clients. As the clinical director you decide to give this case to an intern, who is supervised by one of your master’s level clinicians. The intern is assigned the case and not much happens for a few months that you are aware of. One week in supervision, your clinician comes to you to inform you that a situation has happened with this client. You come to find out that Paul has been increasingly making threatening statements towards other drivers on the road when he travels to work. He describes how he gets “infuriated” by other drivers who cut him off, or don’t move out of the fast lane when he is behind them. At first “altercations” were just gestures back and forth between he and the other driver at the time. However, in the past week he followed another driver all the way to that person’s job, and proceeded to fight him in the parking lot.
  25. 25. Duty to Warn Vignette When asked if anybody was hurt, Paul replied that the other person was “a bit bloody” when Paul left him on the parking lot grounds. Paul confided to the intern that he has now started carrying a gun in the car. He at first played with the intern by stating the gun was there for his “protection”, but later hinted that it might “come in handy” on his way to work. When pressed, Paul stated that he would only wave the gun at a potential “highway offender” to scare him/her. He also stated he is licensed to carry the gun, and the gun is loaded. The final piece of information that the clinician tells you is the nature of the domestic violence towards the ex-girlfriend was Paul hitting this woman on the face with the barrel of a gun. Paul has been diagnosed with Intermittent Explosive Disorder (DSM-5 F63.81). Paul is employed full-time at Home Depot and works as the customer service manager for returns. Basically his job consists of being the returns and complaints manager at the Home Depot.
  26. 26. Duty to Warn Vignette Questions  What are your obligations, if any? If you find you have obligations, who are you obliged to warn? (There are 3 different groups/individuals you need to discuss). Do you have imminent danger with Paul in regards to any of these groups/individuals? 1. Currently the only form of feedback on this case comes from self- report of the intern to the clinician supervising the intern. Is this sufficient? 2. Were there any problems in the supervisory process that was described in this example?
  27. 27. Duty to Warn Vignette 2 – “Man found guilty of serial HIV assaults” From, 11/09/2004 OLYMPIA, Washington (AP) -- A man was convicted by a judge Monday on charges he deliberately exposed 17 women to HIV by having unprotected sex with them. Five of the women have tested positive for the virus, which causes AIDS. Anthony E. Whitfield, 32, faces a minimum sentence of 137 years in prison on the 17 counts of first-degree assault with sexual motivation and other charges. Health officials said as many as 170 people may have been exposed to the virus because of Whitfield's actions, counting subsequent partners of women he slept with. No additional people have tested positive for HIV, but 45 refused to be tested or couldn't be found. During the trial in Thurston County court, an Oklahoma prison official testified that Whitfield was diagnosed with HIV while incarcerated in 1992. Two women testified that Whitfield once said, seemingly in jest, that if he had HIV, he would give it to as many people as he could. Defense lawyer Charles Lane said Whitfield was addicted to methamphetamine and used women for shelter, money and sex but never meant to inflict "great bodily harm" as required for him to be convicted of first-degree assault. February 22nd , 2010 – R.D.W. of Alexandria, NJ charged with knowingly spreading HIV. This is a 3rd degree diseased-person charge (reserved for HIV or AIDS), 4th degree is for gonorrhea/syphilis. Anthony E. Whitfield, right, is handcuffed by a Thurston County corrections officer Monday.
  28. 28. 2012 NJ Court Ruling  Addressing uncharted legal waters in New Jersey, a state judge ruled that state agencies have no duty to notify a person of their partner's HIV/AIDS status when the infected person is a patient or client of the agency, according to an opinion published Friday.  Superior Court Judge Vincent LeBlon, in Middlesex County, refused to reinstate a lawsuit alleging the Newark Community Health Center, the state Department of Health and Senior Services and others violated their duty by failing to disclose the HIV status of woman's longtime boyfriend, named in the suit as “D.D.”  He said laws protecting the confidentiality of HIV/AIDS patients forbid the disclosure of such information to all but qualified personnel unless the patient has given prior written consent.
  29. 29. 2012 NJ Court Ruling  “Therefore, not only did defendants have no duty to disclose D.D.'s HIV status to plaintiff, but they were actually prohibited from doing so by New Jersey law,” the judge ruled in a case of first impression.  NJ allows the plaintiff to have a cause of action against D.D. for negligently exposing plaintiff to HIV, but that law does not require an extension of this duty to report to agencies bound by the HIV/AIDS confidentiality laws of New Jersey.  aids-risk-judge
  30. 30. HIV Reporting  As of 2009, 28 states (including NJ) now have HIV reporting for both adults and adolescents. Under great security, NJ stores names and addresses of individuals who are infected with the virus that causes AIDS.  Residents have the option of learning their HIV status without their names being reported (by being tested anonymously), if they go to 1 of 15 state-financed HIV testing and counseling sites. The approximately 200 residents per year who choose this option are identified by a number, and the state receives only demographic information like age, sex and race.  New Jersey’s system of notifying partners is voluntary. Spouses or other partners of infected people are not notified without the consent of the infected person.  A person with HIV or AIDS who knowingly infects another (which in NJ law the other person has to be unaware that their partner was infected), is given a 3rd “degree diseased person” charge. A lesser 4th degree charge is reserved for sexually transmitted diseases other than HIV or AIDS. 2009 – Leadership Seminar: “Guide to Mental Health Law in NJ and PA.” Leadership Seminars, 4020 N. MacAuthor Blvd, Ste. 122, Irving, Tx. (800) 443-6912.
  31. 31. Direct and Vicarious Liability Simmons vs. United States (1986) o A client was encouraged by a therapist to have sexual relations with him as a means of acting on her transference feelings and ultimately attempted suicide. The court found both the therapist and his supervisor negligent. The supervisor should have known about the “negligent acts of a subordinate” as there was reason to suspect something inappropriate was taking place.
  32. 32. Direct and Vicarious Liability  Direct Liability: When the actions of the supervisor were themselves the cause of harm. If the supervisor did not perform supervision adequate for a clinician. If the supervisor suggested (and documented) an intervention that was determined to be the cause of harm.  Vicarious Liability: Being held liable for the actions of the supervisee when these [actions] were not suggested or even known by the supervisor. “The supervisor is generally only held liable for the negligent acts of supervisees if these acts are performed in the course and scope of the supervisory relationship” (Disney & Stephens, 1994).
  33. 33. Vicarious Liability (Continued) “The psychotherapy supervisor assumes, in general, clinical responsibility much as if the patient were under his or her own care” (Slovenko, 1980).  Failure to properly oversee the functioning of the clinician is one of the highest liability issues. How does one best demonstrate supervisory involvement and prevent malpractice suits: 1. Documentation: supervisor should maintain personal records of dates and times when supervision was provided. (Client Name? Clinical Area Covered? Supervisee Issues Only? Writings should be brief in nature.) 2. Consultation: Regularly scheduled supervision, offering careful assessment, oversight of clinicians, and regular evaluation. 3. It is advisable for the supervisor to make an independent assessment of severely disturbed or dangerous clients.
  34. 34. Vicarious Liability (Continued) Vicarious Liability was part of the legal argument in the Tarasoff vs. Regents of California case.  In that case, the lawyer for the plaintiff argued that if the supervisor independently assessed the client (Prosenjit Poddar) and determined that the client was not dangerous, the plaintiff might not have had a case to sue.
  35. 35. Supervisor Role and Responsibilities Inherent and integral to the role of supervisor are responsibilities for: 1. Monitoring client welfare. 2. Encouraging compliance with relevant legal, ethical, and professional standards for  clinical practice. 3. Monitoring clinical performance and professional development of supervisees. 4. Evaluating and certifying current performance and potential of supervisees for academic, screening, selection, placement, employment, and credentialing purposes.
  36. 36. Priority Sequence in Resolving Conflicts 1. Relevant legal and ethical standards (e.g., duty to warn, state child abuse laws, etc.) 2. Client welfare 3. Supervisee welfare 4. Supervisor welfare 5. Program and/or agency service and administrative needs.
  37. 37. Scope of the Supervisory Relationship 1. The supervisor is the person responsible for the evaluation of the supervisee, and is able to control supervisee clinical actions. 2. It is the supervisee’s duty to perform the act in question (i.e., doing therapy with assigned clients). 3. Was the act done within the proper time, place and purpose of the act (e.g., was the act done in the counseling session or away from the counseling facility). 4. Whether the supervisor could have reasonably expected the supervisee to commit the act.
  38. 38. Confidentiality Jaffee vs. Redmond (1996) o The family of a deceased individual who was killed by a police officer attempted in a civil lawsuit to obtain information from the police officer’s therapist who was a licensed social worker, but not a licensed psychologist or psychiatrist. This case went all the way to the Supreme Court who sided with the social worker stating that legislation (that exists in all 50 states) that creates privilege for licensed psychotherapists extends to licensed psychotherapists other than psychologists and psychiatrists.
  39. 39. Confidentiality  Confidentiality represents the essence of therapy (a safe place where secrets and hidden fears can be exposed), and because much of our professional status comes from being the bearer of such secrets.  Videotapes and audiotapes are secured and confidential documents, and all supervisees must understand this.  Supervisee’s right to privacy and it is the supervisor’s responsibility to keep information confidential. It is also the supervisor’s responsibility to ensure the clinician is keeping client information confidential.
  40. 40. Confidentiality Components  Confidentiality is defined as: “an explicit promise or contract to reveal nothing about an individual except under conditions agreed to by the source or subject” (Siegel, 1979).  Privacy is defined as: “the client’s right not to have private information divulged without informed consent, including the information gained in therapy” (Siegel, 1979).  Privileged Communication is defined as: “the right of clients not to have their confidential communications used in open court without their consent” (Siegel, 1979).
  41. 41. Confidentiality Vignette As the clinical director, you have been assigned to be the HIV counselor. Your grant stipulates that all clients must be counseled and given the opportunity to test for HIV. As part of this title, you went to the state run training and are certified as an HIV counseling and testing person (one of two in your agency). Your Executive Director has taken on a small caseload and comes to you stating that one of his clients is interested in HIV testing. The client is scheduled, receives the testing, and the results come back in about 5 weeks. You inform your E.D. that the results are in, and ask her to schedule the client to see you to obtain the results. The E.D. then asks you for the results of the testing. You remember in your training that the results are strictly confidential between yourself and the client (and only the client can tell others the results of the testing), and you state this fact to the E.D.
  42. 42. Confidentiality Vignette The E.D. becomes defensive and states that the agency runs as a treatment team and he has the right to know the results of his client’s test. He starts by stating that 42 CFR – Part 2 allows this exception (clinical team staffing) to the client’s confidentiality. You state that you were given explicit instructions during your training that the test results were strictly confidential information between you and the client, and the information can only be shared if the client decides to disclose this information to his/her therapist. The E.D. then becomes angry with you and states that if you don’t hand him the paper (with the results on it), he will write you up. Sensing your hesitation and continued rebuttal, she snatches the paper out of your hand and reads the results of the test. She then publicly reprimands you that your behavior was inexcusable and will not be tolerated again. You decide to put off your request for a raise at this time.
  43. 43. Confidentiality Vignette Questions 1. Has the E.D. violated the client’s confidentiality in this matter? 2. If you decide the answer to question 1 is yes, what needs to occur in this case? With the E.D.? With the client? With the policy you tried to enforce? 3. Before anything is resolved in this matter, 2 other staff members come to you asking for the results of their client’s tests. When you rebuke their request, they bring back the discussion that took place between you and the E.D. and insist on getting the results. What steps need to happen here?
  44. 44. Exceptions to Confidentiality 1. Suicidal/Homicidal Risk 2. Medical Emergency 3. Court Order 4. Child/Elder Abuse 5. Internal Communication (e.g., billing issues, cancelled appointments). 6. When clients express the intent to commit a crime or when they commit a crime on the premises (What about admission of a crime?). 7. When the client initiates a malpractice suit against the therapist or supervisor.
  45. 45. Exceptions to Confidentiality (continued) 8. No identifying information. 9. Research/Audit and Evaluation. 10. Qualified Service Agreement (3rd Party Payer)
  46. 46. Legal Standards of Confidentiality 13:34-18.5 Confidentiality a) A licensee shall preserve the confidentiality of a information obtained from a client in the course of performing professional counseling services for the client, except in the following circumstances: 1. Disclosure is required by Federal or State law or regulation; 2. Disclosure is required by the Board or the Office of the Attorney General during the course of an investigation; 3. Disclosure is required by a court of competent jurisdiction pursuant to an order; 4. The licensee has information that the client presents a clear and present danger to the health or safety of an individual;
  47. 47. Legal Standards of Confidentiality 13:34-18.5 Confidentiality 5. The licensee is a party defendant to a civil, criminal or disciplinary action arising from the professional counseling services provided, in which case a waiver of the privilege accorded by this section shall be limited to that action; or 6. The client agrees, in writing, to waive the privilege accorded by this section. In circumstances where more than one person in a family is receiving professional counseling services, each family member who is at least 18 years of age must agree to the waiver. Absent a waiver of each family member, a licensee shall not disclose any information received from any family member. (b) A licensee shall establish and maintain procedures to protect client records from access by unauthorized persons.
  48. 48. Legal Standards of Confidentiality 13:34-18.5 Confidentiality (c) A licensee shall establish procedures for maintaining the confidentiality of client records in the event of the licensee’s relocation, retirement, or death and shall establish reasonable procedures to assure the preservation of client records. (d) In the case of a client’s death: 1. Confidentiality survives the client’s death and a licensee shall preserve the confidentiality of information obtained from the client in the course of the licensee’s teaching, practice or investigation; 2. The disclosure of information in a deceased client’s records is governed by the same provision for living clients; 3. A licensee shall retain a deceased client’s record for at least seven years from the date of last entry, unless otherwise provided by law.
  49. 49. Legal Standards of Confidentiality 13:34-18.6 Minors a) Unless otherwise ordered by a court, if the client is a minor, a parent or legal guardian will be deemed to be an authorized representative. When the client is more than 14 years of age, but has not reached the age of majority, the authorization shall be signed by the client and by the client’s parent or legal guardian. b) This section shall not require a licensee to release to a minor’s parent or guardian records or information relating to the minor’s sexually transmitted disease, termination of pregnancy, or substance abuse or any other information that in the reasonable exercise of the licensee’s professional judgment may adversely affect the minor’s health or welfare. c) Unless otherwise ordered by a court, at least one parent or guardian shall consent to the treatment of a minor. If one parent consents, a licensee may treat a minor even over the objection of the other parent.
  50. 50. Case Records & Confidentiality Suslovich vs. New York State Education Department (1991) o This was an appeal by a psychologist whose license was suspended by the state licensing board for a lack of record keeping regarding a case brought to the board by an insurance company for fraudulent billing practices. The appeal upheld the ruling on the grounds that simple record keeping, such as relying on one’s memory, was not sufficient to provide an adequate record.
  51. 51. Case Records & Confidentiality Some recommended guidelines: 1. Record no more than is essential to the functions of the agency. Identify observed facts and distinguish them from opinions. 2. Omit details of clients’ intimate lives from case records; describe intimate problems in general terms. 3. Do not include process recordings or other clinical supervision notes in case files. 4. Keep case records in locked files and issue keys only to those who require frequent access to the files.
  52. 52. Case Records & Confidentiality 5. Do not remove case files from the agency or private practice except under extraordinary circumstances with special authorization (if in private practice get permission from … yourself, but only in an extraordinary circumstance). 6. Do not leave case files on desks where janitorial personnel or others might have access to them. 7. Use in-service training sessions to stress confidentiality and to monitor observance of agency policies and practices instituted to safeguard confidentiality.
  53. 53. Case Records & Confidentiality  Federal Privacy Act of 1974 was enacted to safeguard people against “harmful disclosures of information whether through inaccurate information being used in irrelevant circumstances, or through inaccurate information being used in important decisions affecting individuals.”  Even though this is a federal law, many states have enacted corresponding statutes to protect people’s rights to privacy.  The Federal Privacy Act specifies duties for agencies/professionals that maintain record-keeping systems, including the following:
  54. 54. Agency Record Keeping Duties 1. Maintaining only information relevant and necessary to the agency’s purposes. 2. Collecting as much information as possible from the client directly. 3. Informing clients of the agency’s authority to gather information, whether disclosure is mandatory or voluntary, the principal purpose of the use of the information, the routine uses and effects, if any, of not providing part or all of the information. 4. Maintaining and updating records to assure accuracy, relevancy, timeliness and completeness.
  55. 55. Agency Record Keeping Duties 5. Notifying clients of the release of records owing to compulsory legal actions. 6. Establishing procedures to inform clients of the existence of their records, including special measures if necessary for disclosure of medical and psychological records and a review of requests to amend or correct the records.
  56. 56. Clients Access to their Own Records  Both the Freedom of Information Act (1966) and the Privacy Act (1974) establish the right of the client to have access of their own records.  Research by Freed (1978) found that agencies that tried sharing case records with clients have found that the practice contributes favorably to enhancing client’s trust and the openness of the therapeutic relationship.  When should records be withheld? 1. Only in very limited circumstances when there is compelling evidence that such access would cause serious harm to the client.
  57. 57. 13:34-18.3 Access to copy of client record 1. Licensee may request the authorization be in writing. 2. Licensee shall provide a copy of the client record and/or billing records, including reports relating to the client, no later than 30 days from the receipt of a request from client or authorized representative. 3. Unless otherwise required by law, the licensee may elect to provide a summary of the record, as long as the summary adequately and accurately reflects the client’s history and treatment. 4. Licensee may charge a reasonable fee for the preparation of a summary and reproduction of records, which shall be no greater than the amount reasonably calculated to recoup the costs of transcription or copying. 5. This obligation by the licensee includes that of completing forms or reports required for third party reimbursement of client treatment expenses. No additional fee may be charged for the completion of health insurance claim forms.
  58. 58. 13:34-18.3 Access to copy of client record 6. When the request is made for continuation of treatment with another provider or for judicial proceedings, the licensee shall not require prior payment for the professional service as a condition of making such reports available. Advance fee payment is allowed for a licensee’s services as an expert witness. 7. The licensee may withhold information contained in the client record from a client or the client’s guardian if in the reasonable exercise of his/her professional judgment, the licensee believes release of such information would adversely affect the client’s health or welfare. That record or the summary, with an accompanying explanation of the reasons for the original refusal, shall nevertheless be provided upon request of and directly to: 1. The client’s attorney; 2. Another licensed health care professional; or 3. The client’s health insurance provider
  59. 59. 13:34-18.7 (13:34-30.5[c]) Transfer or disposal of records 1. A licensee shall notify all current clients in writing the intention to terminate or interruption of services. The licensee shall seek the transfer, referral or continuation of service in relation to the client’s needs and preferences. 2. If a licensee ceases to engage in practice or it is anticipated that he/she will remain out-of-practice for more than 3 months, they must also: a) Establish a procedure by which clients can obtain a copy of the treatment records or acquiesce in the transfer of those records to another licensee or health care professional who is assuming responsibilities for the practice. However, a licensee shall not charge a client for a copy of the records, when the records will be used for the purposes of continuing treatment or care. b) Make reasonable efforts to directly notify any client treated during the six months preceding the cessation, providing information concerning the established procedure for retrieval of records; and c) If a licensee is unable to notify all clients, publish a notice of the cessation and the established procedure for the retrieval of records in a newspaper of general circulation in the geographic location of the licensee’s practice, at least once each month for the first 3 months after the cessation.
  60. 60. Clinical Supervision Recordkeeping Clinical Supervision Notes: Clinical supervision notes serve a number of functions, including:  Gathering evidence for your personal log of reflective practice.  Helping you to keep a track of your trainee’s professional development and competence during the course of his/her placement.  Provides you with evidence to help form a judgment of competence throughout the continuum, not just at evaluation points.  Can provide a focus for future supervision issues, such as reflecting on development later on in the placement.  Provides a record of decisions, judgments and perspectives taken during a supervision session.  Helps a supervisor to keep track of clinical work undertaken by the trainee.  Can provide detailed feedback to your trainee.
  61. 61. Clinical Supervision Recordkeeping Clinical Supervision Notes: Notes should be kept in such a way that the reasoning behind opinions and decisions can be understood.  Alternative courses of action that have been considered should be noted.  Alternative points of view, including disagreements between trainee and supervisor should be noted.  The way in which disagreements or interpersonal difficulties are resolved can be noted and are good topic area for future supervision discussions.
  62. 62. Clinical Supervision Recordkeeping Clinical Supervision Notes: Supervision notes are the official record of your supervision practice, over the course of a supervisee’s placement.  For the purposes of personal development and reflection, the supervisor may wish to record personal information, such as countertransference material (awareness of thoughts about being a supervisor or about the trainee, strong feelings, activation of schemas) and behavior during a supervision session. This information will be useful when seeking your own supervision.  Be aware however that all records kept in the course of your work can potentially become a matter of public record should there be a future court case or licensing board inquiry.
  63. 63. NBCC Code of Ethics: Recordkeeping  Certified counselors must ensure that data maintained in electronic storage are secure. By using the best computer security methods available, the data must be limited to information that is appropriate and necessary for the services being provided and accessible only to appropriate staff members involved in the provision of services. Certified counselors must also ensure that the electronically stored data are destroyed when the information is no longer of value in providing services or required as part of clients’ records.  Any data derived from a client relationship and used in training or research shall be so disguised that the informed client’s identity is fully protected. Any data which cannot be so disguised may be used only as expressly authorized by the client’s informed and un-coerced consent.
  64. 64. Informed Consent  "Informed consent" is a process of sharing information with clients that is essential to their ability to make rational choices among multiple options in their perceived best interest.  Informed consent was founded as a legal standard of care on the principle of individuals' rights over their own bodies and was well established by the turn of this century.  Informed consent had been enforced progressively: first for surgical procedures, then medical (non-surgical) ones, and finally for medication itself.  Until recently mental health and addictions counseling had largely avoided this standard.
  65. 65. Informed Consent  According to Beahrs & Gutheil (2001) several factors traditionally shielded psychotherapy from standard of informed consent: 1. “First and foremost was that therapeutic communications were considered sacrosanct and rarely made available to others in uncensored form.” 2. “An additional distinction was the fact that psychotherapy is physically noninvasive, with patients being conscious and able to monitor the process themselves.” 3. “Finally, the multiple uncertainties and complexities that can influence the outcome of treatment for a mental disorder make it very difficult to demonstrate convincingly any specific harm allegedly caused by the psychotherapeutic process itself.”
  66. 66. Informed Consent  The supervisor must determine that clients have been informed by the supervisee regarding the parameters of therapy.  The supervisor must also be sure that clients are aware of the parameters of supervision that will affect them.  Supervisor must provide the supervisee with the opportunity for informed consent (i.e., the conditions and parameters that dictate their existence in their workplace).  A clinician shall not withhold information that the client needs or reasonably could use to make informed treatment decisions, including options for treatment not provided by the clinician.
  67. 67. Informed Consent with Clients  What are the reasonable risks of therapy?  What are the reasonable benefits of therapy?  What are the logistics of treatment (cost, length of sessions, number of sessions)?  What are the financial incentives or penalties which limit the provision of appropriate treatment (especially when dealing with third party providers, and the limitations imposed by those payers)?  What type of therapy will be offered (what is your theoretical orientation … cognitive behavioral, marital, gestalt)?
  68. 68. Informed Consent Regarding Supervision  All clients should be informed of the supervisory process upon the first session (and what that will mean for each client, what level of supervision).  Supervisor may want to meet with the client of supervisee for a number of reasons: 1. By meeting the supervisor directly, the client usually is more comfortable with the prospect of supervision. 2. It gives the supervisor an opportunity to model for supervisee’s the kind of direct, open communication that is needed for informed consent. 13:34-13.1(g) – Prior to an LAC’s commencement of client treatment, the supervisor shall obtain a written disclosure, which shall be signed by the client and retained as part of the client record, acknowledging that the client has been informed that services are being by an associate counselor under the supervision of a professional counselor or a qualified supervisor as defined in N.J.A.C. 13:34-10.2
  69. 69. Informed Consent Vignette You are supervising an MA intern in a behavioral healthcare outpatient facility. This trainee sees a client for the first time and begins doing the intake information. You view the tape of the client and trainee, and let him know that he forgot to inform the client about the procedure of therapy, cost, and the risk/benefit of entering into therapy. You model how this should be done (as this is the intern’s first client), and assign this as the first task to happen during the next session. You also tell the intern that the tasks at hand (for the next couple of sessions) are completing the intake (assessment phase) forms, assessing client needs/wants/problems/strengths, and formulating agreed upon treatment goals. The intern states he understands. Next session, the intern follows your instructions and provides the informed consent you requested. He then continues with ASI and other standardized assessment forms with the client. During the session the client begins to talk about some of his problems, and your intern seizes the moment to do some guided imagery with him regarding the problem he was talking about (feeling abandoned by his father). After the exercise, the intern continues to fill out assessment forms.
  70. 70. Informed Consent Vignette After viewing the tape, you caution the intern not to get ahead of himself and start doing therapy (guided imagery exercise). You also informed the intern that he did not explain this technique to the client, nor did he ask the client’s permission to utilize this technique. You clearly outline to the intern what should happen in the next session (restating what was said previously regarding assessment stage tasks). The next session, the intern again continues to complete assessment forms, when the client discloses that he feels inept as a father. A light flashes in your interns mind, and he discloses to the client that privately he does work with a men’s movement organization. This organization helps men “gain integrity with themselves, with their family of origin, and with their current family’s structure.” He informs the client of a powerful technique he knows which involves blindfolding the client and leading the client around the room while the therapist asks him questions about his manhood and fatherhood. The client agrees to have this procedure done.
  71. 71. Informed Consent Vignette Excited at the prospect of doing his “life’s work” with the client, the intern scrambles to make a makeshift blindfold. He then stands the client up, holds the client’s hand, leads the client walking around the room asking the client a series of questions (e.g., “In what way are you less than a whole man” and “In what way are you strong”). Excited about the exercise he just did, and before his next scheduled supervision session with you, the intern describes to the staff (in peer supervision meeting) the details of the aforementioned exercise and his rationale for doing the exercise. In the questioning of this intern, you sense some concern from some other clinicians (e.g., one clinician asked if the client consented to this procedure and the intern stated he fully explained the procedure to the client before proceeding). At one point the meeting gets quiet and people look to you to see if you have any feedback to give your intern.
  72. 72. Informed Consent Vignette Questions 1. Has the MA intern properly done informed consent in this case example? 2. What feedback should you give the intern in peer supervision meeting? 3. Once you get this intern alone, what next?
  73. 73. Americans with Disabilities Act  The ADA Amendments Act of 2008 (ADAAA) was enacted on September 25, 2008, and became effective on January 1, 2009.  This law made a number of significant changes to the definition of “disability.”  It also directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA.  The final regulations were published in the Federal Register on March 25, 2011.
  74. 74. Americans with Disabilities Act  Who is not affected by the ADA?  Corporations fully owned by the U.S. Government (though the U.S. government is are covered by similar regulations promulgated by other disability and discrimination laws.  Indian Tribes.  Bona fide private clubs that are exempt from taxation under the Internal Revenue Code.  Private clubs and religious organizations are exempt from Title III (public accomodation) provisions.
  75. 75. Americans with Disabilities Act  The ADAAA and the final regulations define a disability using a three-pronged approach: 1. a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an “actual disability”), or 2. a record of a physical or mental impairment that substantially limited a major life activity (“record of”), or 3. when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”).
  76. 76. Americans with Disabilities Act  Definition of a person with a disability (continued)  As defined by the ADA, a disability is a physical or mental impairment that substantially limits a major life activity, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.  The final regulations also state that major life activities include the operation of major bodily functions.  The final regulations state that major bodily functions include the operation of an individual organ within a body system ( e.g., the operation of the kidney, liver, or pancreas).
  77. 77. Americans with Disabilities Act  What is “substantially limit” a major life activity mean?  The individual must be substantially limited in performing a major life activity as compared to most people in the general population.  The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.  An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.  An individual need only be substantially limited, or have a record of a substantial limitation, in one major life activity to be covered under the first or second prong of the definition of “disability.”
  78. 78. Americans with Disabilities Act  Do the final regulations require that an impairment last a particular length of time to be considered substantially limiting?  In prong 3 (“regarded as” prong) ADAAA excludes from “regarded as” coverage an actual or perceived impairment that is both transitory ( i.e., will last fewer than six months) and minor.  An impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active.  Employment discrimination can also include discriminating based on a qualified individual’s relationship or association with another individual (such as a spouse or child) with a known disability.
  79. 79. Americans with Disabilities Act  Reasonable Accommodation:  Making reasonable accommodation for the disability of a qualified applicant or employee is key to the successful employment of people with disabling conditions.  The ADA defines reasonable accommodation as efforts that may include the following adjustments (these are major examples, but not a comprehensive list): 1. Making the workplace structurally accessible to people with disabilities. 2. Restructuring jobs to make best use of an individual’s skills.
  80. 80. Americans with Disabilities Act  Reasonable Accommodation (continued): 3. Modifying work hours. 4. Reassigning an employee with a disability to an equivalent position as soon as one becomes available. 5. Acquiring or modifying equipment or devices. 6. Appropriately adjusting or modifying examinations, training materials, or policies. 7. Providing qualified readers for the blind or interpreters for the deaf.
  81. 81. Americans with Disabilities Act  ADA and Drug Use:  The definition of an individual with a disability does not include anyone who is currently engaged in the illegal use of drugs.  However, a person who has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully, or is participating in a supervised rehabilitation program is covered. ADA gives additional authority to employers: 1. Employers may utilize drug testing to ensure that individuals who have completed or are enrolled in rehabilitation programs remain drug free. 2. Employers may prohibit the use of drugs and alcohol at the workplace. 3. Hold all employees, regardless of disability, who abuse drugs or alcohol to the same job performance criteria as other employees. 4. An employer will have to prove Financial or Resource Hardship in order not to provide reasonable accommodations.
  82. 82. Dual Relationships o When a supervisor extends the boundary beyond the workplace, and specifically the supervisory relationship, the supervisory creates the potential for complications. o Dual relationships occur when a person assumes two or more roles simultaneously or sequentially with a person seeking help (client) or with a person being supervised. What makes a dual relationship unethical? 1. The likelihood that it will impair the supervisor’s judgment. 2. The risk to the supervisee of exploitation.
  83. 83. Sexual Involvement, Sexual Harassment, Harassment  Sexual Attraction  Sexual Harassment – Harassment in the workplace needs to be a pattern of behavior or a single egregious incident. There has been case precedent (3) for the latter in NJ.  ‘ “Harassment” means deliberate comments, contacts, or gestures which intimidate or offend an individual on the basis of that person’s race, religion, color, national origin, marital status, sexual orientation, physical or mental disability, or any other preference or personal characteristic, condition or status.’  It recently got easier for accusers to show they have suffered as a result of harassment.  The New Jersey Supreme Court ruled in 2004 that victims of workplace sexual harassment can sue employers for emotional stress without having to demonstrate through experts they suffered severe psychological harm.
  84. 84. Sexual Involvement, Sexual Harassment, Harassment  ‘ “Sexual Harassment” means solicitation of any sexual act, physical advances, or verbal or nonverbal conduct that is sexual in nature, and which occurs in connection with a licensee’s activities or role as a provider of professional counseling services and that is either unwelcome, offensive to a reasonable person, or creates a hostile work place environment, and the licensee knows, should know, or is told this, or is sufficiently severe or intense to be abusive to a reasonable person in that context. “Sexual Harassment” may consist of a single, extreme or severe act, or of multiple acts, and may include, but is not limited to the conduct of a licensee with a client, co-worker, employee, student, supervisee or research subject, whether or not such individual is in a subordinate position to the licensee.’  Some definitions of sexual harassment also include the following line: ‘ “Sexual Harassment” may include content of a nonsexual nature if it is based upon the sex of an individual.’  Consensual (but Hidden) Sexual Relationships. “Sexual involvement may further a human relationship, but it does so at the expense of the professional relationship” (Rubin, 1990).  (FOR SUPERVISORS) Intimate Romantic Relationships. The American Psychiatric Association, while discouraging all sexual involvement between clinicians and trainees, “realized that romantic relationships often develop in professional settings and that it in no way intended to stifle them.”
  85. 85. Nonsexual Dual Relationships  Supervisor/Therapist (the supervisor will be challenged at times to determine where supervision ends and therapy begins).  Supervisor/Recovery (how does recovery issues, AA attendance, sponsoring).  Professional/Personal (just how personal is too personal)?
  86. 86. 13:34-30.4 and 13:34-30.6 Dual Relationships/Conflicts of Interest a) LPC, LAC shall not provide services in circumstances that would expected to limit the counselor’s objectivity and impair professional judgment or increase the risk of exploitation. b) LPC, LAC shall not enter into any relationship that would be expected to limit objectivity and impair professional judgment or increase the risk of exploitation (e.g., professional treatment of business or financial relationships, students, supervisors, friends or relatives, supervision of friends and relatives and receipt of any goods and/or services from a client). c) LPC, LAC who has identified areas of conflict of interest shall notify the parties involved and shall take action to eliminate the conflict. d) LPC, LAC shall not refer a client to a service in which the counselor or his/her immediate family have a financial interest.
  87. 87. NBCC Code of Ethics on Harassment 11. 11. Certified counselors do not condone or engage in sexual harassment, which is defined as unwelcome comments, gestures, or physical contact of a sexual nature. 12. 12. Through an awareness of the impact of stereotyping and unwarranted discrimination (e.g., biases based on age, disability, ethnicity, gender, race, religion, or sexual orientation), certified counselors guard the individual rights and personal dignity of the client in the counseling relationship.
  88. 88. Sexual Relationships with Clients  National Board for Certified Counselors – Sexual, physical, or romantic intimacy can be engaged within a minimum of 2 years after terminating the counseling relationship. (Section A10).  American Counseling Association – 5 years (clients only). Must demonstrate forethought and document no potential harm or exploitation will occur. (Clients: Section A5. Colleagues/Students: Section F.3.b. no sex with only current supervisees)  American Psychological Association – 2 years … for those “most unusual circumstances”. (Clients: regulation 10.08, Colleagues/Students: regulation 7.07).  National Association of Social Workers – No sex, no time, no how … unless the social worker can prove an exception to this prohibition is “warranted because of extraordinary circumstances” and the social worker must prove it (NASW). 2 years (LCSW). (Clients: regulation 1.09, Colleagues/Students: regulation 2.07). LSW/LCSW Code of Ethics - (13:44G-10.7[c] and [c1]).
  89. 89. Sexual Relationships with Clients  American Association for Marriage and Family Therapists – 2 years. (Section 1.5). (Section 13:34-6.4 [d and d(1)]).  Licensed Professional Counselor (LPC) – 2 years. Being in love and consensual relationships are not defenses.  (Section 13:34-19:3[b, c, h, and i]). NJ LCSW, LPC and LMFT all read the same exclusion: “In the circumstances where the client is, or should be recognized by the licensee as, clearly vulnerable by reason of emotional or cognitive disorder to the exploitive influence by the licensee, the prohibition on sexual contact shall extend indefinitely.”  CADC/LCADC – Again, 2 years. (13:34C-3.3[c and c(1)d]). CADC/LCADC exclusion: “The 24 month rule shall not apply and the prohibition shall extend indefinitely in the circumstances where the former client is or should be recognized by the licensee or certificate holder as clearly vulnerable by reason of emotional or cognitive disorder to the exploitive influence by the licensee or the certificate holder.” All links were checked on 02/17/12
  90. 90. Dual Relationship Vignette Ann is your intake coordinator at the residential facility you head (as Clinical Director). One of the responsibilities you have given Ann is the scheduling of overnight staff. She does not have any type of supervisory capacity other than scheduling the overnight workers. It has come to your attention, through one of the clients, that Ann has begun a romantic relationship with one of the overnight workers. At this point you don’t do anything regarding this information. 3 weeks later, one of the other overnight workers approaches you with a complaint directed towards Ann. He states that she is playing favorites with Rodney (the alleged boyfriend). He shows you the overnight schedule and shows how Rodney has almost every weekend off, while the other 2 overnight workers fill in the majority of weekend shifts. He asks for your help to correct this situation and does not want his name put out to Ann. He states the reason for this favoritism by Ann towards Rodney is due to their romantic involvement with each other, and the fact that Ann has weekends off.
  91. 91. Dual Relationship Vignette Questions 1. Is there a dual relationship issue in this example, if so what is it? 2. Since Ann has not publicly stated she and Rodney are romantically involved, how do you go about dealing with this situation? 3. If in your conversations with Ann, she does admit to this relationship, what call do you make regarding their relationship in regards to professional functioning?
  92. 92. LAC Clinical Supervision Standards 13:34-10.2 – Definition of Supervision  ‘ “Supervision” or “supervised” means the weekly interaction with a qualified supervisor who monitors the performance of the licensed associate counselor and provides weekly, documented, face-to-face consultation, guidance and instruction with respect to the counseling skills and competencies of the LAC, which includes at least 50 hours of face-to-face supervision per one calendar year, at the rate of one hour per week, of which not more than 10 hours may be group supervision.’  ‘ “Direct supervision” means the ongoing process of supervision by a qualified supervisor who is immediately available (either in person, or by electronic means of communication and is available to engage in a dialog with the supervisee to provide guidance and direction).
  93. 93. LAC Clinical Supervision Standards 13:34-10.2 and 13:34-13.1 – Definition of Qualified Supervisor a) “Qualified Supervisor” an individual who holds a clinical license to provide mental health counseling services for a minimum of two years (obtaining at least 3,000 hours work experience subsequent to holding the license in a minimum of 2 years but no more than 6 years) in the state where the services are being provided, and who has: 1. A clinical supervisor’s certificate from the National Board for Certified Counselors Center for Credentialing and Education or its successor, or the American Association of Marriage and Family Therapy or its successor. 2. On or after October 5, 2011 shall hold an approved clinical supervisor credential from the Center for Credentialing and Education of the NBCC or an equivalent clinical supervisor credential recognized by individual’s respective healthcare licensing board. 3. Completed a minimum of three graduate credits in clinical supervision from a regionally accredited institution of higher education. 4. Those LPC’s currently engaged as supervisors who do not meet the 3,000 hour requirement must cease such supervisory relationships by 10/5/09.
  94. 94. LAC Clinical Supervision Standards 13:34-13.1 – Supervisor Qualification, Supervisor Responsibilities b) A qualified supervisor shall be responsible for creating a written supervision plan with the LAC. The supervision plan shall outline: 1) Work setting 2) LAC’s job description 3) Nature of LACs duties and qualifications 4) Nature of supervisor’s duties and qualifications c) The written supervision plan shall be approved by the Committee prior to the performance of counseling by the LAC. The DCA Committee also requires they are aware of this supervisory relationship in writing, which is done by submitting the Proposed Plan of Supervised Counseling Experience (which can be found on the LPC website or in your USB under the folder “Laws Regulations and Standards”) to them (in which you will attach your vita and your written supervision plan).
  95. 95. LAC Clinical Supervision Standards 13:34-13.1 – Supervisor Qualification, Supervisor Responsibilities d) A qualified supervisor shall perform and document the following activities with the LAC: 1) The supervisor shall perform at least one of the following activities with the LAC: i. Work as co-counselor with the LAC; ii. Observe the LAC’s sessions with clients; iii. View videotapes of the LAC ‘s session with clients; iv. Listen to audiotapes of the LAC’s session with clients; 2. The supervisor shall perform at least one of the following activities with the LAC: i. React to case presentations given by the LAC; ii. Conduct role-playing sessions with the LAC;
  96. 96. LAC Clinical Supervision Standards 13:34-13.1 – Supervisor Qualification, Supervisor Responsibilities d) A qualified supervisor shall perform and document the following activities with the LAC: 3) The supervisor shall perform all of the following activities with the LAC: i. Engage in problem-solving discussions with the LAC concerning individual clients; ii. Enter into problem-solving discussions concerning the LAC’s own problems that affect the LAC’s work with clients; iii. Offer feedback to the LAC concerning specific interventions utilized with clients; iv. Offer feedback to the LAC concerning the LAC’s personal qualities as they affect work with clients; and v. Offer feedback to the LAC concerning the supervision experience. d) A qualified supervisor shall maintain all documentation with respect to the supervision provided to LAC’s for a minimum of 3 years. A qualified supervisor shall attest to compliance with the supervision requirements of these regulations by completing all forms provided by the Committee.
  97. 97. LAC Clinical Supervision Standards 13:34-13.1 – Supervisor Qualification, Supervisor Responsibilities f) A qualified supervisor shall not supervise more than a total of six (6) mental health counselors at any one time. 13:34-10.2 - “Group supervision” means the ongoing process of supervising no more than six (6) mental health counselors at one time in a group setting by a qualified supervisor. g) Prior to an LAC’s commencement of client treatment, the supervisor shall obtain a written disclosure, which shall be signed by the client and retained as part of the client record, acknowledging that the client has been informed that services are being by an associate counselor under the supervision of a professional counselor or a qualified supervisor as defined in N.J.A.C. 13:34-10.2. If part of another document, it must be easily readable, clearly understood, signed by the client and retained as part of the client record. h) A qualified supervisor shall retain full professional responsibility for collecting fees from clients.
  98. 98. LAC Clinical Supervision Standards 13:34-13.1 – Supervisor Qualification, Supervisor Responsibilities i) A qualified supervisor shall be responsible for knowing the name and either the diagnosis or the nature of the problem of each client being treated by the LAC. A supervisor shall be ultimately responsible for the welfare of the client with respect to the treatment being rendered by the LAC. j) A qualified supervisor shall ensure that the LAC maintains, on an annual basis until the LAC is licensed as an LPC, documentation of supervised experience , using the forms provided by the Committee for that purpose. The supervisor shall attest to compliance with the standards set for in these regulations and shall indicate the hours and dates during which the LAC has been under supervision, the nature of the cases assigned and the proficiency rating earned by the LAC. k) A qualified supervisor shall supervisor only in areas for which he/she possesses the requisite skills, training and experience.
  99. 99. LAC Clinical Supervision Standards 13:34-13.1 – Supervisor Qualification, Supervisor Responsibilities l) A qualified supervisor shall not supervise an individual with whom supervisor has a relationship that may compromise the objectivity of the supervisor or impair the professional judgment of the supervisor (e.g., current and former clients, current employers, relatives of the supervisor, immediate relatives of current clients, current students or close friends). 13:34-13.2 – Responsibilities of LAC’s 1. Maintain documentation of supervised experience. 2. Not engage in practice under supervision in any area for which the LAC has not had appropriate training and education. 3. LAC may not engage in unsupervised or independent practice. 4. LAC shall not receive a fee from a client and may be compensated only through supervisor or employer. 5. LAC shall not advertise professional services.
  100. 100. Miscellaneous Ethical/Legal LAC and LPC Standards  No Bartering. Included in this under sexual misconduct section is no exchanging sexual activities for services rendered.  A licensee shall not engage in sexual harassment inside OR outside the professional setting, and could be held accountable for this occurring either inside or outside the professional setting.  5 digit license number must be used after name and license title on advertisements and business representation including business cares, stationary and directory listings.  Continuing education credits for teaching coursework (1½ CE hours credit for each hour taught, up to a maximum of 9 hours CE contact hours, 15 hours if teaching graduate coursework). The coursework must be “new” meaning the LPC must not have previously presented this material.  LAC’s can accrue 1,500 hours per year (or 125 hours per month, or 30 hours per week) towards their LPC as long as they are supervised by a qualified supervisor. Unlicensed work in master’s level internships and practicum's can account towards a maximum of 1 calendar year of the hours needed for their LPC.
  101. 101. Bibliography 42-CFR-Part 2: Title 42--Public Health CHAPTER I--PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2--CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS Association for Counselor Education and Supervision (ACES). (2001). Ethical Guidelines for Counseling Supervisors. [online, link no longer active] Beahrs, J. O. & Gutheil, T. G. (2001). Informed consent in psychotherapy. The American Journal of Psychiatry, 158(1), 4-10. Bernard, J. M. & Goodyear, R. K. (2009). Fundamentals of Clinical Supervision, 4th Ed. Allyn and Bacon, Boston, MA. Disney, M. J. & Stephens, A. M. (1994). Legal Issues in Clinical Supervision. ACA Press, Alexandria, VA. Division of Consumer Affairs, State Board of Marriage and Family Therapy Examiners, Alcohol and Drug Counselors Committee. (2009) October 9th , 2009 Rule Adoption for Alcohol and Drug Counselors. Durham, T. G. (1996). The Supervisor’s Role in Ethical Decision-Making. The Counselor. May/June, p. 7.
  102. 102. Bibliography Duty to Warn and Protect in New Jersey (originally written in 1991 and amended in 2009) - justice/62a-16.html Flinders, C. A. & Shafranske, E. P. (2004). Clinical Supervision: A Competency- Based Approach. American Psychological Association, Washington, DC. Falvey, J. E. (2002). Managing clinical supervision: Ethical practice and legal risk management. Pacific Groove: Wadsworth Godlaski, T. M. & Leukefeld, C. G. (1996). Ethics of Supervision. The Counselor. May/June, pp. 17 – 20. Keith-Spiegel, P. & Koocher, G. P. (1985). Ethics in Psychology: Professional Standards and Cases. McGraw-Hill, New York, NY. Knapp, S. & Tepper, A. M. (1996). Legal and Ethical Issues in Supervision. Taken from The Pennsylvania Psychologist Quarterly. [online] Knapp, S. & Vandecreek, L. (1997). Ethical and Legal Aspects of Clinical Supervision. In Watkins, C. E. Jr., Handbook of Psychotherapy Supervision. New York, John Wiley & Sons, Inc.
  103. 103. Bibliography Lamb, D., Presser, N., Pfost, K., Baum, M., Jackson, R., & Jarvis, P. (1987). Confronting Professional Impairment During the Internship: Identification, Due Process, and Remediation. Professional Psychology: Research and Practice, 18, pp. 597-603. Mead, D. E. (1990). Effective supervision: A task-oriented model for the mental health professionals. Brunner/Mazel, Inc., New York, NY. Powell, D. J. & Brodsky, A. (2004). Clinical Supervision in Alcohol and Drug Abuse Counseling. Jossey-Bass Publishers, San Francisco, CA. Seigel, M. (1979). Privacy, Ethics and Confidentiality. Professional Psychology, 10, pp. 249-258. Slovenko, R. (1980). Legal Issues in Psychotherapy Supervision. In A. K. Hess, Ed., Psychotherapy Supervision: Theory, Research and Practice. New York, NY. Wiley.
  104. 104. Bibliography Stoltenberg, C. D., McNeil, B., & Delworth, U. (1998). IDM Supervision: An Integrated Developmental Model for Supervising Counselors and Therapists. Jossey-Bass Publishers, San Francisco, CA. The definitions of “Sexual Harassment” and multiple regulations (including, but not limited to, 13:34-10.2, 13.34-13.1,, 13.34-18.5) were taken from the NJ State Board of Marriage and Family Therapy (LAC/LPC) Statutes and Regulations:, October 5, 2009. The definition of “Harassment” and the additional line of “Sexual Harassment” were taken from the NJ State Board of Social Work Examiners (LSW/LCSW) Statutes and Regulations:, September 18, 2008. Portions of the duty to warn material has been reproduced here with permission from, Copyright 2000 Mental Health Net. All rights reserved. [online] Understanding the ADA. (2000). Eastern Paralyzed Veterans Association. 75-20 Astoria Boulevard, Jackson Heights, NY 11370-1177. 718-803-EVPA.