Michigan LPC Legal and Ethical Issues in Clinical Supervision


Published on

This is the lecture from Day 4 of the 30 hour clinical supervision workshop developed specifically for the Michigan LPC.

Published in: Health & Medicine
  • Be the first to comment

No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide

Michigan LPC Legal and Ethical 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. Michigan Definitions - Counseling  333.18101 Definitions. a) “Counseling principles, methods, or procedures” means a developmental approach that systematically assists an individual through the application of any of the following procedures: i. Evaluation and appraisal techniques. As used in this subparagraph, “appraisal techniques” means selecting, administering, scoring, and interpreting instruments and procedures designed to assess an individual's aptitudes, interests, attitudes, abilities, achievements, and personal characteristics for developmental purposes and not for psychodiagnostic purposes.
  4. 4. Michigan Definitions - Counseling d) “Practice of counseling” or “counseling” means the rendering to individuals, groups, families, organizations, or the general public a service involving the application of clinical counseling principles, methods, or procedures for the purpose of achieving social, personal, career, and emotional development and with the goal of promoting and enhancing healthy self actualizing and satisfying lifestyles whether the services are rendered in an educational, business, health, private practice, or human services setting. d) The practice of counseling does not include the practice of psychology except for those preventive techniques, counseling techniques, or behavior modification techniques for which the licensed professional counselor or limited licensed counselor has been specifically trained.
  5. 5. Michigan Definitions – Counseling redux  R 338.1751 Definitions.  Rule 1. As used in these rules: e) "Counseling philosophy” means studies that incorporate a belief system that a person can change or develop a more fully functioning self through the application of various counseling approaches regardless of the extent of the problem. f) "Counseling techniques" means the application of counseling and psychotherapy skills and theories in the counseling process in order to do all of the following: i. Establish and maintain the counseling relationship. ii. Diagnose and identify the problem. iii. Formulate a preventive, treatment, or rehabilitative plan. iv. Facilitate appropriate interventions.
  6. 6. Michigan Definitions – Counseling Part 3? MEDICAL RECORDS ACCESS ACT (EXCERPT) 333.26263 Definitions. e."Health care provider" means a person who is licensed or registered or otherwise authorized under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838, The Michigan Public Health Code for Counseling are sections 333.1801 – 333.1817 which falls between 333.16101 and 333.18838 e.to provide health care in the ordinary course of business or practice of a health profession. Health care provider does not include a person who provides health care solely through the sale or dispensing of drugs or medical devices or a psychiatrist, psychologist, social worker, or professional counselor who provides only mental health services.
  7. 7. Michigan Definitions  R 338.1751 Definitions.  Rule 1. As used in these rules:  (m) "Professional ethics" means studies that prepare students to understand and apply the legal requirements and ethical codes related to the practice of counseling.  (r) "Under the supervision of a licensed professional counselor" means under the ongoing supervision of a licensed professional counselor licensed in this state who meets the requirements of a supervisor or under the ongoing supervision of an individual in another state who substantially meets the requirements for a professional counselor license and counseling supervisor in this state.
  8. 8. Michigan “at will” status  In Michigan, many employees are considered "at-will" employees.  "At-will" employment means your employer may terminate your employment for many reasons that may be considered wrong or incorrect as long as those reasons do not violate the law.
  9. 9. 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.
  10. 10. 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.
  11. 11. 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.
  12. 12. 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, Professional Counselors, CAADACs) 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.
  13. 13. 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.
  14. 14. 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.
  15. 15. 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.
  16. 16. Michigan Duty to Warn & Protect Law  330.1946 Threat of physical violence against third person; duties.  Sec. 946. 1. If a patient communicates to a mental health professional who is treating the patient a threat of physical violence against a reasonably identifiable third person and the recipient has the apparent intent and ability to carry out that threat in the foreseeable future, the mental health professional has a duty to take action as prescribed in subsection (2). Except as provided in this section, a mental health professional does not have a duty to warn a third person of a threat as described in this subsection or to protect the third person.
  17. 17. Michigan Duty to Warn & Protect Law  330.1946 Threat of physical violence against third person; duties. 2. A mental health professional has discharged the duty created under subsection (1) if the mental health professional, subsequent to the threat, does 1 or more of the following in a timely manner: a. Hospitalizes the patient or initiates proceedings to hospitalize the patient under chapter 4 or 4a. b. Makes a reasonable attempt to communicate the threat to the third person and communicates the threat to the local police department or county sheriff for the area where the third person resides or for the area where the patient resides, or to the state police. c. If the mental health professional has reason to believe that the third person who is threatened is a minor or is incompetent by other than age, takes the steps set forth in subdivision (b) and communicates the threat to the department of social services in the county where the minor resides and to the third person's custodial parent, noncustodial parent, or legal guardian, whoever is appropriate in the best interests of the third person.
  18. 18. Michigan Duty to Warn & Protect Law  330.1946 Threat of physical violence against third person; duties.  Sec. 946. 3. If a patient described in subsection (1) is being treated through team treatment in a hospital, and if the individual in charge of the patient's treatment decides to discharge the duty created in subsection (1) by a means described in subsection (2) (b) or (c), the hospital shall designate an individual to communicate the threat to the necessary persons. 4. A licensed professional counselor who determines in good faith that a particular situation presents a duty under this section and who complies with the duty does not violate section 18117 of the public health code, Act No. 368 of the Public Acts of 1978, being section (333.18117 Privileged communications; disclosure of confidential information) of the Michigan Compiled Laws. 5. This section does not affect a duty a mental health professional may have under any other section of law.
  19. 19. 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.
  20. 20. 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.
  21. 21. 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.
  22. 22. 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.
  23. 23. 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.
  24. 24. 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.
  25. 25. 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 anymore 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.
  26. 26. 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-5 314.32). 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.
  27. 27. Duty to Warn Vignette Questions 1. What are your obligations, if any? If you find you have obligations, who are you obliged to warn? 2. 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? 3. Were there any problems in the supervisory process that was described in this example?
  28. 28. Duty to Warn Vignette 2 – “Man found guilty of serial HIV assaults” From CNN.com, 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. Anthony E. Whitfield, right, is handcuffed by a Thurston County corrections officer Monday.
  29. 29. ACA Code – Contagious Diseases  B.2.b. Contagious, Life-Threatening Diseases  When clients disclose that they have a disease commonly known to be both communicable and life threatening, counselors may be justified in disclosing information to identifiable third parties, if they are known to be at demonstrable and high risk of contracting the disease.  Prior to making a disclosure, counselors confirm that there is such a diagnosis and assess the intent of clients to inform the third parties about their disease or to engage in any behaviors that may be harmful to an identifiable third party.
  30. 30. HIV Reporting  As of 2009, 28 states now have HIV reporting for both adults and adolescents. Under great security, MI stores names and addresses of individuals who are infected with the virus that causes AIDS.  A complete set of information on Michigan Laws in regards to HIV/AIDS can be found here: http://www.nccc.ucsf.edu/docs/Michigan.pdf  333.5114a - Referral of individual to local health department; assistance with partner notification; information; legal obligation to inform sexual partners; criminal sanctions; partner notification program; confidentiality; priority duty of local health department; retention of reports, records, and data; information exempt from disclosure; biennial report.
  31. 31. Michigan HIV Partner Notification  333.5114a - partner notification … (2009) 1) A person or governmental entity that administers a test for HIV or an antibody to HIV to an individual shall refer the individual to the appropriate local health department for assistance with partner notification if both of the following conditions are met: a) The test results indicate that the individual is HIV infected. b) The person or governmental entity that administered the test determines that the individual needs assistance with partner notification. 3) A local health department to which an individual is referred under subsection (1) shall inform the individual that he or she has a legal obligation to inform each of his or her sexual partners of the individual's HIV infection before engaging in sexual relations with that sexual partner, and that the individual may be subject to criminal sanctions for failure to so inform a sexual partner.
  32. 32. Michigan HIV Confidentiality Standards  333.5131 Serious communicable diseases or infections of HIV infection and acquired immunodeficiency syndrome; confidentiality of reports, records, data, and information; test results; limitations and restrictions on disclosures in response to court order and subpoena; information released to legislative body; applicability of subsection (1); immunity; identification of individual; violation as misdemeanor; penalty.Sec. 5131. 1. All reports, records, and data pertaining to testing, care, treatment, reporting, and research, and information pertaining to partner notification under section 5114a, that are associated with the serious communicable diseases or infections of HIV infection and acquired immunodeficiency syndrome are confidential. A person shall release reports, records, data, and information described in this subsection only pursuant to this section.
  33. 33. Michigan HIV Confidentiality Standards  333.5131 confidentiality of reports, records, data, and information … 3. The disclosure of information pertaining to HIV infection or acquired immunodeficiency syndrome in response to a court order and subpoena is limited to only the following cases and is subject to all of the following restrictions: a) A court that is petitioned for an order to disclose the information shall determine both of the following: i. That other ways of obtaining the information are not available or would not be effective. ii. That the public interest and need for the disclosure outweigh the potential for injury to the patient.
  34. 34. Michigan HIV Confidentiality Standards  333.5131 confidentiality of reports, records, data, and information … 5. Subject to subsection (7), subsection (1) does not apply to the following: a) Information pertaining to an individual who is HIV infected or has been diagnosed as having acquired immunodeficiency syndrome, if the information is disclosed to the department, a local health department, or other health care provider for 1 or more of the following purposes: i. To protect the health of an individual. ii. To prevent further transmission of HIV. iii. To diagnose and care for a patient.
  35. 35. Michigan HIV Confidentiality Standards  333.5131 confidentiality of reports, records, data, and information … 5. Subject to subsection (7), subsection (1) does not apply to the following: b) Information pertaining to an individual who is HIV infected or has been diagnosed as having acquired immunodeficiency syndrome, if the information is disclosed by a physician or local health officer to an individual who is known by the physician or local health officer to be a contact of the individual who is HIV infected or has been diagnosed as having acquired immunodeficiency syndrome, if the physician or local health officer determines that the disclosure of the information is necessary to prevent a reasonably foreseeable risk of further transmission of HIV.
  36. 36. Michigan HIV Confidentiality Standards  333.5131 confidentiality of reports, records, data, and information … 5. Subject to subsection (7), subsection (1) does not apply to the following: 7. A person who discloses information under subsection (5) shall not include in the disclosure information that identifies the individual to whom the information pertains, unless the identifying information is determined by the person making the disclosure to be reasonably necessary to prevent a foreseeable risk of transmission of HIV.
  37. 37. 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.
  38. 38. 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).
  39. 39. 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.
  40. 40. 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.
  41. 41. 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.
  42. 42. 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.
  43. 43. 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.
  44. 44. 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.
  45. 45. 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.
  46. 46. 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).
  47. 47. ACA Confidentiality Components  B.3.b. Treatment Teams  When client treatment involves a continued review or participation by a treatment team, the client will be informed of the team’s existence and composition, information being shared, and the purposes of sharing such information.  B.3.c. Confidential Settings  Counselors discuss confidential information only in settings in which they can reasonably ensure client privacy.  B.3.d. Third-Party Payers  Counselors disclose information to third-party payers only when clients have authorized such disclosure.
  48. 48. ACA Confidentiality Components  B.3.e. Transmitting Confidential Information  Counselors take precautions to ensure the confidentiality of information transmitted through the use of computers, electronic mail, facsimile machines, telephones, voicemail, answering machines, and other electronic or computer technology.  B.3.f. Deceased Clients  Counselors protect the confidentiality of deceased clients, consistent with legal requirements
  49. 49. 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.
  50. 50. 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.
  51. 51. 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?
  52. 52. Exceptions to Confidentiality 1. Suicidal/Homicidal Risk 2. Medical Emergency 3. Court Order 4. Child/Elder Abuse 333.16281 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, or there is disciplinary action on the professional counselor. 333.16244
  53. 53. Exceptions to Confidentiality (continued) 8. No identifying information. 9. Research/Audit and Evaluation. 10. Qualified Service Agreement (3rd Party Payer)
  54. 54. Legal Standards of Confidentiality  333.18117 Privileged communications; disclosure of confidential information.  Sec. 18117. 1. For the purposes of this part, the confidential relations and communications between a licensed professional counselor or a limited licensed counselor and a client of the licensed professional counselor or a limited licensed counselor are privileged communications, and this part does not require a privileged communication to be disclosed, except as otherwise provided by law. Confidential information may be disclosed only upon consent of the client, pursuant to section 16222 (duty to report) if the licensee reasonably believes it is necessary to disclose the information to comply with section 16222, or under section 16281 (initiation of child abuse and neglect proceedings).
  55. 55. 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.
  56. 56. 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.
  57. 57. 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.
  58. 58. 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:
  59. 59. 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.
  60. 60. 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.
  61. 61. 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.
  62. 62. Michigan Medical Records Access Act  333.26265 Request by authorized individual to examine or obtain medical record; response by health care provider or facility; extension of response time.  Sec. 5. 1. Except as otherwise provided by law or regulation, a patient or his or her authorized representative has the right to examine or obtain the patient's medical record. 2. An individual authorized under subsection (1) who wishes to examine or obtain a copy of the patient's medical record shall submit a written request that is signed and dated by that individual not more than 60 days before being submitted to the health care provider or health facility that maintains the medical record that is the subject of the request.
  63. 63. Michigan Medical Records Access Act  2(a) Make the medical record available for inspection or copying, or both, at the health care provider's or health facility's business location during regular business hours or provide a copy of all or part of the medical record, as requested by the patient or his or her authorized representative.  2(b) If the health care provider or health facility has contracted with another person or medical records company, the provider or facility needs to obtain those records from the company and comply with 2(a).  2(c) Inform the patient or his or her authorized representative if the medical record does not exist or cannot be found.
  64. 64. Michigan Medical Records Access Act  2(e) If the health care provider or health facility determines that disclosure of the requested medical record is likely to have an adverse effect on the patient, the health care provider or health facility shall provide a clear statement supporting that determination and provide the medical record to another health care provider, health facility, or legal counsel designated by the patient or his or her authorized representative.  2(f) If the health care provider or health facility receives a request for a medical record that was obtained from someone other than a health care provider or health facility under a confidentiality agreement, the health care provider or health facility may deny access to that medical record if access to that medical record would be reasonably likely to reveal the source of the information. If the health care provider or health facility denies access under this subdivision, it shall provide the patient or his or her authorized representative with a written denial.
  65. 65. Michigan Medical Records Access Act  2(g) The health care provider, health facility, or medical records company shall take reasonable steps to verify the identity of the person making the request to examine or obtain a copy of the patient's medical record.  (3) If the health care provider, health facility, or medical records company is unable to take action as required under subsection (2) and the health care provider, health facility, or medical records company provides the patient with a written statement indicating the reasons for its delay within the required time period, the health care provider, health facility, or medical records company may extend the response time for no more than 30 days. A health care provider, health facility, or medical records company may only extend the response time once per request under this subsection.
  66. 66. Michigan Medical Records Access - Fees  333.26269 Fee. Sec. 9. 1. Except as otherwise provided in this section, if a patient or his or her authorized representative makes a request for a copy of all or part of his or her medical record under section 5, the health care provider, health facility, or medical records company to which the request is directed may charge the patient or his or her authorized representative a fee that is not more than the following amounts: a) An initial fee of $20.00 per request for a copy of the record. b) Paper copies as follows: i. One dollar per page for the first 20 pages. ii. Fifty cents per page for pages 21 through 50. iii. Twenty cents for pages 51 and over. 3. A health care provider, health facility, or medical records company shall waive all fees for a medically indigent individual for 1 copy.
  67. 67. Michigan Record Retention Legislation  333.16213 Retention of records.Sec. 16213. 1. An individual licensed under this article shall keep and maintain a record for each patient for whom he or she has provided medical services, including a full and complete record of tests and examinations performed, observations made, and treatments provided. Unless a longer retention period is otherwise required under federal or state laws or regulations or by generally accepted standards of medical practice, a licensee shall keep and retain each record for a minimum of 7 years from the date of service to which the record pertains. The records shall be maintained in such a manner as to protect their integrity, to ensure their confidentiality and proper use, and to ensure their accessibility and availability to each patient or his or her authorized representative as required by law.
  68. 68. 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.
  69. 69. 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.
  70. 70. 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.
  71. 71. 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.
  72. 72. 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.”
  73. 73. 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.
  74. 74. 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)?
  75. 75. 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.
  76. 76. Informed Consent – Prof. Disclosure  333.18113 Professional disclosure statement. 1. A licensee shall furnish a professional disclosure statement to a prospective client before engaging in counseling services. 2. A professional disclosure statement required under this section shall contain all of the following: a. The licensee's name, business address, and telephone number. b. A description of the licensee's practice. c. A description of the education and experience of the licensee. d. The licensee's counseling fee schedule. e. The name, address, and telephone number of the department. 3. The disclosure statement shall accompany the original application for licensure. Any changes in the disclosure statement shall be filed with the department within 30 days after the changes are made.
  77. 77. Informed Consent Vignette You are supervising a Social Worker 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.
  78. 78. 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.
  79. 79. 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.
  80. 80. 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?
  81. 81. 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.
  82. 82. 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.
  83. 83. 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”).
  84. 84. 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).
  85. 85. 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.”
  86. 86. 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.
  87. 87. 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.
  88. 88. 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.
  89. 89. 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.
  90. 90. Harassment Defined in Michigan  Not all harassment by your employer is illegal despite being rude or mean.  Some important points to remember about harassment and whether it is illegal are: 1. The harassment must be "severe and pervasive," meaning that it must be substantially serious and/or frequent. Minor harassment is not actionable (i.e. not illegal under employment law) and isolated incidents of harassment are most likely not actionable unless extremely severe. For example, petty insults or infrequent statements made in bad taste are not "severe and pervasive," especially when not directed at the complaining employee.
  91. 91. Harassment Defined in Michigan 2. The harassment must be based on a protected characteristic, such as race, sex, or disability, or a protected activity, such as reporting or opposing discrimination based on one of those protected characteristics. Another example of protected activity is reporting (or being about to report) a violation (or suspected violation) of the law to a public body under the Whistleblowers' Protection Act. 3. Harassment caused by things such as personal animosity, personality conflicts or mean people is not actionable unless it is also based on protected characteristics or protected activity. 4. The harassment must be unwelcome. For example, if an employee is not offended by or participates in sexual joking engaged in by coworkers, the coworkers' joking is not "unwelcome" and does not create a hostile work environment.
  92. 92. Harassment Defined in Michigan 5. Harassment that interferes with or is intended to interfere with an employee's employment is also actionable, as are "intimidating" or "offensive" work environments. 6. Requiring sexual favors for employment, promotion or other employment benefits is sexual harassment and against Michigan and federal law.  It is crucial that employers respond in a timely, objective manner in regards to properly investigating complaints of harassment/sexual harassment.
  93. 93. Harassment Defined  750.411h Stalking; definitions; violation as misdemeanor; penalties; probation; conditions; evidence of continued conduct as rebuttable presumption; additional penalties.  Sec. 411h.  (c) “Harassment” means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.
  94. 94. Discriminatory Harassment Defined  What is Discriminatory Harassment?  Per Chapter 9 of the Civil Service Rules, discriminatory harassment means unwelcome advances, requests for favors, and other verbal or physical conduct or communication based on religion, race, color, national origin, age, sex, sexual orientation, height, weight, marital status, partisan considerations, disability, or genetic information under any of the following conditions:  Submission to the conduct or communication is made a term or condition, either explicitly or implicitly, to obtain employment.  Submission to or rejection of the conduct or communication by a person is used as a factor in decisions affecting the person’s employment.
  95. 95. Discriminatory Harassment Defined  What is Discriminatory Harassment?  Per Chapter 9 of the Civil Service Rules, discriminatory harassment means unwelcome advances, requests for favors, and other verbal or physical conduct or communication based on religion, race, color, national origin, age, sex, sexual orientation, height, weight, marital status, partisan considerations, disability, or genetic information under any of the following conditions:  The conduct or communication has the purpose or effect of substantially interfering with a person’s employment or creating an intimidating, hostile, or offensive employment environment.
  96. 96. Prohibited Behaviors  Listed below are general examples of discriminatory harassment, which may include, but are not limited to: 1. Requests for sexual favors; 2. Talking about or calling attention to another person’s body or sexual characteristics; 3. Unwelcome physical contact, including but not limited to hugging, rubbing, touching, patting, pinching, or brushing another person’s body;
  97. 97. Prohibited Behaviors 4. Crude or offensive language, degrading words or comments, sounds, innuendo, slurs, gestures, negative stereotypes, threats, or jokes, whether communicated verbally, by electronic mail, or otherwise, used to denigrate an individual’s age, color, disability, height, genetic information, marital status, national origin, partisan considerations, race, religion, sex, sexual orientation, or weight; 5. Displaying pictures, letters, objects, graffiti, screen savers, cartoons, calendars, posters, or other visuals used to denigrate an individual’s age, color, disability, height, genetic information, marital status, national origin, partisan considerations, race, religion, sex, sexual orientation, or weight; or 6. Continuing certain behavior after another person has objected to that behavior.
  98. 98. 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.
  99. 99. 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.  ‘ “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.’  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.”
  100. 100. Sexual Involvement, Sexual Harassment, Harassment  Definition of Sex Harassment:  Elliott-Larsen Civil Rights Act 453 of 1976 as Amended by Public Act 202 of 1980:  Sec 103(h) Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when: i. Submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing. ii. Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual's employment, public accommodations or public services, education, or housing. iii. Such conduct or communication has the purpose or effect of substantially interfering with an individual's employment, public accommodations or public services, education, or housing; or creating an intimidating, hostile, or offensive employment, public accommodations, public services, education, or housing environment.
  101. 101. 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)?
  102. 102. 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.
  103. 103. 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. http://www.nbcc.org/Assets/Ethics/nbcc-codeofethics.pdf (Section A10).  American Counseling Association – 5 years (clients only). Must demonstrate forethought and document no potential harm or exploitation will occur. http://www.counseling.org/Files/FD.ashx?guid=ab7c1272-71c4-46cf-848c-f98489937dda (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”. http://www.apa.org/ethics/code/index.aspx (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). http://www.socialworkers.org/pubs/code/code.asp (Clients: regulation 1.09, Colleagues/Students: regulation 2.07).
  104. 104. Sexual Relationships with Clients  American Association for Marriage and Family Therapists – 2 years. http://www.aamft.org/imis15/content/legal_ethics/code_of_ethics.aspx (Section 1.5).  Michigan Licensed Professional Counselor (LPC) – 2 years after the cessation of a therapeutic relationship.
  105. 105. Michigan Law – Sex with Clients  Sex with clients - House Bill 4525 (2001)  The bill amended the Michigan Penal Code to extend fourth-degree criminal sexual conduct (CSC) penalties to sexual contact by a "mental health professional" with a client or patient. "Mental health professional" would mean that term as defined in the Mental Health Code (an individual who is trained and experienced in the area of mental illness or developmental disabilities and is one of the following: a physician, psychologist, or registered professional nurse licensed to practice in Michigan; a certified social worker, social worker, or social worker technician registered in Michigan; a licensed professional counselor licensed to practice in Michigan; or a licensed marriage and family therapist).  The bill added a proviso in which the actor was a mental health professional and the sexual contact occurred during or within two years after the period in which the victim was the mental health professional's client or patient, and the victim was not his or her spouse. Fourth-degree CSC is a misdemeanor punishable by up to two years' imprisonment, a maximum fine of $500, or both.
  106. 106. 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.
  107. 107. 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?
  108. 108. LPC Clinical Supervision Standards  333.16109 Definitions; S to T. Sec. 16109. 2. “Supervision”, except as otherwise provided in this article, means the overseeing of or participation in the work of another individual by a health professional licensed under this article in circumstances where at least all of the following conditions exist: a. The continuous availability of direct communication in person or by radio, telephone, or telecommunication between the supervised individual and a licensed health professional. b. The availability of a licensed health professional on a regularly scheduled basis to review the practice of the supervised individual, to provide consultation to the supervised individual, to review records, and to further educate the supervised individual in the performance of the individual's functions. c. The provision by the licensed supervising health professional of predetermined procedures and drug protocol.
  109. 109. LPC Clinical Supervision Standards  R 338.1752 Application requirements; licensure by examination. Rule 2.  (3)(a)(i) For an applicant who has received a master’s degree in counseling or student personnel work, not less than 3,000 hours accrued in not less than a 2-year period, with not less than 100 hours of regularly scheduled supervision accrued in the immediate physical presence of the supervisor. The supervision begins upon the issuance of the limited license and continue until the licensed professional counselor license is issued.
  110. 110. LPC Clinical Supervision Standards  R 338.1757 Requirements to provide counseling supervision.  Rule 7. 1. Before providing counseling supervision, a licensed professional counselor shall comply with 1 of the following: a. For licensed individuals who were providing supervision on or before January 1, 2013, have training in the function of counseling supervision and have acquired at least 3 years of experience in counseling. b. For licensed individuals who began providing supervision after January 1, 2013, have acquired at least 3 years of practice in counseling and have completed training in the function of counseling supervision that complies with the requirements of subrule (2) of this rule. 2. Training in the function of counseling supervision shall include both of the following requirements: a. Include 1 of the following as specialized training: i. 2 semester hours of graduate credit in training in counseling supervision. ii. 30 contact hours of workshop training in counseling supervision.
  111. 111. LPC Clinical Supervision Standards b. The specialized training specified in subrule (2)(a) of this rule shall include studies in all of the following topics: i. Roles and functions of counseling supervisors. ii. Models of counseling supervision. iii. Mental health-related development. iv. Methods and techniques in counseling supervision. v. Supervisory relationship issues. vi. Cultural issues in supervision. vii. Group supervision. viii. Legal and ethical issues in counseling supervision. ix. Evaluation of supervisee and the supervision process.
  112. 112. LPC Clinical Supervision Standards 3. Before the onset of supervision, a licensed professional counselor shall provide a supervisee with a written statement that addresses the licensee’s supervising qualifications, including how the licensee complies with the requirements in subrules (1) and (2) of this rule. 4. A licensee who provides counseling supervision shall keep ongoing documentation, including, but not limited to, performance and clinical notes, for each supervisee on the supervision being provided.
  113. 113. 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 http://www.access.gpo.gov/nara/cfr/waisidx_02/42cfr2_02.html Association for Counselor Education and Supervision (ACES). (2001). Ethical Guidelines for Counseling Supervisors. http://www.siu.edu/~epse1/aces/documents/ethicsnoframe.htm [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. Durham, T. G. (1996). The Supervisor’s Role in Ethical Decision-Making. The Counselor. May/June, p. 7. Duty to Warn and Protect (Michigan) was taken from the Michigan.gov website at: http://www.legislature.mi.gov/(S(2sqpnp3gyzuqxjfcvqkg5d45))/mileg.aspx? page=GetObject&objectname=mcl-330-1946 [Online] – Accessed 06/29/13.
  114. 114. Bibliography 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. http://www.papsy.org/ 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.
  115. 115. 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.
  116. 116. 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. Multiple legal sections on confidentiality, informed consent, and other standards were taken from the Michigan.gov Public Health code (counseling section) website: http://www.legislature.mi.gov/(S(wytqr5unsvlbdprpgsmsfwru))/mileg.aspx? page=getObject&objectName=mcl-368-1978-15-181 [Online] – Accessed 06/29/13. The definition of “ Sexual Harassment” was taken from Michigan.gov at: http://www.michigan.gov/mdcr/0,1607,7-138-4954_4997-16281--,00.html [Online – Accessed 06/29/13. Portions of the duty to warn material has been reproduced here with permission from http://mentalhelp.net/, 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.
  117. 117. Bibliography Information on the standards of harassment in Michigan was taken from Fett & Fields, Employment Law Attorney’s blog: http://www.fettlaw.com/blog/2013/06/is- harassment-by-your-employer-illegal.shtml Information on the Michigan Medical Records Act was taken from: http://www.legislature.mi.gov/(S(wduxmheo4xa5u245bpov4mja))/mileg.aspx? page=getobject&objectname=mcl-Act-47-of-2004&query=on&highlight=333.26261 Many different Michigan regulations were stated in this PPT and taken from Chapter 333: http://www.legislature.mi.gov/(S(asizywmqpusgwc551tzoib45))/mileg.aspx? page=getObject&objectName=mcl-chap333 Definition of Discriminatory Harassment was found: http://www.michigan.gov/lara/0,4601,7-154-10573_35828_59075-346213--,00.html