Legal, Clinical, Risk Management and Ethical Issues in Mental Health


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The program outlines the fundamental differences between clinical issues, legal questions, risk management strategies, and ethical issues. While overlap exists, ethical questions arise when there are two competing ethical principles at odds. The course will reference both the ACA and the NBCC Code of Ethics. Clinical issues deal with treatment-oriented concerns. Legal issues concern state, federal, and case law, as well as statutes and regulations. Risk management typically focuses on reducing liability. Several case examples will be given to demonstrate how these issues overlap and are important to high quality of care.

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Legal, Clinical, Risk Management and Ethical Issues in Mental Health

  1. 1. John D. Gavazzi, PsyD ABPP Psychologist Ethics Educator TW Ponessa and Associates August 22, 2014
  2. 2. More ethics education Daily stories on the nexus of healthcare, psychology, morality, philosophy, and public policy. Daily email, tweet, Tumblr on ethics Podcasts Ethics Vignettes Audio/video files Articles Easy to sign up Easy to follow and FREE
  3. 3. At the end of the presentation, the participant will be able to: 1. Differentiate between clinical and legal issues 2. Define common risk management strategies 3. Explain how two competing ethical principles can create an ethical dilemma
  4. 4. Quick Review of Ethical Codes and Foundational Principles Define clinical, legal, risk management and ethical issues Risk Management as Quality Enhancement Vignette Analysis
  5. 5. • Creating a safe environment • Avoid the word “unethical” • We are all learning in this process • Demonstrate courtesy and respect for others
  6. 6. Autonomy Beneficence Nonmaleficence Fidelity Justice
  7. 7. Part of the Code of Ethics Do no harm Competence Promote Welfare of others Communicate Truthfully Integrity of the profession, avoid damaging public trust Collaboration & positive working relationships
  8. 8. Avoid harm Multiple relationships Informed Consent Managing Boundaries Documentation Cultural Sensitivity Careful with imposing your values on others Advocacy work The Counseling Relationship
  9. 9. Respecting rights and privacy Couples/Family Treatment Informed Consent Client access to records Document/Records Case Consultation Storage and Disposal of Records Community Beneficence -Danger Confidentiality and Privacy
  10. 10. Competence Specialization/CE Advertisement to public Media Presentations Professional Impairment No Sexual Harassment Nondiscrimination Professional Responsibility
  11. 11. Client Welfare Competence Informed Consent Diagnosis Cultural Sensitivity Prejudice/Pathology Appropriate instruments Forensic Issues Evaluation, Assessment & Interpretation
  12. 12. Client Welfare Competence Informed Consent Multicultural Competence Conflict of Interest Boundary Issues Sexual Issues Teaching Ethics Supervision, Training and Teaching
  13. 13. Clinical Decision-making Risk management Legal Decision-making Ethical Decision-making ◦ Professional Ethics ◦ Personal Values and Morality
  14. 14. Rules of Conduct – Profession/society More external – Community (of peers) Easier means to judge others’ actions Can constrain individual choices or create dilemmas Explicit/cognitive/external/measured
  15. 15. Personal moral compass-Believe it to be right Knowing the difference between right and wrong Emotional responses to dilemmas and actions Implicit/rapid/automatic/internal/affective Research shows people judge themselves and others based on moral characteristics – evolutionary and social reasons to judge “character”
  16. 16. What is the best clinical intervention for this patient in this situation? Am I conceptualizing this patient correctly? My patient continues to struggle after eight sessions. What should I do?
  17. 17. How do I work with a patient to minimize risk or liability? Avoid types of work that have high liability risks, such as custody evaluations or clinically complex patients. Do I have essential paperwork signed? Informed Consent or practice policies current
  18. 18. Am I compliant with state laws and regulations? Is my practice HIPAA compliant? Am I aware of relevant case law in my state? Questions are usually asked of an attorney
  19. 19. Professional Ethics Do I follow my profession’s Code of Conduct? Am I performing at the minimum or reaching for the aspirational ceiling? Is my behavior linked to a foundational principle?
  20. 20. A False Risk Management Strategy is an action or intervention that is meant to reduce liability or harm, but does not. Ironically, some of these actions or interventions likely hinder the psychologist’s ability to provide high quality of care.
  21. 21. False Risk Management strategies do not connect to overarching ethical principles
  22. 22. • Informed consent only occurs at the beginning of treatment • Informed consent mainly involves the patient to sign forms for risk management purposes
  23. 23. • Self-disclosure is never appropriate by the psychologist during psychotherapy or assessment • Self-disclosure is clearly a boundary violation that is always wrong
  24. 24. • When dealing with high risk patients, it is better to not document a great deal of information. • If you do not document much detail, then you have greater legal protection from an attorney indicating that you did something wrong. Attorneys can twist words easily, so the less the better.
  25. 25. • This is an important risk management strategy • This is the standard of care • This strategy helps the patient from actually harming him or herself.
  26. 26. • Psychotherapy is like other polite conversations, so it is improper to talk about religion. • Mental Health professionals are not sufficiently trained in religious matters. • The best strategy is to refer patients to their priest, pastor, rabbi or spiritual guide
  27. 27. Positive Ethics and Risk Management
  28. 28. Documentation Empowered Collaboration Consultation Redundant Protections
  29. 29. Required by insurers, State Boards, Professional Organizations, etc. Standard of Care A record of treatment for future providers Useful risk management tool
  30. 30. Dialogue with self and patient regarding process and goals of treatment Means to identify pertinent clinical issues Procedure to document progress Can Use to help patients see progress
  31. 31. MHPs respect patient autonomy and decisions regarding goals and process of treatment Empowered collaboration builds upon informed consent
  32. 32. Empowered collaboration maximizes patient participation in the decision-making process Patient involvement in goal setting and treatment planning MHP refrains from giving opinions and helps the patient work through ambivalence
  33. 33. Technical-oriented information Emotional reactions (countertransference) Reduction of emotional turmoil Thinking through solution together
  34. 34. Write down issues in advance Need to be open and honest Be willing to admit mistakes or clinical errors
  35. 35. Redundant Protections
  36. 36. Additional sources of information ◦ Contact PCP ◦ Collateral session with family members ◦ Prior evaluations Supervision or Consultation ◦ Legal consultation ◦ Group or Individual Use of Psychotherapy notes to aid with self-reflection
  37. 37. 1. Does the patient think you have a good working relationship? 2. Do my patient and me share the same treatment goals? 3. Does the patient report any progress in therapy? 4. Does the patient want to continue in treatment? 1. Do I believe I have a positive working relationship with my patient? 2. Is my assessment of the patient sufficiently comprehensive? 3. Do unresolved clinical issues impede the course of treatment? 4. Have I documented appropriately? Patient Collaboration Self-Reflection
  38. 38. General Rule Implement quality enhancing strategies with as much transparency as possible.
  39. 39. From real life ethical dilemmas in the mental health field
  40. 40. Vignette Warehouse on Ethics and Psychology site
  41. 41. Vignette 1: Therapist in the Middle You work in an outpatient treatment facility. Your patient reveals, during the course of therapy, that a staff person paid to have sex with another patient, who is a prostitute. The staff member works in another department in the agency. And, according to your patient, the patient (prostitute ) not aware that one of her customers works in another part of that facility. You do not know the therapist well, but you participated in a consultation group with the therapist in the past. You do not dwell on the situation with the patient. However, after the session, you feel uneasy about what your patient revealed. What are the clinical issues? What are the risk management concerns? If you could ask a lawyer one question, what would it be? What are the ethical issues?
  42. 42. Vignette 2: Character Witness? You receive a phone message from a patient. The patient is asking for you to be a “character witness” as he has an upcoming hearing for a minor criminal offense. His attorney believes that some good, written character references will really help out with the case. You have worked with the 40-year-old male patient for about a year. None of the treatment issues had to do with impulse control or antisocial tendencies. Therapy focused on depression and relationship issues. While the patient attends appointments regularly, he never made mention of any arrests or legal charges. He is likeable, even charming. He wants to discuss this issue with you at the next session. What are the clinical issues? What are the risk management concerns? If you could ask a lawyer one question, what would it be? What are the ethical issues?
  43. 43. Complete course evaluations