Ethics & the Law Review 2012

1. Ethics & the Law Review 2012 Jim Brown, Ph.D. Les Kertay, Ph.D., ABPP Tennessee Psychological Association Annual Convention Nashville, Tennessee November 3. 2012

2. TPA Ethics Committee Jim Brown, Ph.D., Chair Les Kertay, Ph.D., Chattanooga Wyatt Nichols, Ph.D., Memphis Ramsey McGowen, Ph.D., Johnson City Ed Smith, Ph.D., Chattanooga Alice Garland, Ph.D., Nashville 2

3. Standard Disclaimer This consultation is provided as a service of the Tennessee Psychological Association Ethics Committee. Please be aware we cannot provide legal advice. The information provided in this consult is accurate, to the best of our knowledge, but is not an official position of the Ethics Committee or the Tennessee Psychological Association. You are not required to accept or follow any recommendations given by the Ethics Committee. Ultimately, as a licensed psychological practitioner, you are responsible for your actions. 3

4. Agenda Federal Laws State Laws Rules and Regulations of the Board of Examiners in Psychology APA Ethics Code Technology Risk Management 4

5. Resource Materials APA Ethics Code APA website (HIPAA, HITECH) Tennessee Code Annotated http://www.tennessee.gov/ http://www.lexisnexis.com/hottopics/tncode/ BOE Rules and Regulationshttp://health.state.tn.us/Boards/Psychology/ Assessing and Managing Risk in Psychological Practice:An Individualized Approach. Bennett, Bricklin, Harris, et al.(APAIT) The Trust. 5

6. ASSESSING & MANAGING RISK Ethics and the Law 2012 6

7. Assessing & Managing Risk Assessing and Managing Risk in Psychological Practice: An Individualized Approach Reviewed an "old" model for risk management focused on adherence to rules and laws Identifies a "more advanced model" of risk management affirms the need to know and follow rules / laws recognizes potential conflicts within the "controlling" rules focuses on utilizing "moral principles" of ethics code to resolve conflicts 7

8. Knapp and VanderCreek (2005) Ethics code does not provide answers to every situation / conflict EC uses terms like "reasonable" or "as appropriate” EC may be silent regarding emerging areas of competence EC does not clearly address conflicts between EC and laws or organizational policy EC does not address conflicts between ethics code standards EC does not prescribe / forbid any "higher" standards 8

9. Beauchamp and Childress (2002) Principles of Biomedical Ethics (2002)  Recent example of effort to identify underlying ethical values APA ethics code development driven by similar concept of "underlying principles" (values) Effort to identify basic values / principles 9

10. Autonomy Respect for humans as free moral agents Right to decide for themselves Free from control of others (including psychological practitioners) With sufficient understanding to allow meaningful choice 10

11. Beneficence Help others Do good 11

12. Non-Malfeasance “Do no harm” intentionally Do not impose risks of harm without permission 12

13. Justice Respect for people's rights Respect for laws "Fairness” 13

14. APA Guiding Principles of the Ethics Code Beneficence and Non-Malfeasance Fidelity and Responsibility Integrity Justice Respect for People’s Rights and Dignity 14

15. Principle A: Beneficence & Non-Malfeasance Psychologists try to: benefit those with whom they work do no harm safeguard the welfare and rights of others resolve conflicts, seeking to avoid or minimize harm avoid misuse of professional skills or influence be aware of effect of personal issues on others 15

16. Principle B: Fidelity & Responsibility Psychologists try to: establish relationships of trust be aware of responsibility to society / community uphold professional standards of conduct clarify professional roles and obligations accept responsibility for behavior avoid exploitation or harm consult, refer, cooperate with others for best interests of clients contribute a portion of professional time pro bono 16

17. Principle C: Integrity Psychologists seek to: promote accuracy, honesty, and truthfulness not steal, cheat, engage in fraud, misrepresent fact keep promises; avoid unwise or unclear commitments minimize mistrust / harm arising from "ethical" use of deception 17

18. Principle D: Justice Psychologists: recognize fairness entitles all persons to access / benefits of psychology minimize unjust practices due to bias, limits of competence 18

19. Principle E: Respect for People’s Rights & Dignity Psychologists: respect the dignity and worth of all people respect the rights of privacy, confidentiality, self-determination seek to protect rights and welfare of those with impaired autonomous decision-making are aware / respect cultural, role, individual differences try to eliminate biases affecting their work 19

20. APAITrisk management model Focuses on utilizing moral principles when seeking to resolve conflicts between "rules” Encourages the process of logical thinking regarding values Identifies primary elements of risk management that utilize the principles informed consent Documentation Consultation Seek to "maximize adherence to a dominant ethical principle while minimizing harm to competing principles". 20

21. APA ETHICS CODE Ethics and the Law 2012 21

22. 1.02 1.02 Conflicts between Ethics and Law, Regulations, or Other Governing Legal Authority Old: "if… ethical responsibilities conflict with law, regulations, other governing legal authority… make known commitment to the ethics code… Psychologists may adhere to the requirements of law… authority.” New: "… clarify nature of the conflict… take reasonable steps to resolve… Under no circumstances may this standard be used to justify or defend violating human rights." 22

23. 1.03 1.03Conflicts Between Ethics and Organizational Demands Old: "… if conflict… clarify nature of conflict… make known commitment to the ethics code… To the extent feasible, resolve conflict in a way that permits adherence to… ethics code." New: "… if conflict… take reasonable steps to resolve… Under no circumstances may the standard be used to justify or defend violating human rights." 23

24. Example 1 Patient with multiple severe health problems, including a number of potentially lethal ones (if not treated). Patient comes to therapy with depression and poor quality of life. Patient chooses to stop taking medications for those health conditions, seriously threatening her life by the decision. What are the relevant ethical codes? What are the relevant laws? What are the relevant ethical principles? What are potential good quality of care / risk management procedures? 24

25. Example 2 You evaluate and begin to treat a new patient. You belatedly realize the patient is the soon-to-be ex-husband of an existing patient. What are the relevant ethical codes? What are the relevant ethical principles? What are potential good quality of care / risk management procedures? 25

26. BOARD OF EXAMINERS RULES & REGULATIONS Ethics and the Law 2012 26

27. 1180-1-06 Patient Records (a) Duty to maintain records every patient every service / consultation (b) "Notice" to patients within 30 days of "notice" requirement publication in a newspaper OR posting at practice location 27

28. 1180-1-06 Patient Records (cont) (d) Transfer of Records death or retirement of practitioner all patients seen in last 18 months/2 visits "notified” inform patients copies of record can be sent to new practitioner by patient authorization departure from a practice group (death, retirement, departure) governed by group contract controller of records must do "notice” 18 month / 2 visit rule informed patients of practitioner's new address, opportunity to transfer treatment/records (unless prohibited by contract) 28

29. 1180-1-06 Patient Records (cont) (e) Sale of Psychological Practice ensure transfer of records to practitioner with equal standards of confidentiality "notice" to patients regarding sale patient given opportunity to transfer records to another practitioner 18 month / 2 visit rule (f) Abandonment of Records death is not abandonment 63-11-215 requires provisions for security, transfer, and availability of patient records at death 29

30. 1180-1-06 Patient Records (cont) (g) Retention of Records not less than 7 years from last contact incompetent patient records retained indefinitely records of minors: 7 years or age 19 (the longer) no destruction of records while involved in a dispute (h) Destruction of Records no record "singled out" for destruction destruction only in the ordinary course of business, by established policy destruction by burning/shredding; maintain confidentiality record time, date, circumstances of destruction maintain record of destruction 30

31. 1180-1-08 Continuing Education 40 hours of CEU's 9 hours: Type I 9 hours: Type I or Type II 22 hours: Type I, Type II, or Type III "Jurisprudence and Ethics": 3 hours TCA title 63 "AND" BOE Rules and Regulations APA ethics code CEUs every 2 calendar years January 1-December 31 PRIOR to renewal date 31

32. BOE "policy statement" regarding Jurisprudence and Ethics "Jurisprudence" requirement can be met by: reading and discussing with colleagues TCA 63, chapter 11 and BOE Rules and Regulations written statement attesting to "discussion” date, names of licensed individuals in the discussion signed by licensee 1 hour CEU credit (Type III) still need "ethics" CEU (2 more hours) 32

33. Documentation of CEU Completion keep documentation for 5 years prepare summary report annually make documentation available to BOE on request 33

34. 1180-1-15 Advertising and Other Public Statements Definition: public statements related to: professional services, products, publications, or to the field of psychology paid or unpaid advertising, printed materials, directory listings, resumes interviews / comments to media statements in legal proceedings lectures / oral presentations 34

35. Statements by Others Practitioners: who hire others to create/place public statements retain responsibility for the statements make reasonable efforts to prevent others whom they do not control from making deceptive statements make efforts to correct deceptive statements by others do not compensate employees of media in return for publicity identify paid advertisements as advertising (or it is readily apparent) 35

36. Avoidance of False or Deceptive Statements Practitioners: do not be false, deceptive, misleading, or fraudulent mislead by what they state, convey, suggest, or omit regarding research, practice, work, or affiliation Examples: training, degrees, credentials, services, scientific basis, fees, research findings 36

37. Media Presentations Practitioners presentations: based on appropriate literature and practice consistent with ethics code recipients not encouraged to infer a professional relationship 37

38. Testimonials do not solicit from current patients or others vulnerable to undue influence In-Person Solicitation Do not do uninvited solicitation of business from actual or potential clients (or vulnerable others) 38

39. 1180-1-16 Consumer Right- to- Know Act Practitioners must report to BOE if: malpractice judgment, award, or settlement of $10,000 or greater any criminal felony conviction conviction or adjudication of any misdemeanor involving: sex, alcohol or drugs physical injury/threat of injury to any person abuse or neglect (minor, spouse, elderly) fraud or theft 39

40. 1180-2-01 Scope of Practice (Psychologist) HSP designation for healthcare services Limit services to competence areas (by training, education, supervised experience) HSP services: psychological evaluation (abilities, personality, neuropsychological) Diagnosis psychological treatment psychoeducational evaluation, diagnosis, treatment Non--HSP services psychological services to business 40

41. 1180-3-01 Scope of Practice (Senior Psychological Examiners ) Limit services to competence areas (by training, education, supervised experience) HSP services: psychological evaluation Diagnosis psychological treatment psychoeducational evaluation, diagnosis, treatment Non--HSP services psychological services to business 41

42. 1180-3-01 Scope of Practice (Psychological Examiners) Without Supervision: limit services to competence areas (by training, education, supervised experience) psychological testing of abilities, interests, personality psychological services to business With Supervision: psychological evaluation Diagnosis psychological treatment 42

43. 1180-2-01 Standards for Supervision Supervision must meet minimum identified standards Supervisor of record must be made known to the BOE Supervisor must: be qualified by experience and training to perform the supervised activity provide supervision on a regular and frequent basis have HSP if supervising health services limit number of supervisees provide supervision separate from administrative supervision 43

44. Standards for Supervision (continued) primarily on 1-to-1 basis other supervision (group, seminar) may be extra "considerable" 1-to-1 time for each client records maintained by supervisor number of patient therapy hours supervised hours of supervision given (1-to-1) documentation of clients discussed no dual relationships (supervisor/supervisee) supervisor responsible to provide adequate time and availability supervisee also responsible to obtain supervision supervision arrangements by mutual agreement supervisor may reduce intensity of supervision (based on observed competence) 44

45. Standards for supervision time Provisional Psychologist licensure (new license, seeking one-year supervision for HSP) 1 hour per week "New" Psychological Examiner (less than 5 years experience) 1 hour per week "Experienced" Psychological Examiner (greater than 5 years experience) "no less than monthly" (based on judgment of supervisor). 45

46. Violations of Scope of Practice Claiming expertise, using techniques without education or supervised training Knowingly permitting unqualified individuals to perform psychological services Failing to adequately supervise trainees or employees Deliberately assisting others to violate or circumvent Practice laws or rules Providing or claiming to provide health services without HSP designation  46

47. TENNESSEE CODE ANNOTATEDTN LAWS RELATED TO THEPRACTICE OF PSYCHOLOGY Ethics and the Law 2012 47

48. 63-1-149 Criminal Background Checks Any provider under title 63 shall perform a "Registry Check” "Do not hire" any offender for "direct patient care” State-by-state check in any state lived in for previous 7 years national sex offender Public Registry website adult abuse Registry Links to all websites on Department of Health website Not applicable to contracted, external staff (no direct patient contact) 48

49. 63-1-109 Display of License or Certificate of Registration Display original / copy of license, conspicuous location Sign, 1 inch lettering, name, professional degree, type of license Photo ID, name, type of license OR Written notification, name, type of license, at initial office visit Website: name, type of license 49

50. 63-1-141 Default on Student Loans Practitioners defaulting on student loans guaranteed by: Tennessee Student Assistance Corporation United States Secretary of Education Default to result in suspension, denial, or revocation of license Payment or entry into payment plan can result in return of license 50