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Oregon Counseling Association Valley River Inn – Eugene, OR 2013 Fall Conference. Pre-Conference Workshop
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Oregon Counseling Association Valley River Inn – Eugene, OR 2013 Fall Conference Pre-Conference Workshop Ethical Issues in 21st Century Clinical Practice November 7, 2013 Presenter: Douglas S. Querin, JD, LPC, CADC-I
Introductions & Overview Who we are …. & Why we’re here 2 2 2 2 2 2 2 8/20/2014 8/20/2014 8/20/2014 8/20/2014
Caveats Today’s Comments are Not… Legal Advice Treatment Advice In lieu of Consultation/Supervision ___________________ Our Focus: How to Manage the Clinical Environment … from an Ethical Perspective 3 3 3 3 3 3 3 3 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014
Socrates had it Right… Dialogue & Interaction … Help us Learn Comments & Questions … Are Encouraged! 4 4 4 4 4 4 4 8/20/2014 8/20/2014 8/20/2014 8/20/2014
A PreliminaryObservation Learning vs. Being Reminded 5 5 5 5 8/20/2014 8/20/2014 8/20/2014
Another PreliminaryObservation Mental Health Professions & Codes Similarities vs. Differences 6 6 6 6 8/20/2014 8/20/2014 8/20/2014
Our Road Map • Principles & Values • Ethics vs. Law • Informed Consent • Boundaries • Reporting Misconduct 7 7 8/20/2014
Professional EthicsBasic Characteristics 1. Regulate Conduct 2. Determined by Consensus 3. Change over time 9 9 9 9 9 9 9 8/20/2014 8/20/2014 8/20/2014 8/20/2014
Professional Ethics Largely Informed by….. Moral Principles 1. Do No Harm 2. Promote Client Welfare 3. Promote Self- Determination 4. Honor Faithfulness (Keeping Promises) 5. Honor Equality 6. Be Truthful 11 11 11 11 8/20/2014 8/20/2014 8/20/2014
Professional Ethics Also Informed by…. • Laws • Social Trends/Policies • Technology • Insur./Managed Care • Clinical Standards • Professionalism
The Result:Competition between …. Laws, Ethics Codes, Morals, Clinical, Professional, and Social Responsibilities 13 13 13 13 8/20/2014 8/20/2014
AND … Competition between Individuals & Institutions Client THERAPIST 14
Let’s Assume …. An ethical issue has arisen in your clinical practice. There are potentially serious consequences to your client depending on how you handle the matter. You resolve the matter and the outcome is very poor. After the fact, you are asked: What Plan did you have, what Factors did you consider, and what Resources did you rely on, in reaching the decisions you did in handling this matter? How would you like to be able to respond? 16
Having an Ethical Decision-Making ModelJust Might be … a Good Idea !!! “While there is no specific ethical decision-making model that is most effective, counselors are expected to be familiar with a credible model of [ethical] decision making …” Do we have a Plan (i.e., Credible Model)? ACA Code of Ethics, Statement of Purpose, p. 3, (2005) 17 17 8/20/2014
How is Professional Conduct Regulated? 1. Licensing Boards & Professional Associations 2. Legal Actions Organiz’l Rules, Ag’mts, Contracts 3. (E.g., EAPs, Employers, Agencies, etc.) 18 18 18 18 18 18 18 18 18 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014
Legal Actions (1) Criminal: Government actions; Sanctions include fines or imprisonment (2) Civil: Actions (non-criminal) by one Party claiming, gen’ly damages against another (3) Administrative: Actions by State Regulatory Agencies (e.g., Licensing Boards) 20 20 20 20 20 20 20 8/20/2014 8/20/2014 8/20/2014 8/20/2014
Civil Law Action: Malpractice (1) Duty: Professional’s Responsibility to “Clients” (and others !) to conform to Recognized Standards of the Professional Community (2) Deviation: From those Standards (aka Negligence; Breach of Duty) (3) Damages: Physical, Emotional, Economic Injury or Loss (4) Direct Link: Causal Connection 21 21 21 21 21 21 8/20/2014 8/20/2014 8/20/2014
The Realities of Civil Litigation(i.e., Malpractice) Fees & Costs Proof/Elements of Case Time & Expense Justifying Time & Expense The “Major Case” rule Such as …… 22 22 22 22 22 22 22 8/20/2014 8/20/2014 8/20/2014 8/20/2014
Licensing Board Complaint vs. Malpractice Claim Lic. Board Complaint Malpractice 4 Issues: Duty, Deviation, Direct Cause, Damages Lawyer necessary Attorney fees Expensive/lengthy • One issue: Regs violated? • Lawyer unnecessary • No fees or costs • Relatively quick resolution
Informed Consent In the Beginning…. … there were Doctors 25 25 25 25 25 25 8/20/2014 8/20/2014 8/20/2014
What did Hippocrates tell us? “… I will prescribe regimens for the good of my patients according to my ability and my judgment …..” That is….. Physician knows best Dr. was “The Decider” Patriarchal; limited patient Autonomy 26 26 26 26 26 26 26 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014
Informed Consent Gone AwryIn the Name of Medicine…. Historically, Informed Consent was: Physician’s Prerogative Not Patient’s Right Egregious Consequences: Tuskegee, Ala. 1932 27 27 27 27 8/20/2014 8/20/2014
Patients’ Rights – Have Evolved Consumers Lawyers Canterbury v. Spence, 464 F.2nd 772 (1972), et al. Doctor’s Prerogative Patient’s Right 28
Chestnut Lodge Osheroff vs. Chestnut Lodge (1980) Informed Consent & Psychotherapy
Today Informed Consent is ….. 1. Req’d in All Health Care Professions 2. Client’s Fundamental Right - To Knowingly Accept or Refuse Tx 3. Professional’s Affirmative Duty 4. An Active, not passive, Duty 30 30 30 30 30 30 30 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014
Permission to Treat Requires…. (1) Capacity…of this Client (2) Voluntariness…by Client (3) Sufficiency of Info to Client 32 32 32 32 32 32 32 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014
Quality of Informed Consent (1) CONTENT – What’s Delivered (2) PROCESS – How Delivered (3) TIMING – When Delivered 33 33 33 33 33 33 33 33 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014
CONTENT (Clinical Considerations, Laws, Regs, Codes, Risks) Extent/nature of services Limits of confidentiality Risks/rights, alternatives Uncertain outcome Right to accept/refuse Tx Right to participate in Tx planning Fees, Cancellations, & Collection policies Taping, Recording, Observation of Sessions 34 34 34 34 34 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014
CONTENTInformation to Provide Termination/Interruption of Service Both Planned & Unplanned Custodian of Record Inform Client of Supervision Parental Consent Issues; Group Therapy Issues Coordination of treatment with other Tx Providers _____________ I/C Rules Apply to EachPerson in Client Unit (i.e., individual, couples, families, groups) 35 35 35 35 35 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014
CONTENTThe Challenge Finding the Right Balance Too Much Detail: Legalistic & Confusing Too Little Detail: Unhelpful & Misleading 36 36 36 36 36 36 36 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014
Informed Consent : PROCESSDelivery Options 1. In Writing 2. Verbally BOTH …are Necessary 37 37 8/20/2014 8/20/2014
Informed Consent - Written 38 38 38 8/20/2014 Informed Consent is too often viewed as a Risk Management Tool … … a Legal Document … for Organiz’l Protection … to get Signed ASAP Client Understanding ….. …. is often Not the Priority! 8/20/2014
Plain Language Some Recommendations 1. Signatures: By All Parties 2. Copies: To All Parties 3. Document: Receipt … & Client’s Understanding AND 4. Plain Language, when possible See, Flesch Readability Calculator See, http://www.cdc.gov/healthliteracy/pdf/SimplyPut.pdf 39 39 39 39 39 39 39 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014 8/20/2014
PROCESS– VERBAL Informed Consent…Does Not end with client’s signature on written document 40 40 40 40 40 8/20/2014 8/20/2014 8/20/2014 8/20/2014
TIMINGWhen to Inform Client Clients Change: Issues may change Clinical needs may change Interventions may change All the reasons for obtaining Informed Consent in the first place continue to exist throughout therapy!!! ContinuingResponsibility 41 41 41 41 41 8/20/2014 8/20/2014 8/20/2014 8/20/2014
What Ethics Codes tell us about Informed Consent 42 42 8/20/2014 Address it at Start of Therapy… …and Throughout Therapy: • “… as early as feasible” and as “circumstances may necessitate” (AAMFT) • “reassessed throughout” (AMHCA) • “ongoing part” of counseling(ACA)
Thorough Informed ConsentBenefits Research suggests: >Client Autonomy >Respect >Trust >Buy-in >Adherence to Tx Plan >Speed of Recovery < Anxiety 43 43 43 43 43 8/20/2014 8/20/2014 8/20/2014 8/20/2014
Boundaries &Multiple Relationships Drawing Lines Wearing Different Hats & 44 44 44 44 44 44 8/20/2014 8/20/2014 8/20/2014 8/20/2014
Boundaries Do we need them? Why? 45 8/20/2014
Boundaries – 3 Types 46 1. Classic/Traditional Boundaries 2. Boundary “Crossings” 3. Boundary “Violations” 8/20/2014
Boundary Types1. Traditional /Classic 47 • Psychoanalytical perspective • “Blank Slate” • Transference Process • Keep Physical & Emotional Distance • Discouraged: Out-of-office Contact, Self-disclosure, Touch, Expressions of Familiarity/Warmth; Gifts 8/20/2014
Boundary Types2. Boundary “Crossings” Modern Trend (“Crossings”): Crossing Traditional Boundaries Beneficial to Client/Supervisee Low risk of harm Not Unethical per se Look at Context Multicultural Influences Acceptable w/in Prof’l Community See e.g., ACA Code, Section F.3., p. 14. 48 48 48 48 48 8/20/2014 8/20/2014 8/20/2014
Boundary “Crossings” Common Examples Therapist Self-Disclosure Accepting Modest Gift Gentle Touch or Hug Attending Formal Ceremony Rural Communities Realities Inadvertent Boundary Crossings Grocery store, movie theatre, etc. Generally, occur by Choice/Chance 49 49 49 49 8/20/2014 8/20/2014 8/20/2014
The InternetAssume your clients will see….. 1. All Online postings with your name 2. All your Facebook pages & postings (and other social media sites) – unless secure privacy settings 3. All photos and other info posted by your “friends” that may identify you, unless they too have secure privacy setting 4. Match.com – Internet dating Search Yourself Regularly on Internet http://www.zurinstitute.com/onlinedisclosure.html