Confidentiality is Everywhere…or so it seems

• Insurance forms• Case notes, client files,

telephone messages • Disposal of charts, client data• Referral sources• Sound Proofing• Consultation• Informal discussions

Confidential…..but…

When is a ‘counselor’ not a ‘counselor’?

• Fall of 2007: The Columbus Dispatch reported details gained from school records.

• Information in the story was supplied to the Dispatch by a licensed counselor who worked for the school.

• The licensed counselor was “concerned that no one was closely watching (the alleged perpetrator)”.

Penley v. Westbrook(Available on my website)

• Peggy Penley and her husband sought marriage counseling with their pastor, Rev. C.L. “Buddy” Westbrook

• They were seen individually and in a group.

• In 2000 Penley told Westbrook that she was divorcing her husband. Westbrook recommended an attorney.– She resigned her church membership in accordance with the bylaws– Westbrook met with church elders and distributed to the congregation

a letter about her decision.• He further noted her relationship with another man.• Church members were asked to “shun” her in accordance with church

discipline.

Penley v. Westbrook(Available on my website)

• Peggy Penley and her husband divorced in 2001 – she subsequently married the “other man.”

• She sued Westbrook– Rev. Westbrook is a licensed counselor

• The suit was initially ruled out by a lower court– the actions were in keeping with established church discipline.

• Upon appeal, her right to sue was upheld.

Penley v. Westbrook(Available on my website)

• Westbrook’s attorney proposes that his client has First amendment rights as a pastor that override “secular authority” (e.g. counselor laws).

• Penley’s attorney holds that the case is about “negligence by a licensed counselor, not about the church.”

• http://star-telegram.com May 2, 2006

Penley v. Westbrook(Available on my website)

• June 29, 2007: Texas Supreme court dismisses Penley’s right to sue due to “lack of jurisdiction”

Legalize for us legal geeks

“Even if the pastor's dual roles as the parishioner's secular counselor and her pastor could be distinguished, he could not adhere to the standards of one without violating the requirements of the other. Therefore, the court held that its interference with the pastor's actions through imposition of tort liability would impinge on matters of church governance in violation of the First Amendment.”

Note: yep, Buddy won-after four years and a trip to the state supreme court !

Penley v. WestbrookWhat do you think?

• The issues:– In what role was Rev. Westbrook functioning when he

engaged in counseling with M/M Penley? (pastor OR counselor)

– Do secular authorities have the right to determine ‘internal church matters’ (as stated by Westbrook’s lawyer?)

– How might you handle a similar situation with a counseling client?• Are you licensed?• What difference does that make in terms of liability,

confidentiality?

Documentation, Malpractice and Liability too !

The Importance of Being Documented (Whether or not you are Ernest)

OR-”if you didn’t document it, you didn’t do it….”

Documentation

• Record of what was done and why– something WAS DONE– what was NOT DONE

• Guidance• Record• Risk Management

Guidance: The Bliss Line of records• Counselor– Chart progress in treatment for counselor/client– Focus treatment, help counselor recall previous sessions– Inform ongoing treatment planning

• Supervisor– Informs of counselor’s clinical focus, course of tx. ,

compliance with tx. Plan– Guides counselor’s training, development– Enables supervisor to conform to ethical and legal

standards of supervision, client care

Guidance: The Bliss Line of records• Colleagues– Continuity of care: a lesson plan in your absence– History of tx. for a new therapist

• Client– Serve client’s legal needs – Assure client of progress in treatment – Record of attendance, activity

Documentation: The Base Line of Records

• Auditors– Utilization Review

• In house• External

• Accreditation• Continuous improvement standards• Certification based on minimum standards of documentation.

(JCAHO, etc.)• Managed Care Representatives

– Approval for ongoing authorizations– Timely processing of reimbursement– Tracking approvals, precertification for specialized services (e.g. testing).

Risk Management: The Bottom Line

• Attorney, Ethics Board, Client– Defend counselor from malpractice/ethics

complaints– Prevent prosecution or finding in favor of plaintiff

against counselor/employer– Support counselor’s claims of ethical behavior.– Assist client in legal proceedings (e.g. disability

claims, pain/suffering, adoption)• So you won’t lose your license and become a

burden on society

So how should I document what I do?• Follow the guidelines set

out by your state, ethical guidelines.

• Pay attention in your treatment planning courses.

• Ask your supervisor.• There are numerous

acceptable formats.• Let’s look at some

suggestions from the State of Ohio.

SOQICSolutions for Ohio’s Quality Improvement and Compliance

• a statewide initiative within the mental health system dedicated to improving quality, reducing costs, and ensuring compliance with federal requirements.

• A collaboration between (ODMH), (ODADAS) mental health boards, providers and clients. Their primary goal is implementation of a a standardized consumer-centered, compliant and cost-effective mental health delivery system.

• As part of this effort, standardized forms that comply with local and national standards as well as fulfill the information needs of practitioners.

• Practitioners, consumers, family members and regional and statewide legal and advocacy groups were included in the development of these forms

• A strategy designed to transform service delivery and documentation and addresses three of the President's New Freedom Commission on Mental Health goals: – Mental Health Care is Consumer and Family Driven – Excellent Mental Health Care is Delivered and Research is Accelerated – Technology is used to Access Mental Health Care and Information

Documentation Revisited

• Minimal requirements according to the OAC– Dates and types of counseling– Termination and billing information– Kept by licensee for five years– Accurate in terms of dates of service and when notes were written

• Appropriate diagnosis(es)• Individual service plan (aka treatment plans)• Only include information directly related to delivery of services• Limit client’s access to records only in “extraordinary circumstances”

– Document client’s request for records and rationale for withholding part, or all of the record(s)

• Do no t “condone, partake, or assist in billing irregularities/fraud with respect to insurance companies or direct billing”

• Completely read and understand section of chapter 4757 re: noncustodial parent’s access to records.

Further recommendations regardingRisk Management

Wheeler and Bertram pp. 122-123

• At-Risk Situation• Assessment• Options• Rule Out• Consultation/

supervision• Actions Taken• Follow Up

Competence and Malpractice

• Competence and Malpractice– Nally v. Grace Community

Church of the Valley– Rutherford v. Strand et. al.

• Dual Relationships

• What would you do?

Malpractice and the Law

• What’s a Tort?– “A tort is a noncriminal, civil or private

wrong, independent of contract for which the law allows money damages as redress for injuries suffered.” (Collins, p. 59).

– “..wrongful actions taken by one person against another (other than breach of contract).” (Wheeler and Bertram, p. 26)

• Intentional• Unintentional

Nope-those are TARTS !

Malpractice and the Law• So…What’s malpractice?– “act or omission by a professional practitioner

in the treatment of a patient or client inconsistent with the reasonable care or skill usually demonstrated by ordinary, prudent practitioners of the same profession, similarly situated.”(Collins, p.59).

– “..negligence in carrying out professional responsibilities or duties…intentional infliction of emotional distress, or other torts even if the term malpractice does not technically apply.”

(Wheeler & Bertram p. 34)

Malpractice: Case Law Identifies 5 Common Circumstances

• Unauthorized release of information• Negligent treatment of suicidal or

aggressive clients.• Dual/Multiple or Sexual Relations

between client and therapist– Includes family counseling issues

• Failure to adequately Diagnose• Improper Care/Hospitalization of a

client.

Contributory and Comparative Negligence

• Contributory: The client’s behavior caused or aggravated the injury

• Comparative: Therapist may be found to share in a percentage of the injury even if client is found to have contributed.

Some definitions might help….

• Duty: “A legal obligation to act in the best interest of the client” Wheeler and Bertram , p. 11

• Standard of Care: “a level of care that is consistent with the degree of learning, skill, and ethics ordinarily possessed and expected by reputable counselor practicing under similar circumstances.” (Wheeler & Bertram, p. 12.)

Nally v. Grace Community Church of the Valley March 31, 1980

• Ken Nally was seen in “formal counseling sessions” between Jan. and April of 1978 with Duane Rea at the church after expressing suicidal ideation.

• Mr. Nally continued to talk to church counselors Mr. Rea and Rich Thomson on an informal basis

• On March 12, 1979 he again attempts suicide by overdose and is hospitalized.– Confides to Grace Church ministers that he is sorry he was not successful and

that he plans to try again.– Upon discharge he lives with the John MacArthur family for six days, then

returns to his parents’ home.• Sometime between March 30 and April 1, 1979 he ends his life with a

firearm.• March 1980, Mr. Nally’s parents file a $1 million dollar negligence and

clergy malpractice suit in L.A. Superior Court against Grace Church, John MacArthur, Lynn Cory, Duane Rea, Richard Thomson.

Nally v. Grace Community Church of the Valley March 31, 1980

• Full suit name is Nally v. Grace Community Church of the Valley, John MacArthur, Richard Thomson, Duane Reas and Lynn Corey

• Liability of para/non professional pastoral counselors for the suicidal death of a person they have counseled.

• The case took 18 months to reach the first judgment, 3 years to the first appeal judgment-TEN YEARS total.

• It is estimated that Mr. Nally Sr. spent $100,000.00 on research and other expenses associated with the case. This is in addition to pro bono legal representation!

• Twice the lower court summary judgment was reversed by the appellate court, returning the case to the lower court.

Nally v. Grace Community Church of the Valley March 31, 1980

Judge Thomas Murphy grants defense motion for summary judgment, dismissing suit on grounds that there was insufficient evidence to sustain claims of clergy negligence.

2nd circuit court overturns dismissal stating that the church and its ministers were guilty of “outrageous conduct.”

Nally v. Grace Community Church of the Valley March 31, 1980

Judge Joseph Kalin granted a defense motion for nonsuit, citing First Amendment separation of church and state protects Grace Church ministers2nd circuit court of appeals again reverses

dismissal, citing church members “special relationship” with Ken Nally.

Ruled the relationship contained a legal duty to act affirmatively to prevent his suicide.

California Supreme court dismisses the case (2-1), stating no special relationship.

U.S. Supreme court declines, without comment, to hear the case.

Nally v. Grace Community Church of the Valley

“The court had refused to allow the Nally’s clergy malpractice claim, but it did not seem to rule out the possibility that under different facts, a clergyman (sic) might be liable. In a footnote to its opinion the majority stated that the decision did not foreclose liability on nontherapist counselors who held themselves out as professionals”Weitz (2001). Clergy malpractice in America: Nally v. Grace community church of the valley. University of Kansas Press. P. 186.

Rutherford v. Strand et. al.Greene county (MO) circuit court

• Beth Rutherford sought counseling with Donna Strand at her church.

• Beth ‘recovered’ memories of terrible and chronic abuse between the ages of 7 and 14.

• Tom Rutherford was fired by his employer, lost his ministerial credentials

• Beth recanted. The family initiated a 12 million dollar malpractice suit, settling out of court.

Nally v. Grace ChurchRutherford v. Strand et. al.

• What is your initial (‘gut’) reaction to these cases?• What standards of the AACC or ACA ethics

codes might have helped guide the people providing counseling in these cases?• How will you handle similar situations

differently?

Alcoholics Anonymous World Services, Inc. (1976). Alcoholics Anonymous. (Third Edition) New York: Author, p. 130.

“Those of us who have spent much time in the world of spiritual make-believe have eventually seen the childishness of it. This dream world has been replaced by a great sense of purpose, accompanied by a growing consciousness of the power of God in our lives. We have come to believe He would like us to keep our heads in the clouds with Him, but that our feet ought to be firmly planted on earth. That is where our fellow travelers are, and that is where our work must be done. These are the realities for us. We have found nothing incompatible between a powerful spiritual experience and a life of sane and happy usefulness. “

Nonsexual Dual Relationships

• ACA:” Avoid When Possible…”

• Boundaries Help to Maintain and Clarify

• Bartering

• Social Relationships with Clients

• Physical contact with clients

How about another Vignette ?

• Boundaries and Dual Relationships– Friendship vs. Professional relationship.

• You’ll have many opportunities to practice setting and maintaining boundaries.

• Counseling and research literature has many different perspectives on this issue

Research Perspectives on Nonsexual Dual Relationships in Counseling

• Blurred boundaries tend to distort professional nature of the relationship. (Pope and Vasqez, 1998).

– Impair therapist’s judgment

– Increase potential for conflict of interest and exploitation of the client.

– Therapist may tend to ignore the potential for more serious harm by minimizing the effects of a dual relationship.

– Authors warn against rationalizing that dual relationships are prevalent, inevitable, unavoidable, reflective of tradition. This can lead to “softening of boundaries.”

Research Perspectives on Nonsexual Dual Relationships in Counseling

• Dual relationships are subtle and complex. Tom (1993) – Simplistic solutions are not appropriate– Ethics codes are too narrow– Avoiding dual relationships does not

automatically prevent exploitation– Keeping distance from client enhances the power

differential, promotes “vertical hierarchy in the therapeutic relationship”

Research Perspectives on Nonsexual Dual Relationships in Counseling

• Transference, countertransference, resistance, and interpretation all involve some form of dual relationship (Hedges, 1993).

– Psychoanalytic perspective

– The beneficial aspects of therapy are thus a result of dual relationships of a sort.

Research Perspectives on Nonsexual Dual Relationships in Counseling

• Not all dual relationships can be avoided and are not necessarily harmful (Herlihy & Corey, 1997).

– Mentoring involves blending of roles, but both mentor and learner benefit.

– There is not a clear consensus in the field re: nonsexual dual relationships.

– Use safeguards to protect yourself and the client.

Research Perspectives on Nonsexual Dual Relationships in Counseling

• The counselor must identify boundary violations in order to make an ethical response. (Gabbard, 1994, 1995, 1996; Smith & Fitzpatrick, 1995).

• Proposed categories of boundary violations from the ACA 2005 ethics code:– Invitation to a social event from a client.– Gifts from clients.– Attending the same social/religious/exercise/recovery

group.– Avoidance of “complex entanglements” is advocated as a

reason for avoiding these common boundary violations

“New” GuidelinesHermann and Robinson-Kurpius (2006). New guidelines on dual relationships Counseling Today,

December, 2006, pp. 8-9.

• Standard A.5.c notes that relationships that can be beneficial to the client are not banned.– Counselor must “document in case records prior to the

interaction (when feasible) the rationale for such an interaction, the potential benefit and anticipated consequences for the client …and other individuals significantly involved with the client or former client.”

– “Such interactions should be initiated with appropriate client consent.”

“New” GuidelinesHermann and Robinson-Kurpius (2006). New guidelines on dual relationships Counseling Today,

December, 2006, pp. 8-9.

• Standard F.3.b prohibits “romantic or sexual relationships” with current supervisees.

• F.3.c notes that supervisors “do not condone or subject supervisees to sexual harassment.”

• Supervisors are expected to “clearly define and maintain ethical, professional, personal and social relationships with their supervisees”

• So, supervisors do not accept supervisory relationships with close relatives, friends, etc.

• Ethics rules for counselor educators (F.10) are the same as above for their interactions with students

Nonsexual Dual Relationships in Counseling

• Distinguish between a boundary “crossing” and a boundary “violation” Guthiel & Gabbard, 1993).

• Boundary Crossing– Departure from commonly accepted practices in

ways that could benefit the client

• Boundary Violation– Serious breach that results in harm to the client.

Research Perspectives on Nonsexual Dual Relationships in Counseling

• Not all boundary crossings result in violations. (Twemlow, 1997)

• Key: Prevent crossing from becoming violations by:– Early detection– Vigilance– Self awareness

So, boundaries are important?

• You betcha…• Is there any research about what predicts

therapists who run into boundary problems and exploit their clients?

• I’m glad you have the insight to ask !!

Characteristics of The Abusive Therapist

• Unresolved major personal issues• Male, older than the female client• Has difficulty in interpersonal relationships,

Maintaining boundaries.• Sees themselves as above professional structure• Engages in excessive self disclosure• Resistant to consultation---isolated• Uses “innovative” therapies

POSSIBLE Clues to Unacknowledged Sexual Feelings

• Dehumanization of the person• Avoidance• Obsession about the client, details of their

situation• “Interesting” slips, meaningful mistakes• Fantasizing about the client during sexual activity.• Isolation of client from family or other natural

supports-making them dependent on the therapist.

• Creation of secrets special only to the counseling relationship.

What Would You Do ?

Bartering for Therapy