Texas University and College Counseling Directors Association Conference April 19, 2012

Doing the Right Thing: Ethics and Risk ManagementRoles, Rules, and Regulations: Finding Our Way

Texas University and College Counseling Directors Association ConferenceApril 19, 2012

Today’s Focus

Knowing versus doing ethical practice Considerations for our students,

supervisees, and ourselves Regulatory oversight

An overview of the process and trends Ethical challenges on campus

Current cases and trends

Application of Ethical Principles

What we know we should do, we don’t do Whether students in training or

seasoned clinical psychologists The nature of the ethical issue and its

affective implications for the trainee or practitioner appears to influence to what degree we do that which we know is consistent with ethical practice

(Bernard, et al., 1986, 1987)

Ethical Decision-Making vs. Ethical Willingness

Study by Betan & Stanton, 1999 95% of students (N=256) were aware of

what they should do (i.e., involve training director or supervisor in case of colleague’s continued drinking problem)

Half would do less than what they believed they should do

Knowledge vs. Behavior

The gap between knowing and doing what is considered ethical is likely greater for practitioners in general than is empirically known

(Rogerson, et al., 2011)

Perspectives

Context may alter not only one’s perspective but affective experience

Multiple Perspectives

may require a multitude of perspectives

Finding the path

Hardening of the Categories

ASSIMILATION WITHOUT ACCOMMODATIONOr At Least, Without Adequate and Accurate Accommodation

Assimilation and Accommodation

http://www.learningandteaching.info/learning/assimacc.htm

Assimilation and Accommodation

Over-assimilation without adequate accommodation may occur when information is learned but without the depth of understanding needed to engage in a way that changes practice

(Alton-Lee, 2006)

Cognitive Errors and Decision Making

Without sufficient cognitive categories in which particular information may be filed, or

Understanding and appreciation of important differences in information is not present, then

Cognitive errors will occur and affect our quality of decision making

Over-Assimilation vs. Accommodation

Accommodation might look more like this Than like this

Hardening of the Categories

“There is no graver threat to the process of discovery than that dread disease, ‘hardening of the categories’.” (attributed to Bob Miller, San Francisco artist and science educator)

(image retrieved 04/01/2012 from http://isaac.exploratorium.edu/dbarker/bobmiller.html

Ethics and Professional Acculturation

Personal Ethics

Professional Ethics

High Low

High

Low

IntegratedProfessionally informed;

guided by personal compassion and

affective awareness; highly effective professionally

AssimilatedAdopted professional standards, but lacks

compassion; may become rigid and

legalistic

SeparatedPersonal compassion not restrained by professional

ethics; may get over involved (runaway

compassion)

MarginalizedLow professional and

personal standards; risks becoming exploitative

Adapted from Knapp & VandeCreek, 2009

Failure to assimilate or accommodate ethical principles consistent with social norms

Under-Accommodation: At risk for professional lapses, although not with malicious intent, possible failure to maintain good boundaries

Under-Accommodation: At risk for professional lapses, due to failure to see or appreciate the “big picture’

Assimilation and accommodation of personal and professional values with integration: Readily considers “big picture,” various alternatives, and implications while weighing how personal values may influence best judgment for better or worse

Decision Making

Decision making is affected by common errors of judgment Intuitive, automatic

reasoning and decision making is heavily influenced by affective components

Rational reasoning requires more cognitive effort ▪ Natural reliance on

cognitive shortcuts

Decision Making: Heuristics and Algorithms

A heuristic is a problem solving strategy This can range from an “educated

guess” to “trial and error” “Rules” for various kinds of problem

solving A heuristic can range from simple to

more complex, but does not provide a definitive outcome

An algorithm is a specific set of directions that will result in a specific outcome

Heuristics vs. Algorithms

Cooking by taste follows a heuristic based on what the cook believes should go into how a prepared food tastes and what the outcome should be

Cooking by following a recipe is the use of an algorithm that will result in a predefined outcome assuming the recipe is followed and conditions are right

Decision Making

Making decisions is part of every day life and making ethical decisions is part of day-to-day practice and business in any mental health setting

Consequences may make the process of decision making a greater challenge

A decision making strategy can help to facilitate the process of making a decision and facilitate a proactive approach to address the critical issue

A Systematic Model for Decision Making

1. Identify the problem

2. Consider the significance of the context and setting

3. Identify and use ethical and legal resources

4. Consider personal beliefs and values

5. Develop possible solutions to problem

6. Consider potential consequences of various solutions

7. Choose & implement a course of action

8. Assess the outcome and implement change as needed

Bush, Connell, & Denny, 2006

Regulatory ProcessA Licensing Agency Perspective

Rules, Enforcement, and Compliance

Rules development may be in response to Legislative directive Request for consideration of a particular

rule Number of disciplinary actions that may

indicate need for clarified limits Regulatory disciplinary process

Disciplinary action is generally complaint driven

May be initiated by the Board

TSBEP – FY 2011

Complaints

CE Completion (55%)Sexual Misconduct (1%)School Psyc Srvcs (3%)Child Custody (9%)Forensics-General (6%)General Administrative (6%)General Therapy (16%)Cease & Desist (3%)Miscellaneous (1%)

Child Custody 9%

Continuing Education 55%

General Therapy 16%

Forensics 6%

Administrative 6%

School Psyc Servcs 3%

Sexual Misconduct

1%

Cease & Desist 3%

Misc 1%

When a Complaint is Filed

Reviewed for “reasonable cause” to believe that a violation has occurred

Most violations are resolved by an agreed order without other action being taken

If a respondent licensee wishes, they may meet with representatives of the Board at an Informal Settlement Conference Both the respondent and complainant

may present their perspectives at this meeting

Agreed Orders

CE Requirement

Admin Penalty

Reprimand/Suspension (Probation)

Personal Problems

Forensic

Supervision

Records

Informed Consent

Evaluation Reports

Valid license-School

Legal Action – Unreported

CE Repeat Offender

Potential Areas of Ethical Challenge

Organizational Administrative Roles Potential conflict between institutional

values and professional ethical values Adequate consent forms Documentation Security Vetting of new staff and license status

Supervisory oversight Licensed professional staff Practicum students and interns

Areas of Potential Ethical Violations

Use of titles by supervisees Appropriate representation of self and status to

others Adequacy of consent forms

Adequate coverage of relevant issues Level of comprehensibility

Adequacy of direct face-to-face supervision Frequency Content Documentation Timely feedback to supervisee


Breach of confidentiality Office environment▪ Transmission of sound and conversation▪ Positioning of computer data screens or

appointment books Electronic record storage ▪ Policies regarding handling protected

information in an electronic form, e.g., adequate encryption▪ Report preparation and storage on personal

computers and/or portable memory devices


Breach of professional boundaries Assignment of cases ▪ Consideration of not only professional skill but

professional maturity▪ Case history may raise questions regarding client-

therapist match▪ How was determination of assignment made

Out of office therapy sessions ▪ Policies regarding if, when, and where such

sessions should take place

Psychologist Trainees and TSBEP Rules

Individual must have official status of trainee in order to be supervised Trainee must be enrolled in a training

program and registered in a course that requires the supervised training, i.e., a practicum course or internship

Proposed rule pending approval requires timely performance feedback to supervisees (465.2)

Pending Board Rule Clarification for Professional Boundaries

Stipulates that intimate involvement with significant others of a current patient/client is considered detrimental 465.13 (b)(4) reference slide 465.13 (d) reference slide

Ethics in ContextCurrent and Emergent Legal Issues

Pending and Potential

Emotional-support animals on campus

Mental health and student status Mental health and “duty to warn” Personal ethics vs. professional value

s and training of mental health professionals

Data management – flash drives, personal laptops, and ‘cloud’ storage

Texas legal requirements for reporting of childhood sexual abuse

Texas and Mandated Reporting August 2011, TSBEP received a request

from a university department of psychology and counseling to clarify “requirements for psychologists in light of Texas Family Code, the Attorney General Opinion Letter, and our professional ethics.” The letter expressed concern for clear

understanding legal duty as it applies to “the professional ethics and duties we owe to our clients” as well as clear and accurate training of graduate students

Texas and Mandated Reporting In 1995, reporting of abuse or neglect

of a child in its most well known form became a mandated requirement (Texas Family Code, Subchapter B, Sec. 261.101)

In May 1997, the CSOT requested an opinion from the Office of the Attorney General Do requirements of mandated reporting

apply when “incomplete or dated” information is received from a client ?

Response to 1997 Request to OAG

In July 1997, the TSBEP General Counsel filed a brief with the OAG in response to the OAG requests for opinions from stakeholders The brief concluded: “Nothing in the statute

appears to provide a mental health professional with the discretion to ‘use good judgment’ in determining whether a report of child abuse is ‘too dated ‘ or too incomplete’ to justify compliance with Family Code 261.101.

If a professional has “cause to believe” a child has been abused, then obligated to comply with the reporting requirements of the statute

OAG’s Response to 1997 Request

In November 1997, Attorney General Dan Morales responded to the question re: “Whether Family Code section 261.101(a) permits a registered sex-offender-treatment provider discretion to report information regarding possible child abuse.”

Responded to whether the “exception” as described by the CSOT is consistent with Family Code 261.101

OAG’s Summary re: 1997 Request

A person who suspects that a child has been abused or neglected must report that suspicion immediately to the appropriate authorities. The agency may not permit a licensee “to

decide whether to report a suspicion where the suspicion is based on dated or incomplete information.▪ Not knowing child’s name or identity of caregiver is

not an exception▪ Reporting professional who “acts in good faith….is

immune from civil or criminal liability”

Response to Recent Request The TSBEP responded that

It is required to abide by statutory requirements mandating reporting abuse or neglect of a child

Based on the current OAG opinion, there is no exception to reporting, it is irrelevant whether or not the child is currently being abused or if the child is now an adult

Reporting must occur, even if previously reported Determination of the relevance of the report and further

investigation is the prerogative of the authorities taking the report

Informed consent “should clearly indicate that if the client reveals to the psychologist any child abuse, regardless of whether the client is the perpetrator, the victim, or somehow simply privy to such abuse, the psychologist by law must report suspected abuse.”

Additional TSBEP Response On December 2011, the agency requested

an additional clarifying opinion in the context of the concerns expressed by the university psychology and counseling department letter to TSBEP “Whether a mental health professional who is

treating an adult patient must report any abuse or neglect, as those terms are defined in Chapter 261 of the Texas Family Code, that the mental health professional has cause to believe occurred during the adult patient’s childhood.”

Additionally, if such report is required

Are HIPAA standards violated by reporting any such childhood abuse and neglect of an adult under state law?

Does duty to report apply if perpetrator is deceased or whereabouts are unknown?

To what authority should the report of childhood abuse or neglect of an adult be directed?

Does the mental health professional have to report the abuse or neglect if the abuse or neglect has previously been reported?

Mental Health on Campus Therapy dogs

U.S. DOJ (on behalf of student) vs. University of Nebraska at Kearney (filed Nov 2011)

Mental health and student status Nott v. George Washington University

(agreement 10/31/2005) City University of New York (agreement

08/2006)

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Mental health and “duty” to warn Virginia Tech shootings (2007) Oikos University, Oakland, California

shootings (April, 2012) Personal ethics vs. civil rights and tra

ining of mental health professionals Ward v. Eastern Michigan University

(2012) Keeton v. Anderson-Wiley, et al. (2011)

Data management Report preparation and storage on

personal computers and flash drives▪ Policies and procedures for handling of digital

data necessary “Cloud computing” – off-site data storage

by third party vendors ▪ No regulatory or legal guidance yet▪ No law suits▪ Deveraux & Gottlieb recommend caution and

believe that cloud-based data storage may pose unnecessary risk at this time

, “yet”

Proposed Rules - Pending

465.2(f) A supervisor must document in writing, at least every three months, the supervision activities and the supervisee's performance during a practicum, internship, or period of supervised experience required for licensure and must provide this documentation to the supervisee.

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465.13(b)(4) Licensees do not terminate psychological services with a client [person] in order to have a sexual relationship with that client [person]. Licensees do not terminate psychological services with a client in order to have a sexual relationship with individuals who the licensee knows to be the parents, guardians, spouses, significant others, children, or siblings of the patient.

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465.13(d) A licensee may not engage in sexual harassment, sexual impropriety, or a sexual relationship with a current patient or client; a former patient or client over whom the licensee has influence due to a therapeutic relationship; students[;] or trainees; individuals who the licensee knows to be the parents, guardians, spouses, significant others, children, or siblings of current patients; or a supervisee over whom the licensee has administrative or clinical responsibility. A licensee may not engage in a sexual relationship with individuals who the licensee knows to be the parents, guardians, spouses, significant others, children, or siblings of former patients for at least two years after termination of services. Return to slide

Emotional Support Animals Americans with Disabilities Act

Cannot treat individual differently simply because of a disability

Reasonable accommodations must be made if individual qualifies

State and local governments must offer services in “the most integrated setting” that allows an individual to participate as fully and independently in community life as possible

Rehabilitation Act (Section 504) Fair Housing Act

Emotional Support Animals Rehabilitation Act (Section 504)

Prevents discrimination by organizations and employers (i.e., any that receive financial assistance from any Federal department or agency)

physical or mental impairment that substantially limits one or more major life activities

“Reasonable accommodation” requirement

Emotional Support Animals Fair Housing Act

Prohibits discrimination based on “a physical or mental impairment which substantially limits one or more of such person's major life activities”

Discrimination includes “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling”

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Mental Heath and Student Status

When does a student’s mental health and behavior constitute sufficient risk to warrant requiring them to leave campus?

What defines which student may constitute a “direct threat?”

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Mental Heath and Student Status Notts case

Student experienced depression following suicide of friend and was seen at university counseling center where antidepressant meds were prescribed

Subsequently, he felt worse, began worrying about an adverse drug reaction, and admitted himself to the university hospital

“Within hours,” he received notice he could not return to his dorm without clearance from the UCC and his dorm

He soon received another notice that he had violated the schools code of conduct by “endangering behavior”

Option to appeal to a review board, but if found guilty, faced suspension or expulsion▪ Could withdraw and later apply for readmission if he showed proof that

he has “successfully completed treatment, been symptom free for six months, and could live independently and perform successfully.”



CUNY case Student attempted suicide and was

hospitalized following which she was barred from returning to her dorm room

$165,000 settlement and agreement by university to review and revise related policies



Generic example (Grasgreen,2011) A female international student engages in

repetitive self-cutting No support system on campus or nearby Refused to leave campus, roommate felt like she

was on suicide watch University chose not to refer to SCC to avoid her

circumstances potentially becoming more public, and sent her home until she received adequate treatment and was fit to return to campus


Mental Heath and Student Status When does a student’s mental health and behavior

constitute sufficient risk to warrant requiring them to leave campus?

What defines which student may constitute a “direct threat?” (ADA, Title II) If individual poses a “significant risk to health and safety of

others,” they may be excluded from access▪ Threat assessment based on “nature, duration, and severity of the

risk”▪ “Probability that the potential injury will actually occur,” and▪ “Whether reasonable accommodations of policies, practices, and

procedures will mitigate or eliminate the risk” March 15, 2011 – “a significant risk to the health or safety of

others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services."


Mental Health and Duty to Warn

High profile campus-related violence Tarasoff (1968) Virginia Tech (2007) Northern Illinois University (2008) University 0f Texas (2010) Oikos University, Oakland, CA (2012)

Policy implications for UCCs Texas – No Tarasoff duty

Involvement with university policy development


Personal Ethics vs. Civil Rights and Training of MHPs

What is the balance between students’ personal values and ethics and expectations of training programs and supervisors in training sites? Two recent cases highlight the tension

between individual personal values and ethical professional values


Personal Ethics vs. Civil Rights and Training of MHPs Evolution of Ward case in Michigan

Ward began Master’s degree training program in 2006; enrolled in practicum in 2009

Learned a new client who had previously been counseled was homosexual; she asked for client to be reassigned

She stated she was willing to counsel LGBT clients on any other issue than their same-sex relationship

She was subsequently requested to participate in and successfully complete a remediation plan


In 2010, both Ward and the plaintiffs sought summary judgments from the court Ward’s motion was denied and the

university’s motion was granted Ward appealed the 2010 decision

in January 2012, the U.S. 6th Circuit Court of Appeals overturned the ruling and remanded the case back to District court to proceed


Keeton vs. Anderson-Wiley (2011) Keeton, who was in a counselor training program, insisted that on

basis of her personal religious beliefs that she had the right to counsel LGBT clients that being gay is immoral

She was dismissed from the program on the basis of her failure and unwillingness to adhere to professional ethical standards of ACA

In July 2010 in U.S. District Court, she sued two faculty members from the university education counseling department as well as a university administrator “alleging that requiring her to complete the remediation plan violated her First Amendment free speech and free exercise rights”▪ Also, filed for injunction against her dismissal from university;

court dismissed request for injunction 11th circuit Court of Appeals (Dec 2011) found for the university in

that the dismissal was not based on her belief but on her unwillingness to adhere to a standard of ethics and her desire to impose her values on others


Data Management—Electronic and Cloud Storage

Risk of loss of data By loss during transport and breach of

confidentiality▪ Students-in-training, supervisees, professional staff

By loss of access ▪ Cloud storage becomes inaccessible▪ E.g., recent megaupload web site shutdown by U.S. government

and Kim Dotcom arrest

By loss of breach of confidentiality▪ Cloud storage privacy controls not set properly for security▪ Greater potential for security breach▪ Larger quantities of data may have greater likelihood of breach

Eventualities

In summary, Even prudent, ethical administrators and

practitioners can find themselves facing regulatory proceedings associated with a complaint or being named as a defendant in a civil suit

Utilizing solid ethical decision making strategies pre- and post-incident will reduce likelihood of regulatory complaints or litigation

END SLIDE

References and Resources

References and Resources Alton-Lee, A. (2006). Iterative Best Evidence Synthesis:

Strengthening Research, Policy and Practice Links to Improve Outcomes. BES 4th Annual Policy Conference: Policy Evolution, March 29, 2006. Retrieved from http://www.educationcounts. govt.nz/topics/BES/bes-journal-conference-and-oecd-papers/ Research- Policy-and-Practice-Links-2006.pdf on 03/18/2012.

Atherton J S (2011) Teaching and Learning; About this site [On-line: UK] Retrieved on 03/18/2012 from http://www.learningand teaching.info/learning/assimacc.htm

Bazelon Center for Mental Health Law. (2007). Supporting students: A model policy for colleges and universities. Retrieved 04/06/2012 from http://www.bazelon. org/ pdf/ SupportingStudents.pdf

Bush, S., Connell, M., & Denney, R. (2006). Ethical practice in forensic psychology: A systematic model for decision making. Washington, D.C.: American Psychological Association.

Bernard, J., Murphy, M., & Little, M.. (1987). The failure of clinical psychologists to apply understood ethical principles. Professional Psychology: Research and Practice, 18, 489-491.

Bernard, J. & Jara, C. (1986). The failure of clinical psychology graduate students to apply understood ethical principles. Professional Psychology: Research and Practice, 17, 313-315.

Betan, E. & Stanton, A. (1999). Fostering ethical willingness: Integrating emotional and contextual awareness with rational analysis. Professional Psychology: Research and Practice, 28, 184-189.

Devereaux, R. & Gottlieb, M. (2012). Record keeping in the cloud: Ethical considerations. (pending publication).

Grasgreen, A. (2011). Danger for whom? Inside Higher Education. Retrieved 04/14/2012 from http://www.insidehighered.com/news/2011/12/06/ocr-shift-harm-self-rules-has-student-affairs-officials-worried

Handelsman, M, Gottlieb, M. & Knapp, S. (2005). Training ethical psychologists: An acculturation model. Professional Psychology: Research and Practice, 36, 59-65.

Heur, R.J., Jr. (1999). The psychology of intelligence analysis. Center for the Study of Intelligence: Central Intelligence Agency.

Hook, P. (2007). Hardening of the categories, overassimilation, and the building of cathedrals. Retrieved 03/17/2012 from http://artichoke.typepad.com/artichoke/2007/05/ hardening _of_th.html

Knapp, S. & VandeCreek, L. (2009). Practical ethics for psychologists: A positive approach. Washington, D.C.: American Psychological Association.

Keeton v. Anderson-Wiley, et al. (2011). Appeal from the U.S. court for the southern district of Georgia. Retrieved o4/06/2012 from http://www.ca11.uscourts.gov/opinions/ ops/ 201013925.pdf

References and Resources

Technical Assistance Manual. (ND). Americans with disabilities act: Title II technical assistance manual. Retrieved 04/14/2012 from http://www.ada.gov/ taman2.html

Texas Office of Attorney General. (1997). Opinion no. DM-458.Texas Office of Attorney General. (1997). Letter of request RQ-944Texas Family Code. (2012). Chapter 261, investigation of report of child abuse

or neglect. Retrieved 04/10/2012 from http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.261.htm

U.S. v. University of Nebraska at Kearney. (2011). Complaint and request for jury trial. Retrieved o4/06/2012 from http://www.justice.gov/crt/about/hce/ documents/unkcomp.pdf

Ward vs. Wilbanks et al. (2010). Opinion and order granting summary judgment. Retrieved 04/06/2012 from http://www.annarbor.com/Ward%20v.EMU%20 Summary%20Judgment%20Opinion%5B1%5D.pdf

Ward vs. Polite, et al. (2012). Opinion and order reversing summary judgment and remanding to district court for further proceedings. Retrieved 04/06/2012 from http://www.ca6.uscourts.gov/ opinions.pdf/12a0024p-06.pdf

Documents

Texas University and College Counseling Directors Association Conference April 19, 2012