Ivan Perkins, JD

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Nontraditional Modalities of Psychotherapy and the Standard of Care

Posted by Ivan Perkins, JD

October 23, 2017 at 11:59 AM

 

bigstock-Law-book-with-wooden-judges-ga-117942812

Are all modalities of psychotherapy equal under the law?

Well, not exactly. The general “standard of care” is the reasonable care that would be taken, under the circumstances, by a practitioner trained and experienced in the particular school of therapy being practiced—as long as that school of therapy is recognized by a “respectable minority” within the profession.

If the school of therapy does not even have a “respectable minority” behind it, you are truly going out on a legal-ethical limb. This also goes for one-time interventions—for example, giving a “far out” homework assignment like telling a client to go skinny-dipping or attend a shamanic ritual. Just recognize that in the event of a lawsuit or board complaint, your treatment might be deemed below the standard of care.

But even for those therapeutic modalities supported by a “respectable minority,” you incur greater risk to the extent they are outside the mainstream. Non-traditional therapies include, for example, aromatherapy, light therapy, and animal-assisted therapy. The solution, other than avoiding non-traditional modalities, is to consult with a colleague, document the consultation, and document the client’s fully informed consent. We address informed consent in depth in our CE Course: Minimizing Legal-Ethical Risk in Psychotherapy, which provides a template informed consent form.

What should this documentation look like? Consider the arguments you would need to make, later on, if anyone alleged that your treatment was negligent. The documentation should support these arguments:

  1. you carefully considered the use of this modality for this particular client;
  2. you consulted with a capable and qualified colleague;
  3. you and the colleague reasonably believed the modality would not entail serious or undue risks for this client;
  4. you and the colleague reasonably believed the modality could benefit this client; and
  5. you fully explained the risks, limitations, benefits, and potential alternatives to the client, who voluntarily consented to this treatment.

Don’t be afraid to use this particular language in your notes, while fleshing them out in concrete detail. For example, specify why you think the modality does not entail serious risks, who your colleague is, and why you consulted with him or her.

The more “non-traditional” the therapy you are considering, the more it makes sense to provide an abundance of information, such as books or websites on the topic. You may also ask the client to sign a confirmation sheet that you have provided extensive information, they understand the nature of the treatment, and they are comfortable with the techniques you will use. This will show that their consent to treatment was truly “informed.” You could include all this information on your standard informed consent form.

Also, review your malpractice policy—and/or contact the insurer or an insurance agent—to find out if a particular treatment modality is covered. Insurance policies contain exclusions, and you want to avoid, if possible, a mismatch between your policy and your practice. See our guide to malpractice insurance contained within our CE Course: Minimizing Legal-Ethical Risk in Psychotherapy.

If you purchase any of our CE courses during the month of October, you'll receive a special introductory discount of 20% off! Just enter CEBLOG20 in the coupon code box at checkout. This code can be used one time per user. This offer will only last through October 31st, though, so act now for a great discount! You will have access to the courses for a year!

Sign up for a CE Course  TODAY!

 

 

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Topics: Professional Development, Continuing Education

Providing Psychotherapy or Counseling to a Minor in California

Posted by Ivan Perkins, JD

October 16, 2017 at 11:59 AM

bigstock--207902956.jpgWhat if a teenager shows up at your office or clinic? What if she is willing and able to pay for counseling on her own? Can you just start treating her? How does this work in California?

If she is 18 or over, there is no problem. As an adult, she may consent to treatment purely on her own, just like someone in her 20s or beyond.

If she is 17 or younger—i.e., if she is a “minor”—precise rules apply. Parents or guardians can always provide effective consent for treating a minor, but many minors can also consent to treatment on their own.

Minors Consenting to Their Own Treatment

In California, you can treat 12-year-olds who simply show up at your office. The rule is: “a minor who is 12 years of age or older may consent to mental health treatment or counseling services if, in the opinion of the attending professional person, the minor is mature enough to participate intelligently in the mental health treatment or counseling services.” (Cal. Health & Safety Code § 124260(b).) This rule applies only to outpatient mental health treatment or counseling.

This law, however, does not appear to apply to any trainees, or to Associate Clinical Social Workers (ACSWs), although it does apply to Marriage and Family Therapist and Professional Clinical Counselor interns/associates, as well as to Licensed Educational Psychologists. Therefore, it remains unclear whether a minor could consent to treatment, on her own, with a trainee or ACSW. Given the uncertainty on this point, it is probably best to avoid such treatment until the legislature provides clarity.

If a minor shows up on his or her own to outpatient mental health treatment, document exactly why you think this minor is “mature enough to participate intelligently” in the treatment you are providing. During the informed consent process, you may need to explain more carefully, and in language that the minor can understand, how your treatment works. Also, in the case of someone who is 12-14 years at the oldest, it is best to verify his or her age, and document such verification. You don’t want to find out later that the child was only 10 or 11.

Involving Parents

Even if the minor herself can consent, California law still requires “involvement of the minor’s parent or guardian” in the minor’s treatment—UNLESS you, after consulting with the minor, determine that such involvement would be “inappropriate.”

You are explicitly required to document, in your notes, either of the following two things:

  1. The reason why, in your opinion, it would be inappropriate to contact the minor’s parent or guardian; or
  2. Whether and when you attempted to contact the minor’s parent or guardian, and whether the attempt to contact was successful or unsuccessful.

There is a financial kicker to this rule. You cannot hold a parent or guardian responsible for any fees incurred, unless the fees involve services rendered “with the participation” of that parent or guardian. Make sure your young client is paying as she goes, or you may never collect.

If any psychiatrists and neurosurgeons are reading this, please note that a minor cannot receive psychotropic drugs, convulsive therapy, or psychosurgery on their own consent.

Also, even if a minor could consent on their own, a parent or guardian can also provide the necessary consent—and sign an informed consent form—on that child’s behalf. In this case, however, only the minor has the right to access his or her treatment records or authorize other disclosures. See our second CEU, Confidentiality and Client Access to Records, for more on this issue. 

Summing up

The four bottom lines in California:

  • You can treat 12-year-olds who can participate intelligently;
  • You still have to involve parents unless you deem it “inappropriate” in a particular case;
  • Document the inappropriateness or your efforts to contact parents; and
  • When a parent consents, a minor who could consent holds the keys to her records and treatment information.

As a California therapist, there are a number of legal concerns for you in this area. These range from steering clear of custody battles to obtaining consent from other relatives. You can find detailed guidance in our third CEU, Managing Your Practice under California Law. 

If you purchase any of our CE courses during the month of October, you'll receive a special introductory discount of 20% off! Just enter CEBLOG20 in the coupon code box at checkout. This code can be used one time per user. This offer will only last through October 31st, though, so act now for a great discount! You will have access to the courses for a year!

 

Sign up for a CE Course  TODAY!

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Topics: Professional Development

The Black Hole of Confidentiality

Posted by Ivan Perkins, JD

October 9, 2017 at 11:36 AM

Imagine that you see a psychiatrist for many years. During your sessions, you lower inhibitions and open mental floodgates. You explore how you really feel about people in your life. You delve into things you find shocking, embarrassing, and disturbing.

You end treatment. Eight years pass. Suddenly, you find that your former psychiatrist is publishing a book—and much of it presents your intimate case history! The book does not name you, but it is loaded with details, including your profession, the university where you work, and other telling clues. These make it clear to people in your social and professional circles that you are the client.

The book broadcasts your secrets, obsessions, and fantasies verbatim, and diagnoses your mental illnesses. Your friends, colleagues, and students read it with prurient interest. Your professional standing and livelihood are threatened. Humiliated, you retreat into isolation.

This was a real case, Doe v. Roe, brought by a client in New York during the 1970s. (Doe v. Roe, 93 Misc.2d 201 (N.Y. Sup. Ct. 1977).) There was established legal theory in New York at the time on this issue, but the judge had no problem finding a new cause of action based upon scattered precedents, medical principles dating from the time of Hippocrates, and his own palpable outrage. The judge accepted that the defendants thought they had concealed the plaintiff’s identity—which barred him from ordering punitive damages—and the judge called their actions “merely stupid.”

The defendants’ hopes of publishing an influential book were dashed. The judge awarded monetary damages to the plaintiff, and ordered a permanent injunction against any further circulation of the book beyond the 220 copies already sold.

Obviously, protecting confidentiality in psychotherapy is a big deal. The law certainly views it as such.

It’s time for a space metaphor.

In astrophysics, a black hole is a region with overwhelming gravity. Once an object passes the black hole’s “event horizon,” it can never return to the universe outside. It will gradually accelerate towards the center, a point of infinite density. Light itself cannot escape. To a distant observer, the black hole appears as a blank circle in space. Objects, energy, and information fall in—but they never come out again.

Most clients probably hope that their therapist is something like a black hole. It is nice to imagine that words uttered in therapy remain forever contained within the therapist’s office. But this is inaccurate. For example, therapists may update insurance companies on a client’s progress, send an email to the wrong person, or get hacked.

The law itself may require disclosures. Over the last fifty years, state laws have increasingly required therapists to break confidentiality and tell other people about dangerous and worrisome situations.

Every state now requires therapists to report suspected child abuse. Therapists must protect actively suicidal clients, which can include involving the client’s family or friends, or even calling a crisis team. If a therapist learns about an imminent threat of violent harm to a specific person, they may be required to warn the potential victim and take other preventive steps.

These releases of information are sort of like “Hawking radiation” coming from a black hole. Scientists used to think that nothing came out of a black hole, ever. But as Stephen Hawking showed, when particle-antiparticle pairs pop into existence just inside a black hole’s event horizon, one particle will speed toward the center, as the other escapes into the outside universe. In this way, black holes emit some mass and energy, though this is often dwarfed by the stars, planets, and space debris they swallow.

Likewise, therapists sometimes have to disclose precise bits of information about their clients. Also, there are some situations where disclosures are inevitable; by sitting in your waiting room, clients disclose the fact that they are seeing a therapist to each other.

In all of these areas, the law is growing increasingly stringent and precise. Some laws seek to protect clients’ privacy, while others dictate that privacy must give way to other goals, such as preventing abuse, suicide, and murder. Confidentiality and access to records are among the most contentious and litigated issues in psychotherapy.

This is why we paid close attention to confidentiality when we designed our system of three law and ethics CEUs for therapists and social workers. CEU No. 2, Confidentiality and Client Access to Records, focuses on both aspects of confidentiality: the duties to protect privacy in various situations, and the laws mandating or allowing an occasional release of therapeutic information. (This CEU comes in two versions: one for “covered entities” under HIPAA, and one for the more-fortunate among you!)

Happily, you do not need to be a quantum physicist or Stephen Hawking to master the laws of psychotherapeutic confidentiality. You just need to take CEU No. 2, incorporate the rules into your practice, and use our model forms.

For an overview of your confidentiality rules, see the graphic below. It shows all the situations where you must or may break confidentiality and emit some client information. (This version is for California therapists who are covered by HIPAA.)

 

Infographic #1b (HIPAA-Cal. Conf. Excepts)

 

If you purchase any of our CE courses during the month of October, you'll receive a special introductory discount of 20% off! Just enter CEBLOG20 in the coupon code box at checkout. This code can be used one time per user. This offer will only last through October 31st, though, so act now for a great discount! You will have access to the courses for a year! 

Sign up for a CE Course  TODAY!

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Topics: Professional Development

Law & Ethics CEs for Therapists and Social Workers: The “Two Birds” Concept

Posted by Ivan Perkins, JD

October 3, 2017 at 3:04 PM

bigstock--178496554.jpgLaw is challenging.

This includes health care law, and within that, the law of psychotherapy. There are a zillion rules, as well as ethical principles that should inform your every move.

For most challenging systems we confront, we expect a guide. We look for a user-friendly manual, maybe with some online videos to walk us through every step.

But with psychotherapy law, we at Therapist Development Center noticed something unusual. There was no guide. The leading contenders—law and ethics CEs, for example, or book-length treatises—do not even attempt to provide a comprehensive guidance system.

Existing CEs, we found, generally offer a scattered assortment of rules and ethical principles. So with each course, you might get a few important concepts, but nothing puts it all together into a single user’s manual.

Book-length treatises also failed to provide a guide. These are generally written for a national audience, but psychotherapists and social workers are regulated by the states. So for the most part, the treatises cannot tell you the specific rules that apply to a practicing therapist or social worker. (And the few existing state-specific resources leave out crucial things like HIPAA, clinical documentation, and strategies for avoiding lawsuits and dealing with potential claims.)

And none of these, we saw, boiled down complicated state and federal rules into easy-to-use model forms.

So we thought: “What if we gave therapists and social workers a user’s manual, complete with lawyer-crafted model forms, and tailored to their states, to make it as easy as possible for them to follow the complicated rules of their profession?”

And we also thought: “What if this manual took the form of Continuing Education courses, which they have to take anyway?”

And that’s how our Law & Ethics CEs were born. We aim to make legal and ethical compliance as quick and easy as humanly possible. And you get your CE credits at the same time. That is our “two birds” concept.

We created a system of three interlocking CEs. Here’s how it works. You can take the three CEs in any order. You can take them all at once or spread them over two or three compliance periods.

Our CEs are:

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CE No. 1 - Minimizing Legal-Ethical Risk in Psychotherapy

This CE course provides foundational background material on the standard of care in various areas of psychotherapy. These do not vary from state to state. This course includes things like a model informed consent form, guides to clinical documentation and minimizing risk in the context of potential suicide or violence, a model professional will, a discussion of what to do and not do if you get into legal trouble, and a lesson on buying the right malpractice insurance. 6 CE credits.

CE No. 2 - Confidentiality and Client Access to Records

For this course, you will select just one of the following two courses, each of which is tailored to the law of your particular state. Before selecting, you will need to determine whether you are covered by HIPAA or are otherwise deciding to comply with that law. (Click on the Are You Covered by HIPAA? discussion available on the web page where you found this CE course.)

CE No. 3 - Managing Your Practice under the Law

This CE brings your practice into compliance with all remaining state laws and regulations not addressed in CE No. 2. It addresses topics such as advertising, consent for treatment of a minor, fees, supervision, technology, and telehealth. 3 CE credits.

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Everyone can take CE No. 1, as that applies nationwide. Currently, the only state we have for CE Nos. 2 and 3 is California. But if you practice outside of California, please know that we are expanding our geographic reach, and we are planning to get to you. Check back in a year or two.

On using these CEs, we have the following recommendations:

Take all three of our CEs at once, during a single compliance period. Listen to the audio versions, pause whenever you need, and tailor our model forms. Print out the CEs for ready reference, so you can look anything up when a question arises, and quickly find what you need.

The law is always changing, and we update our CEs accordingly. Every couple of years, retake at least one of these three CEs to update your compliance and forms (and reinforce what you learned before), and obtain your needed law and ethics CE credits.

If you purchase any of these courses in October, you'll receive a special introductory discount of 20% off. Just enter CEBLOG20 in the coupon code box at checkout. This code can be used one time per user. This offer will only last through October 31st, though, so act now for a great discount! You will have access to the courses for a year!

And who are “we” anyway?

My name is Ivan Perkins, and I’m a health care lawyer in Santa Monica, California. I help therapists understand and comply with the complex rules of their profession. For a number of years, I have been researching and writing these CEs. By the way, reading this blog or taking these CEs does not make me your lawyer. But I could be, if you reach out to me at ivanperkinslaw.com or email me at [email protected] and we establish an attorney-client relationship.

To produce these CEs, I am also working with Amanda Rowan and other strong, talented therapists at Therapist Development Center or TDC. Amanda is the inspiration for these CEs. She saw a need for a legal course for psychotherapists which would provide an approachable, user-friendly guidance system complete with model forms.

Please let us know if you see any way for us to improve these CEs. Feel free to email me at [email protected]. If we use your suggestion, I will try to credit you (alas, probably just in a footnote) within the next iteration of the CEs.

We look forward to working with you!

Sign up for a CE Course  TODAY!

 

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