Michigan LPC Legal and Ethical Issues in Clinical Supervision
Guedde
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May 19, 2018
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About This Presentation
This is the lecture from Day 4 of the 30 hour clinical supervision workshop developed specifically for the Michigan LPC.
Slide Content
Copyright © 2018, Advanced Counselor Training Do not reproduce any workshop materials without express written consent.
Ethical and Legal Considerations
in Clinical Supervision
Glenn Duncan LPC, LCADC, CCS,
ACS
Ethical and Legal Considerations
in Clinical Supervision
Glenn Duncan LPC, LCADC, CCS,
ACS
Why have legal and ethical standards?
One of the main purposes of the courts
is to determine innocence or guilt.
One of the main purposes of Federal
and State laws and statutes, licensure
regulations, professional standards,
and sound personal judgment is
to keep you out of court.
One of the main purposes of the courts
is to determine innocence or guilt.
One of the main purposes of Federal
and State laws and statutes, licensure
regulations, professional standards,
and sound personal judgment is
to keep you out of court.
Michigan Definitions - Counseling
333.18101 Definitions.
a)“Counseling principles, methods, or procedures” means a
developmental approach that systematically assists an individual
through the application of any of the following procedures:
i.Evaluation and appraisal techniques. As used in this
subparagraph, “appraisal techniques” means selecting,
administering, scoring, and interpreting instruments and
procedures designed to assess an individual's aptitudes,
interests, attitudes, abilities, achievements, and personal
characteristics for developmental purposes and not for
psychodiagnostic purposes.
333.18101 Definitions.
a)“Counseling principles, methods, or procedures” means a
developmental approach that systematically assists an individual
through the application of any of the following procedures:
i.Evaluation and appraisal techniques. As used in this
subparagraph, “appraisal techniques” means selecting,
administering, scoring, and interpreting instruments and
procedures designed to assess an individual's aptitudes,
interests, attitudes, abilities, achievements, and personal
characteristics for developmental purposes and not for
psychodiagnostic purposes.
Michigan Definitions - Counseling
d)“Practice of counseling” or “counseling” means the rendering to
individuals, groups, families, organizations, or the general public a
service involving the application of clinical counseling principles,
methods, or procedures for the purpose of achieving social,
personal, career, and emotional development and with the goal of
promoting and enhancing healthy self actualizing and satisfying
lifestyles whether the services are rendered in an educational,
business, health, private practice, or human services setting.
d)The practice of counseling does not include the practice of
psychology except for those preventive techniques, counseling
techniques, or behavior modification techniques for which the
licensed professional counselor or limited licensed counselor has
been specifically trained.
d)“Practice of counseling” or “counseling” means the rendering to
individuals, groups, families, organizations, or the general public a
service involving the application of clinical counseling principles,
methods, or procedures for the purpose of achieving social,
personal, career, and emotional development and with the goal of
promoting and enhancing healthy self actualizing and satisfying
lifestyles whether the services are rendered in an educational,
business, health, private practice, or human services setting.
d)The practice of counseling does not include the practice of
psychology except for those preventive techniques, counseling
techniques, or behavior modification techniques for which the
licensed professional counselor or limited licensed counselor has
been specifically trained.
Michigan Definitions – Counseling redux
R 338.1751 Definitions.
Rule 1. As used in these rules:
e)"Counseling philosophy” means studies that incorporate a belief
system that a person can change or develop a more fully
functioning self through the application of various counseling
approaches regardless of the extent of the problem.
f)"Counseling techniques" means the application of counseling and
psychotherapy skills and theories in the counseling process in order
to do all of the following:
i.Establish and maintain the counseling relationship.
ii.Diagnose and identify the problem.
iii.Formulate a preventive, treatment, or rehabilitative plan.
iv.Facilitate appropriate interventions.
R 338.1751 Definitions.
Rule 1. As used in these rules:
e)"Counseling philosophy” means studies that incorporate a belief
system that a person can change or develop a more fully
functioning self through the application of various counseling
approaches regardless of the extent of the problem.
f)"Counseling techniques" means the application of counseling and
psychotherapy skills and theories in the counseling process in order
to do all of the following:
i.Establish and maintain the counseling relationship.
ii.Diagnose and identify the problem.
iii.Formulate a preventive, treatment, or rehabilitative plan.
iv.Facilitate appropriate interventions.
Michigan Definitions – Counseling Part 3?
MEDICAL RECORDS ACCESS ACT (EXCERPT) 333.26263 Definitions.
e."Health care provider" means a person who is licensed or registered
or otherwise authorized under article 15 of the public health code, 1978
PA 368, MCL 333.16101 to 333.18838,
The Michigan Public Health Code for Counseling are sections
333.1801 – 333.1817 which falls between 333.16101 and 333.18838
e.to provide health care in the ordinary course of business or practice of
a health profession. Health care provider does not include a person
who provides health care solely through the sale or dispensing of
drugs or medical devices or a psychiatrist, psychologist, social worker,
or professional counselor who provides only mental health services.
MEDICAL RECORDS ACCESS ACT (EXCERPT) 333.26263 Definitions.
e."Health care provider" means a person who is licensed or registered
or otherwise authorized under article 15 of the public health code, 1978
PA 368, MCL 333.16101 to 333.18838,
The Michigan Public Health Code for Counseling are sections
333.1801 – 333.1817 which falls between 333.16101 and 333.18838
e.to provide health care in the ordinary course of business or practice of
a health profession. Health care provider does not include a person
who provides health care solely through the sale or dispensing of
drugs or medical devices or a psychiatrist, psychologist, social worker,
or professional counselor who provides only mental health services.
Michigan Definitions
R 338.1751 Definitions.
Rule 1. As used in these rules:
(m) "Professional ethics" means studies that prepare students to
understand and apply the legal requirements and ethical codes
related to the practice of counseling.
(r) "Under the supervision of a licensed professional counselor"
means under the ongoing supervision of a licensed professional
counselor licensed in this state who meets the requirements of a
supervisor or under the ongoing supervision of an individual in
another state who substantially meets the requirements for a
professional counselor license and counseling supervisor in this
state.
R 338.1751 Definitions.
Rule 1. As used in these rules:
(m) "Professional ethics" means studies that prepare students to
understand and apply the legal requirements and ethical codes
related to the practice of counseling.
(r) "Under the supervision of a licensed professional counselor"
means under the ongoing supervision of a licensed professional
counselor licensed in this state who meets the requirements of a
supervisor or under the ongoing supervision of an individual in
another state who substantially meets the requirements for a
professional counselor license and counseling supervisor in this
state.
Michigan “at will” status
In Michigan, many employees are considered
"at-will" employees.
"At-will" employment means your employer may
terminate your employment for many reasons
that may be considered wrong or incorrect as
long as those reasons do not violate the law.
In Michigan, many employees are considered
"at-will" employees.
"At-will" employment means your employer may
terminate your employment for many reasons
that may be considered wrong or incorrect as
long as those reasons do not violate the law.
Major Legal Issues For Clinical
Supervisors
Malpractice
Harm to another individual due to negligence consisting of the
breach of a professional duty or standard of care.
When you take the role of supervisor, you are expected to know
and follow the law, as well as the profession’s ethical standards.
Supervisors
Malpractice
Harm to another individual due to negligence consisting of the
breach of a professional duty or standard of care.
When you take the role of supervisor, you are expected to know
and follow the law, as well as the profession’s ethical standards.
Increase in Lawsuits?
A general decline in the respect afforded helping professionals by
clients and society at large.
Increased awareness of consumer rights in general.
Highly publicized malpractice suits where settlements were
enormous, leading to the conclusion that a lawsuit may be a means
to obtain easy money.
A general decline in the respect afforded helping professionals by
clients and society at large.
Increased awareness of consumer rights in general.
Highly publicized malpractice suits where settlements were
enormous, leading to the conclusion that a lawsuit may be a means
to obtain easy money.
What is needed to prove Malpractice?
A professional relationship with the therapist (or supervisor) must
have been established.
The therapist’s (or supervisor’s) conduct must have been improper
or negligent and have fallen below the acceptable standard of care.
The client (or supervisee) must have suffered harm or injury, which
must be demonstrated.
A causal relationship must be established between the injury and
the negligence or improper conduct.
A professional relationship with the therapist (or supervisor) must
have been established.
The therapist’s (or supervisor’s) conduct must have been improper
or negligent and have fallen below the acceptable standard of care.
The client (or supervisee) must have suffered harm or injury, which
must be demonstrated.
A causal relationship must be established between the injury and
the negligence or improper conduct.
How to Reduce Legal Liability
One of the most important things a supervisor can do to reduce the
risk of a charge of negligence is to screen prospective employees
carefully.
In addition to information on academic credentials and work
experience, it is important to know if their present skill level is
consistent with the expectations of the supervisor.
Supervisors scrupulously should follow the regulations of their
respective accrediting board (e.g., Psychologists, Social Workers,
Professional Counselors, CAADACs) regarding supervision.
They should check with their malpractice carrier to be certain that
their supervisory functions are covered. It also may be prudent to
require the supervisee to carry his or her own professional liability
insurance.
One of the most important things a supervisor can do to reduce the
risk of a charge of negligence is to screen prospective employees
carefully.
In addition to information on academic credentials and work
experience, it is important to know if their present skill level is
consistent with the expectations of the supervisor.
Supervisors scrupulously should follow the regulations of their
respective accrediting board (e.g., Psychologists, Social Workers,
Professional Counselors, CAADACs) regarding supervision.
They should check with their malpractice carrier to be certain that
their supervisory functions are covered. It also may be prudent to
require the supervisee to carry his or her own professional liability
insurance.
How to Reduce Legal Liability
Supervisors should take whatever actions are necessary to ensure the
quality of services delivered to the patient.
The extent of the monitoring will depend on several factors, including the
skill level of the supervisee, the type of services being performed, and the
direct knowledge of the supervisor of the skill of the supervisee.
As noted above, the minimal supervisory requirements for clinicians-in-
training are more specific than those for other unlicensed employees.
Supervisors would be liable if they assigned a patient to a supervisee
who did not have the skill level to provide adequate services.
Finally, supervisors must document all supervisory sessions in a manner
consistent with established record-keeping rules and requirements.
Supervisors should take whatever actions are necessary to ensure the
quality of services delivered to the patient.
The extent of the monitoring will depend on several factors, including the
skill level of the supervisee, the type of services being performed, and the
direct knowledge of the supervisor of the skill of the supervisee.
As noted above, the minimal supervisory requirements for clinicians-in-
training are more specific than those for other unlicensed employees.
Supervisors would be liable if they assigned a patient to a supervisee
who did not have the skill level to provide adequate services.
Finally, supervisors must document all supervisory sessions in a manner
consistent with established record-keeping rules and requirements.
The Duty to Warn and Protect
Case Name: Vitaly TARASOFF v. REGENTS OF UNIV OF CA .,
et. al. Date, Location, Cite: 1976 CA. 131 Cal Rptr 14, 551 p2d
334.
CA Supreme Court: Prosenjit Poddar told student health he
wanted to kill Tatiana Tarasoff. Psychologist told supervising
psychiatrist, who told campus police, who checked & let Poddar
go.
Poddar killed Tatiana. Parents sued for "failure to warn"- Trial
Court said no duty existed, but CA Supreme Court cited
Simenson v Swensen, ordered trial; heard twice, settled out:
“Tarasoff #1” -"Privilege ends where public peril begins."
“Tarasoff #2” - Therapist has an obligation to use reasonable
care to protect potential victim.
SUPER LAND MARK - created whole new cause for action, but
based on Simenson v Swensen because settled out of court.
Case Name: Vitaly TARASOFF v. REGENTS OF UNIV OF CA .,
et. al. Date, Location, Cite: 1976 CA. 131 Cal Rptr 14, 551 p2d
334.
CA Supreme Court: Prosenjit Poddar told student health he
wanted to kill Tatiana Tarasoff. Psychologist told supervising
psychiatrist, who told campus police, who checked & let Poddar
go.
Poddar killed Tatiana. Parents sued for "failure to warn"- Trial
Court said no duty existed, but CA Supreme Court cited
Simenson v Swensen, ordered trial; heard twice, settled out:
“Tarasoff #1” -"Privilege ends where public peril begins."
“Tarasoff #2” - Therapist has an obligation to use reasonable
care to protect potential victim.
SUPER LAND MARK - created whole new cause for action, but
based on Simenson v Swensen because settled out of court.
The Duty to Warn and Protect
1975 “Tarasoff #1” -"Privilege ends where public peril begins."
1976 “Tarasoff #2” - "When a therapist determines, or pursuant
to the standards of his profession should determine, that his [client]
presents a serious danger of violence to another, he incurs an
obligation to use reasonable care to protect the intended victim
against such danger. The discharge of this duty may require the
therapist to take one or more various steps, depending upon the
nature of the case. Thus it may call for him to warn the intended
victim or others likely to apprise the victim of the danger, to notify
the police, or to take whatever other steps are reasonably
necessary under the circumstances."
SUPER LAND MARK - created whole new cause for action, but
based on Simenson v Swensen because settled out of court.
1975 “Tarasoff #1” -"Privilege ends where public peril begins."
1976 “Tarasoff #2” - "When a therapist determines, or pursuant
to the standards of his profession should determine, that his [client]
presents a serious danger of violence to another, he incurs an
obligation to use reasonable care to protect the intended victim
against such danger. The discharge of this duty may require the
therapist to take one or more various steps, depending upon the
nature of the case. Thus it may call for him to warn the intended
victim or others likely to apprise the victim of the danger, to notify
the police, or to take whatever other steps are reasonably
necessary under the circumstances."
SUPER LAND MARK - created whole new cause for action, but
based on Simenson v Swensen because settled out of court.
Duty to Warn and Protect US Map
Michigan Duty to Warn & Protect Law
330.1946 Threat of physical violence against third person;
duties.
Sec. 946.
1.If a patient communicates to a mental health professional who is treating
the patient a threat of physical violence against a reasonably identifiable
third person and the recipient has the apparent intent and ability to carry
out that threat in the foreseeable future, the mental health professional has
a duty to take action as prescribed in subsection (2). Except as provided in
this section, a mental health professional does not have a duty to warn a
third person of a threat as described in this subsection or to protect the
third person.
330.1946 Threat of physical violence against third person;
duties.
Sec. 946.
1.If a patient communicates to a mental health professional who is treating
the patient a threat of physical violence against a reasonably identifiable
third person and the recipient has the apparent intent and ability to carry
out that threat in the foreseeable future, the mental health professional has
a duty to take action as prescribed in subsection (2). Except as provided in
this section, a mental health professional does not have a duty to warn a
third person of a threat as described in this subsection or to protect the
third person.
Michigan Duty to Warn & Protect Law
330.1946 Threat of physical violence against third person; duties.
2.A mental health professional has discharged the duty created under subsection (1)
if the mental health professional, subsequent to the threat, does 1 or more of the
following in a timely manner:
a.Hospitalizes the patient or initiates proceedings to hospitalize the patient under
chapter 4 or 4a.
b.Makes a reasonable attempt to communicate the threat to the third person and
communicates the threat to the local police department or county sheriff for the
area where the third person resides or for the area where the patient resides,
or to the state police.
c.If the mental health professional has reason to believe that the third person
who is threatened is a minor or is incompetent by other than age, takes the
steps set forth in subdivision (b) and communicates the threat to the
department of social services in the county where the minor resides and to the
third person's custodial parent, noncustodial parent, or legal guardian, whoever
is appropriate in the best interests of the third person.
330.1946 Threat of physical violence against third person; duties.
2.A mental health professional has discharged the duty created under subsection (1)
if the mental health professional, subsequent to the threat, does 1 or more of the
following in a timely manner:
a.Hospitalizes the patient or initiates proceedings to hospitalize the patient under
chapter 4 or 4a.
b.Makes a reasonable attempt to communicate the threat to the third person and
communicates the threat to the local police department or county sheriff for the
area where the third person resides or for the area where the patient resides,
or to the state police.
c.If the mental health professional has reason to believe that the third person
who is threatened is a minor or is incompetent by other than age, takes the
steps set forth in subdivision (b) and communicates the threat to the
department of social services in the county where the minor resides and to the
third person's custodial parent, noncustodial parent, or legal guardian, whoever
is appropriate in the best interests of the third person.
Michigan Duty to Warn & Protect Law
330.1946 Threat of physical violence against third person; duties.
Sec. 946.
3.If a patient described in subsection (1) is being treated through team treatment in a
hospital, and if the individual in charge of the patient's treatment decides to
discharge the duty created in subsection (1) by a means described in subsection (2)
(b) or (c), the hospital shall designate an individual to communicate the threat to the
necessary persons.
4.A licensed professional counselor who determines in good faith that a particular
situation presents a duty under this section and who complies with the duty does
not violate section 18117 of the public health code, Act No. 368 of the Public Acts of
1978, being section (333.18117 Privileged communications; disclosure of
confidential information) of the Michigan Compiled Laws.
5.This section does not affect a duty a mental health professional may have under
any other section of law.
330.1946 Threat of physical violence against third person; duties.
Sec. 946.
3.If a patient described in subsection (1) is being treated through team treatment in a
hospital, and if the individual in charge of the patient's treatment decides to
discharge the duty created in subsection (1) by a means described in subsection (2)
(b) or (c), the hospital shall designate an individual to communicate the threat to the
necessary persons.
4.A licensed professional counselor who determines in good faith that a particular
situation presents a duty under this section and who complies with the duty does
not violate section 18117 of the public health code, Act No. 368 of the Public Acts of
1978, being section (333.18117 Privileged communications; disclosure of
confidential information) of the Michigan Compiled Laws.
5.This section does not affect a duty a mental health professional may have under
any other section of law.
42-CFR-Part 2 – Exceptions to
Confidentiality
§ 2.22 Notice to patients of Federal confidentiality requirements.
The confidentiality of alcohol and drug abuse patient records maintained by this program is
protected by Federal law and regulations. Generally, the program may not say to a person
outside the program that a patient attends the program, or disclose any information
identifying a patient as an alcohol or drug abuser Unless:
(1) The patient consents in writing:
(2) The disclosure is allowed by a court order; or
(3) The disclosure is made to medical personnel in a medical emergency or to qualified
personnel for research, audit, or program evaluation.
Violation of the Federal law and regulations by a program is a crime. Suspected violations
may be reported to appropriate authorities in accordance with Federal regulations.
Violation of the Federal law and regulations by a program is a crime. Suspected violations
may be reported to appropriate authorities in accordance with Federal regulations. Federal
law and regulations do not protect any information about a crime committed by a patient
either at the program or against any person who works for the program or about any threat
to commit such a crime. Federal laws and regulations do not protect any information about
suspected child abuse or neglect from being reported under State law to appropriate State
or local authorities.
Confidentiality
§ 2.22 Notice to patients of Federal confidentiality requirements.
The confidentiality of alcohol and drug abuse patient records maintained by this program is
protected by Federal law and regulations. Generally, the program may not say to a person
outside the program that a patient attends the program, or disclose any information
identifying a patient as an alcohol or drug abuser Unless:
(1) The patient consents in writing:
(2) The disclosure is allowed by a court order; or
(3) The disclosure is made to medical personnel in a medical emergency or to qualified
personnel for research, audit, or program evaluation.
Violation of the Federal law and regulations by a program is a crime. Suspected violations
may be reported to appropriate authorities in accordance with Federal regulations.
Violation of the Federal law and regulations by a program is a crime. Suspected violations
may be reported to appropriate authorities in accordance with Federal regulations. Federal
law and regulations do not protect any information about a crime committed by a patient
either at the program or against any person who works for the program or about any threat
to commit such a crime. Federal laws and regulations do not protect any information about
suspected child abuse or neglect from being reported under State law to appropriate State
or local authorities.
42-CFR-Part 2 – Exceptions to
Confidentiality
§ 2.22 Notice to patients of Federal confidentiality
requirements.
Federal law and regulations do not protect any information about a crime
committed by a patient either at the program or against any person who
works for the program or about any threat to commit such a crime. Federal
laws and regulations do not protect any information about suspected child
abuse or neglect from being reported under State law to appropriate State
or local authorities.
§ 2.14 Minor patients (d)(2) The applicant's situation poses a
substantial threat to the life or physical well being of the applicant or any
other individual which may be reduced by communicating relevant facts to
the minor's parent, guardian, or other person authorized under State law to
act in the minor's behalf.
Confidentiality
§ 2.22 Notice to patients of Federal confidentiality
requirements.
Federal law and regulations do not protect any information about a crime
committed by a patient either at the program or against any person who
works for the program or about any threat to commit such a crime. Federal
laws and regulations do not protect any information about suspected child
abuse or neglect from being reported under State law to appropriate State
or local authorities.
§ 2.14 Minor patients (d)(2) The applicant's situation poses a
substantial threat to the life or physical well being of the applicant or any
other individual which may be reduced by communicating relevant facts to
the minor's parent, guardian, or other person authorized under State law to
act in the minor's behalf.
42-CFR-Part 2 – Exceptions to
Confidentiality
§ 2.63 Confidential communications.
(a) A court order under these regulations may authorize disclosure of
confidential communications made by a patient to a program in the course
of diagnosis, treatment, or referral for treatment only if:
(1) The disclosure is necessary to protect against an existing threat to life or
of serious bodily injury, including circumstances which constitute suspected
child abuse and neglect and verbal threats against third parties;
(2) The disclosure is necessary in connection with investigation or
prosecution of an extremely serious crime, such as one which directly
threatens loss of life or serious bodily injury, including homicide, rape,
kidnapping, armed robbery, assault with a deadly weapon, or child abuse
and neglect; or
(3) The disclosure is in connection with litigation or an administrative
proceeding in which the patient offers testimony or other evidence
pertaining to the content of the confidential communications.
Confidentiality
§ 2.63 Confidential communications.
(a) A court order under these regulations may authorize disclosure of
confidential communications made by a patient to a program in the course
of diagnosis, treatment, or referral for treatment only if:
(1) The disclosure is necessary to protect against an existing threat to life or
of serious bodily injury, including circumstances which constitute suspected
child abuse and neglect and verbal threats against third parties;
(2) The disclosure is necessary in connection with investigation or
prosecution of an extremely serious crime, such as one which directly
threatens loss of life or serious bodily injury, including homicide, rape,
kidnapping, armed robbery, assault with a deadly weapon, or child abuse
and neglect; or
(3) The disclosure is in connection with litigation or an administrative
proceeding in which the patient offers testimony or other evidence
pertaining to the content of the confidential communications.
Imminent Danger Defined
Imminent danger is a concept used to describe problems that can
lead to dire consequences for the client (and others). Imminent
danger is defined as the following 3 components:
1.A strong probability that certain behaviors (such as continued
alcohol or drug use or continued self harm) will occur.
2.The potential for such behaviors to present a significant risk of
serious adverse consequences to the individual and/or others.
3.The likelihood that such harmful events will occur in the near future.
Imminent danger is a concept used to describe problems that can
lead to dire consequences for the client (and others). Imminent
danger is defined as the following 3 components:
1.A strong probability that certain behaviors (such as continued
alcohol or drug use or continued self harm) will occur.
2.The potential for such behaviors to present a significant risk of
serious adverse consequences to the individual and/or others.
3.The likelihood that such harmful events will occur in the near future.
NBCC Code of Ethics: Duty to Warn
When a client’s condition indicates that there is a clear and
imminent danger to the client or others, the certified counselor must
take reasonable action to inform potential victims and/or inform
responsible authorities.
Consultation with other professionals must be used when possible.
The assumption of responsibility for the client’s behavior must be
taken only after careful deliberation, and the client must be involved
in the resumption of responsibility as quickly as possible.
When a client’s condition indicates that there is a clear and
imminent danger to the client or others, the certified counselor must
take reasonable action to inform potential victims and/or inform
responsible authorities.
Consultation with other professionals must be used when possible.
The assumption of responsibility for the client’s behavior must be
taken only after careful deliberation, and the client must be involved
in the resumption of responsibility as quickly as possible.
The Duty to Warn
Was their supervisor issues in this case?
What relevance did supervision have on the case?
It is imperative for supervisors to inform supervisees of conditions under
which it would be appropriate to implement the duty to inform an intended
victim.
The clinical supervisor was implicated in the finding of a negligent failure to
warn the prospective victim. If the supervisor had examined Poddar and
found him to not be dangerous, the grounds for liability based on
foreseeability would have been less clear.
The expectation is that sound clinical judgment and reasonable or due care
are taken regarding the determination of dangerousness.
Was their supervisor issues in this case?
What relevance did supervision have on the case?
It is imperative for supervisors to inform supervisees of conditions under
which it would be appropriate to implement the duty to inform an intended
victim.
The clinical supervisor was implicated in the finding of a negligent failure to
warn the prospective victim. If the supervisor had examined Poddar and
found him to not be dangerous, the grounds for liability based on
foreseeability would have been less clear.
The expectation is that sound clinical judgment and reasonable or due care
are taken regarding the determination of dangerousness.
Duty to Warn Vignette
Paul is referred to your organization for domestic violence. The domestic
violence was towards a girlfriend who was attempting to break up with him.
Paul and the girlfriend have since broken up, and she has a restraining order
against him (which he states he abides by). Both clinicians with experience
with this type of client are full and cannot accept anymore clients. As the
clinical director you decide to give this case to an intern, who is supervised by
one of your master’s level clinicians. The intern is assigned the case and not
much happens for a few months that you are aware of. One week in
supervision, your clinician comes to you to inform you that a situation has
happened with this client.
You come to find out that Paul has been increasingly making threatening
statements towards other drivers on the road when he travels to work. He
describes how he gets “infuriated” by other drivers who cut him off, or don’t
move out of the fast lane when he is behind them. At first “altercations” were
just gestures back and forth between he and the other driver at the time.
However, in the past week he followed another driver all the way to that
person’s job, and proceeded to fight him in the parking lot.
Paul is referred to your organization for domestic violence. The domestic
violence was towards a girlfriend who was attempting to break up with him.
Paul and the girlfriend have since broken up, and she has a restraining order
against him (which he states he abides by). Both clinicians with experience
with this type of client are full and cannot accept anymore clients. As the
clinical director you decide to give this case to an intern, who is supervised by
one of your master’s level clinicians. The intern is assigned the case and not
much happens for a few months that you are aware of. One week in
supervision, your clinician comes to you to inform you that a situation has
happened with this client.
You come to find out that Paul has been increasingly making threatening
statements towards other drivers on the road when he travels to work. He
describes how he gets “infuriated” by other drivers who cut him off, or don’t
move out of the fast lane when he is behind them. At first “altercations” were
just gestures back and forth between he and the other driver at the time.
However, in the past week he followed another driver all the way to that
person’s job, and proceeded to fight him in the parking lot.
Duty to Warn Vignette
When asked if anybody was hurt, Paul replied that the other person was “a
bit bloody” when Paul left him on the parking lot grounds. Paul confided to
the intern that he has now started carrying a gun in the car. He at first
played with the intern by stating the gun was there for his “protection”, but
later hinted that it might “come in handy” on his way to work. When
pressed, Paul stated that he would only wave the gun at a potential
“highway offender” to scare him/her. He also stated he is licensed to carry
the gun, and the gun is loaded. The final piece of information that the
clinician tells you is the nature of the domestic violence towards the ex-
girlfriend was Paul hitting this woman on the face with the barrel of a gun.
Paul has been diagnosed with Intermittent Explosive Disorder (DSM-5
314.32). Paul is employed full-time at Home Depot and works as the
customer service manager for returns. Basically his job consists of being
the returns and complaints manager at the Home Depot.
When asked if anybody was hurt, Paul replied that the other person was “a
bit bloody” when Paul left him on the parking lot grounds. Paul confided to
the intern that he has now started carrying a gun in the car. He at first
played with the intern by stating the gun was there for his “protection”, but
later hinted that it might “come in handy” on his way to work. When
pressed, Paul stated that he would only wave the gun at a potential
“highway offender” to scare him/her. He also stated he is licensed to carry
the gun, and the gun is loaded. The final piece of information that the
clinician tells you is the nature of the domestic violence towards the ex-
girlfriend was Paul hitting this woman on the face with the barrel of a gun.
Paul has been diagnosed with Intermittent Explosive Disorder (DSM-5
314.32). Paul is employed full-time at Home Depot and works as the
customer service manager for returns. Basically his job consists of being
the returns and complaints manager at the Home Depot.
Duty to Warn Vignette Questions
1.What are your obligations, if any? If you find you have
obligations, who are you obliged to warn?
2.Currently the only form of feedback on this case comes
from self-report of the intern to the clinician supervising
the intern. Is this sufficient?
3.Were there any problems in the supervisory process that
was described in this example?
1.What are your obligations, if any? If you find you have
obligations, who are you obliged to warn?
2.Currently the only form of feedback on this case comes
from self-report of the intern to the clinician supervising
the intern. Is this sufficient?
3.Were there any problems in the supervisory process that
was described in this example?
Duty to Warn Vignette 2 – “Man found
guilty of serial HIV assaults”
From CNN.com, 11/09/2004
OLYMPIA, Washington (AP) -- A
man was convicted by a judge
Monday on charges he deliberately
exposed 17 women to HIV by having
unprotected sex with them. Five of
the women have tested positive for
the virus, which causes AIDS.
Anthony E. Whitfield, 32, faces a
minimum sentence of 137 years in
prison on the 17 counts of first-degree
assault with sexual motivation and
other charges.
Health officials said as many as 170
people may have been exposed to the
virus because of Whitfield's actions,
counting subsequent partners of
women he slept with. No additional
people have tested positive for HIV,
but 45 refused to be tested or couldn't
be found.
During the trial in Thurston County
court, an Oklahoma prison official
testified that Whitfield was diagnosed
with HIV while incarcerated in 1992.
Two women testified that Whitfield
once said, seemingly in jest, that if he
had HIV, he would give it to as many
people as he could.
Defense lawyer Charles Lane said
Whitfield was addicted to
methamphetamine and used women
for shelter, money and sex but never
meant to inflict "great bodily harm" as
required for him to be convicted of
first-degree assault.
Anthony E. Whitfield, right,
is handcuffed by a Thurston
County corrections officer
Monday.
guilty of serial HIV assaults”
From CNN.com, 11/09/2004
OLYMPIA, Washington (AP) -- A
man was convicted by a judge
Monday on charges he deliberately
exposed 17 women to HIV by having
unprotected sex with them. Five of
the women have tested positive for
the virus, which causes AIDS.
Anthony E. Whitfield, 32, faces a
minimum sentence of 137 years in
prison on the 17 counts of first-degree
assault with sexual motivation and
other charges.
Health officials said as many as 170
people may have been exposed to the
virus because of Whitfield's actions,
counting subsequent partners of
women he slept with. No additional
people have tested positive for HIV,
but 45 refused to be tested or couldn't
be found.
During the trial in Thurston County
court, an Oklahoma prison official
testified that Whitfield was diagnosed
with HIV while incarcerated in 1992.
Two women testified that Whitfield
once said, seemingly in jest, that if he
had HIV, he would give it to as many
people as he could.
Defense lawyer Charles Lane said
Whitfield was addicted to
methamphetamine and used women
for shelter, money and sex but never
meant to inflict "great bodily harm" as
required for him to be convicted of
first-degree assault.
Anthony E. Whitfield, right,
is handcuffed by a Thurston
County corrections officer
Monday.
ACA Code – Contagious Diseases
B.2.b. Contagious, Life-Threatening Diseases
When clients disclose that they have a disease commonly known to
be both communicable and life threatening, counselors may be
justified in disclosing information to identifiable third parties, if they
are known to be at demonstrable and high risk of contracting the
disease.
Prior to making a disclosure, counselors confirm that there is such a
diagnosis and assess the intent of clients to inform the third parties
about their disease or to engage in any behaviors that may be
harmful to an identifiable third party.
B.2.b. Contagious, Life-Threatening Diseases
When clients disclose that they have a disease commonly known to
be both communicable and life threatening, counselors may be
justified in disclosing information to identifiable third parties, if they
are known to be at demonstrable and high risk of contracting the
disease.
Prior to making a disclosure, counselors confirm that there is such a
diagnosis and assess the intent of clients to inform the third parties
about their disease or to engage in any behaviors that may be
harmful to an identifiable third party.
HIV Reporting
As of 2009, 28 states now have HIV reporting for both adults and
adolescents. Under great security, MI stores names and addresses
of individuals who are infected with the virus that causes AIDS.
A complete set of information on Michigan Laws in regards to
HIV/AIDS can be found here:
http://www.nccc.ucsf.edu/docs/Michigan.pdf
333.5114a - Referral of individual to local health department;
assistance with partner notification; information; legal obligation to
inform sexual partners; criminal sanctions; partner notification program;
confidentiality; priority duty of local health department; retention of
reports, records, and data; information exempt from disclosure; biennial
report.
2009 – Leadership Seminar: “Guide to Mental Health Law in NJ and PA.” Leadership Seminars, 4020 N. MacAuthor Blvd, Ste. 122, Irving, Tx. (800) 443-6912.
As of 2009, 28 states now have HIV reporting for both adults and
adolescents. Under great security, MI stores names and addresses
of individuals who are infected with the virus that causes AIDS.
A complete set of information on Michigan Laws in regards to
HIV/AIDS can be found here:
http://www.nccc.ucsf.edu/docs/Michigan.pdf
333.5114a - Referral of individual to local health department;
assistance with partner notification; information; legal obligation to
inform sexual partners; criminal sanctions; partner notification program;
confidentiality; priority duty of local health department; retention of
reports, records, and data; information exempt from disclosure; biennial
report.
2009 – Leadership Seminar: “Guide to Mental Health Law in NJ and PA.” Leadership Seminars, 4020 N. MacAuthor Blvd, Ste. 122, Irving, Tx. (800) 443-6912.
Michigan HIV Partner Notification
333.5114a - partner notification … (2009)
1)A person or governmental entity that administers a test for HIV or an
antibody to HIV to an individual shall refer the individual to the appropriate
local health department for assistance with partner notification if both of the
following conditions are met:
a)The test results indicate that the individual is HIV infected.
b)The person or governmental entity that administered the test
determines that the individual needs assistance with partner
notification.
3)A local health department to which an individual is referred under
subsection (1) shall inform the individual that he or she has a legal
obligation to inform each of his or her sexual partners of the individual's HIV
infection before engaging in sexual relations with that sexual partner, and
that the individual may be subject to criminal sanctions for failure to so
inform a sexual partner.
333.5114a - partner notification … (2009)
1)A person or governmental entity that administers a test for HIV or an
antibody to HIV to an individual shall refer the individual to the appropriate
local health department for assistance with partner notification if both of the
following conditions are met:
a)The test results indicate that the individual is HIV infected.
b)The person or governmental entity that administered the test
determines that the individual needs assistance with partner
notification.
3)A local health department to which an individual is referred under
subsection (1) shall inform the individual that he or she has a legal
obligation to inform each of his or her sexual partners of the individual's HIV
infection before engaging in sexual relations with that sexual partner, and
that the individual may be subject to criminal sanctions for failure to so
inform a sexual partner.
Michigan HIV Confidentiality Standards
333.5131 Serious communicable diseases or infections of HIV
infection and acquired immunodeficiency syndrome;
confidentiality of reports, records, data, and information; test
results; limitations and restrictions on disclosures in response
to court order and subpoena; information released to legislative
body; applicability of subsection (1); immunity; identification of
individual; violation as misdemeanor; penalty.Sec. 5131.
1.All reports, records, and data pertaining to testing, care, treatment,
reporting, and research, and information pertaining to partner notification
under section 5114a, that are associated with the serious communicable
diseases or infections of HIV infection and acquired immunodeficiency
syndrome are confidential. A person shall release reports, records, data,
and information described in this subsection only pursuant to this section.
333.5131 Serious communicable diseases or infections of HIV
infection and acquired immunodeficiency syndrome;
confidentiality of reports, records, data, and information; test
results; limitations and restrictions on disclosures in response
to court order and subpoena; information released to legislative
body; applicability of subsection (1); immunity; identification of
individual; violation as misdemeanor; penalty.Sec. 5131.
1.All reports, records, and data pertaining to testing, care, treatment,
reporting, and research, and information pertaining to partner notification
under section 5114a, that are associated with the serious communicable
diseases or infections of HIV infection and acquired immunodeficiency
syndrome are confidential. A person shall release reports, records, data,
and information described in this subsection only pursuant to this section.
Michigan HIV Confidentiality Standards
333.5131 confidentiality of reports, records, data, and
information …
3.The disclosure of information pertaining to HIV infection or acquired
immunodeficiency syndrome in response to a court order and
subpoena is limited to only the following cases and is subject to all
of the following restrictions:
a)A court that is petitioned for an order to disclose the
information shall determine both of the following:
i.That other ways of obtaining the information are not
available or would not be effective.
ii.That the public interest and need for the disclosure
outweigh the potential for injury to the patient.
333.5131 confidentiality of reports, records, data, and
information …
3.The disclosure of information pertaining to HIV infection or acquired
immunodeficiency syndrome in response to a court order and
subpoena is limited to only the following cases and is subject to all
of the following restrictions:
a)A court that is petitioned for an order to disclose the
information shall determine both of the following:
i.That other ways of obtaining the information are not
available or would not be effective.
ii.That the public interest and need for the disclosure
outweigh the potential for injury to the patient.
Michigan HIV Confidentiality Standards
333.5131 confidentiality of reports, records, data, and
information …
5.Subject to subsection (7), subsection (1) does not apply to the
following:
a)Information pertaining to an individual who is HIV infected or has
been diagnosed as having acquired immunodeficiency syndrome, if
the information is disclosed to the department, a local health
department, or other health care provider for 1 or more of the
following purposes:
i.To protect the health of an individual.
ii.To prevent further transmission of HIV.
iii.To diagnose and care for a patient.
333.5131 confidentiality of reports, records, data, and
information …
5.Subject to subsection (7), subsection (1) does not apply to the
following:
a)Information pertaining to an individual who is HIV infected or has
been diagnosed as having acquired immunodeficiency syndrome, if
the information is disclosed to the department, a local health
department, or other health care provider for 1 or more of the
following purposes:
i.To protect the health of an individual.
ii.To prevent further transmission of HIV.
iii.To diagnose and care for a patient.
Michigan HIV Confidentiality Standards
333.5131 confidentiality of reports, records, data, and
information …
5.Subject to subsection (7), subsection (1) does not apply to the
following:
b)Information pertaining to an individual who is HIV infected or has
been diagnosed as having acquired immunodeficiency syndrome, if
the information is disclosed by a physician or local health officer to
an individual who is known by the physician or local health officer to
be a contact of the individual who is HIV infected or has been
diagnosed as having acquired immunodeficiency syndrome, if the
physician or local health officer determines that the disclosure of the
information is necessary to prevent a reasonably foreseeable risk of
further transmission of HIV.
333.5131 confidentiality of reports, records, data, and
information …
5.Subject to subsection (7), subsection (1) does not apply to the
following:
b)Information pertaining to an individual who is HIV infected or has
been diagnosed as having acquired immunodeficiency syndrome, if
the information is disclosed by a physician or local health officer to
an individual who is known by the physician or local health officer to
be a contact of the individual who is HIV infected or has been
diagnosed as having acquired immunodeficiency syndrome, if the
physician or local health officer determines that the disclosure of the
information is necessary to prevent a reasonably foreseeable risk of
further transmission of HIV.
Michigan HIV Confidentiality Standards
333.5131 confidentiality of reports, records, data, and
information …
5.Subject to subsection (7), subsection (1) does not apply to the
following:
7.A person who discloses information under subsection (5) shall not
include in the disclosure information that identifies the individual to
whom the information pertains, unless the identifying information is
determined by the person making the disclosure to be reasonably
necessary to prevent a foreseeable risk of transmission of HIV.
333.5131 confidentiality of reports, records, data, and
information …
5.Subject to subsection (7), subsection (1) does not apply to the
following:
7.A person who discloses information under subsection (5) shall not
include in the disclosure information that identifies the individual to
whom the information pertains, unless the identifying information is
determined by the person making the disclosure to be reasonably
necessary to prevent a foreseeable risk of transmission of HIV.
Direct and Vicarious Liability
Simmons vs. United States (1986)
oA client was encouraged by a therapist to have sexual relations with
him as a means of acting on her transference feelings and
ultimately attempted suicide. The court found both the therapist and
his supervisor negligent. The supervisor should have known about
the “negligent acts of a subordinate” as there was reason to suspect
something inappropriate was taking place.
Simmons vs. United States (1986)
oA client was encouraged by a therapist to have sexual relations with
him as a means of acting on her transference feelings and
ultimately attempted suicide. The court found both the therapist and
his supervisor negligent. The supervisor should have known about
the “negligent acts of a subordinate” as there was reason to suspect
something inappropriate was taking place.
Direct and Vicarious Liability
Direct Liability: When the actions of the supervisor were
themselves the cause of harm.
If the supervisor did not perform supervision adequate for a
clinician.
If the supervisor suggested (and documented) an
intervention that was determined to be the cause of harm.
Vicarious Liability: Being held liable for the actions of the supervisee
when these [actions] were not suggested or even known by the
supervisor.
“The supervisor is generally only held liable for the negligent acts of
supervisees if these acts are performed in the course and scope of
the supervisory relationship” (Disney & Stephens, 1994).
Direct Liability: When the actions of the supervisor were
themselves the cause of harm.
If the supervisor did not perform supervision adequate for a
clinician.
If the supervisor suggested (and documented) an
intervention that was determined to be the cause of harm.
Vicarious Liability: Being held liable for the actions of the supervisee
when these [actions] were not suggested or even known by the
supervisor.
“The supervisor is generally only held liable for the negligent acts of
supervisees if these acts are performed in the course and scope of
the supervisory relationship” (Disney & Stephens, 1994).
Vicarious Liability (Continued)
“The psychotherapy supervisor assumes, in general, clinical
responsibility much as if the patient were under his or her own care”
(Slovenko, 1980).
Failure to properly oversee the functioning of the clinician is one of
the highest liability issues. How does one best demonstrate
supervisory involvement and prevent malpractice suits:
1.Documentation: supervisor should maintain personal
records of dates and times when supervision was provided.
(Client Name? Clinical Area Covered? Supervisee Issues Only?
Writings should be brief in nature.)
2.Consultation: Regularly scheduled supervision, offering careful
assessment, oversight of clinicians, and regular evaluation.
3.It is advisable for the supervisor to make an independent
assessment of severely disturbed or dangerous clients.
“The psychotherapy supervisor assumes, in general, clinical
responsibility much as if the patient were under his or her own care”
(Slovenko, 1980).
Failure to properly oversee the functioning of the clinician is one of
the highest liability issues. How does one best demonstrate
supervisory involvement and prevent malpractice suits:
1.Documentation: supervisor should maintain personal
records of dates and times when supervision was provided.
(Client Name? Clinical Area Covered? Supervisee Issues Only?
Writings should be brief in nature.)
2.Consultation: Regularly scheduled supervision, offering careful
assessment, oversight of clinicians, and regular evaluation.
3.It is advisable for the supervisor to make an independent
assessment of severely disturbed or dangerous clients.
Vicarious Liability (Continued)
Vicarious Liability was part of the legal argument in the Tarasoff vs.
Regents of California case.
In that case, the lawyer for the plaintiff argued that if the supervisor
independently assessed the client (Prosenjit Poddar) and
determined that the client was not dangerous, the plaintiff might not
have had a case to sue.
Vicarious Liability was part of the legal argument in the Tarasoff vs.
Regents of California case.
In that case, the lawyer for the plaintiff argued that if the supervisor
independently assessed the client (Prosenjit Poddar) and
determined that the client was not dangerous, the plaintiff might not
have had a case to sue.
Supervisor Role and Responsibilities
Inherent and integral to the role of supervisor are responsibilities for:
1.Monitoring client welfare.
2.Encouraging compliance with relevant legal, ethical, and
professional standards for clinical practice.
3.Monitoring clinical performance and professional development
of supervisees.
4.Evaluating and certifying current performance and potential of
supervisees for academic, screening, selection, placement,
employment, and credentialing purposes.
Inherent and integral to the role of supervisor are responsibilities for:
1.Monitoring client welfare.
2.Encouraging compliance with relevant legal, ethical, and
professional standards for clinical practice.
3.Monitoring clinical performance and professional development
of supervisees.
4.Evaluating and certifying current performance and potential of
supervisees for academic, screening, selection, placement,
employment, and credentialing purposes.
Priority Sequence in Resolving Conflicts
1.Relevant legal and ethical standards (e.g., duty to warn, state
child abuse laws, etc.)
2.Client welfare
3.Supervisee welfare
4.Supervisor welfare
5.Program and/or agency service and administrative needs.
1.Relevant legal and ethical standards (e.g., duty to warn, state
child abuse laws, etc.)
2.Client welfare
3.Supervisee welfare
4.Supervisor welfare
5.Program and/or agency service and administrative needs.
Scope of the Supervisory Relationship
1.The supervisor is the person responsible for the evaluation of the
supervisee, and is able to control supervisee clinical actions.
2.It is the supervisee’s duty to perform the act in question (i.e., doing
therapy with assigned clients).
3.Was the act done within the proper time, place and purpose of the
act (e.g., was the act done in the counseling session or away from
the counseling facility).
4.Whether the supervisor could have reasonably expected the
supervisee to commit the act.
1.The supervisor is the person responsible for the evaluation of the
supervisee, and is able to control supervisee clinical actions.
2.It is the supervisee’s duty to perform the act in question (i.e., doing
therapy with assigned clients).
3.Was the act done within the proper time, place and purpose of the
act (e.g., was the act done in the counseling session or away from
the counseling facility).
4.Whether the supervisor could have reasonably expected the
supervisee to commit the act.
Confidentiality
Jaffee vs. Redmond (1996)
oThe family of a deceased individual who was killed by a police
officer attempted in a civil lawsuit to obtain information from the
police officer’s therapist who was a licensed social worker, but not a
licensed psychologist or psychiatrist. This case went all the way to
the Supreme Court who sided with the social worker stating that
legislation (that exists in all 50 states) that creates privilege for
licensed psychotherapists extends to licensed psychotherapists
other than psychologists and psychiatrists.
Jaffee vs. Redmond (1996)
oThe family of a deceased individual who was killed by a police
officer attempted in a civil lawsuit to obtain information from the
police officer’s therapist who was a licensed social worker, but not a
licensed psychologist or psychiatrist. This case went all the way to
the Supreme Court who sided with the social worker stating that
legislation (that exists in all 50 states) that creates privilege for
licensed psychotherapists extends to licensed psychotherapists
other than psychologists and psychiatrists.
Confidentiality
Confidentiality represents the essence of therapy (a safe place
where secrets and hidden fears can be exposed), and because
much of our professional status comes from being the bearer of
such secrets.
Videotapes and audiotapes are secured and confidential
documents, and all supervisees must understand this.
Supervisee’s right to privacy and it is the supervisor’s responsibility
to keep information confidential. It is also the supervisor’s
responsibility to ensure the clinician is keeping client information
confidential.
Confidentiality represents the essence of therapy (a safe place
where secrets and hidden fears can be exposed), and because
much of our professional status comes from being the bearer of
such secrets.
Videotapes and audiotapes are secured and confidential
documents, and all supervisees must understand this.
Supervisee’s right to privacy and it is the supervisor’s responsibility
to keep information confidential. It is also the supervisor’s
responsibility to ensure the clinician is keeping client information
confidential.
Confidentiality Components
Confidentiality is defined as: “an explicit promise or contract to reveal
nothing about an individual except under conditions agreed to by the source
or subject” (Siegel, 1979).
Privacy is defined as: “the client’s right not to have private information
divulged without informed consent, including the information gained in
therapy” (Siegel, 1979).
Privileged Communication is defined as: “the right of clients not to have
their confidential communications used in open court without their consent”
(Siegel, 1979).
Confidentiality is defined as: “an explicit promise or contract to reveal
nothing about an individual except under conditions agreed to by the source
or subject” (Siegel, 1979).
Privacy is defined as: “the client’s right not to have private information
divulged without informed consent, including the information gained in
therapy” (Siegel, 1979).
Privileged Communication is defined as: “the right of clients not to have
their confidential communications used in open court without their consent”
(Siegel, 1979).
ACA Confidentiality Components
B.3.b. Treatment Teams
When client treatment involves a continued review or participation by a
treatment team, the client will be informed of the team’s existence and
composition, information being shared, and the purposes of sharing such
information.
B.3.c. Confidential Settings
Counselors discuss confidential information only in settings in which they
can reasonably ensure client privacy.
B.3.d. Third-Party Payers
Counselors disclose information to third-party payers only when clients have
authorized such disclosure.
B.3.b. Treatment Teams
When client treatment involves a continued review or participation by a
treatment team, the client will be informed of the team’s existence and
composition, information being shared, and the purposes of sharing such
information.
B.3.c. Confidential Settings
Counselors discuss confidential information only in settings in which they
can reasonably ensure client privacy.
B.3.d. Third-Party Payers
Counselors disclose information to third-party payers only when clients have
authorized such disclosure.
ACA Confidentiality Components
B.3.e. Transmitting Confidential Information
Counselors take precautions to ensure the confidentiality of information
transmitted through the use of computers, electronic mail, facsimile
machines, telephones, voicemail, answering machines, and other electronic
or computer technology.
B.3.f. Deceased Clients
Counselors protect the confidentiality of deceased clients, consistent with
legal requirements
B.3.e. Transmitting Confidential Information
Counselors take precautions to ensure the confidentiality of information
transmitted through the use of computers, electronic mail, facsimile
machines, telephones, voicemail, answering machines, and other electronic
or computer technology.
B.3.f. Deceased Clients
Counselors protect the confidentiality of deceased clients, consistent with
legal requirements
Confidentiality Vignette
As the clinical director, you have been assigned to be the HIV
counselor. Your grant stipulates that all clients must be counseled
and given the opportunity to test for HIV. As part of this title, you
went to the state run training and are certified as an HIV counseling
and testing person (one of two in your agency). Your Executive
Director has taken on a small caseload and comes to you stating
that one of his clients is interested in HIV testing. The client is
scheduled, receives the testing, and the results come back in about
5 weeks.
You inform your E.D. that the results are in, and ask her to schedule
the client to see you to obtain the results. The E.D. then asks you
for the results of the testing. You remember in your training that the
results are strictly confidential between yourself and the client (and
only the client can tell others the results of the testing), and you
state this fact to the E.D.
As the clinical director, you have been assigned to be the HIV
counselor. Your grant stipulates that all clients must be counseled
and given the opportunity to test for HIV. As part of this title, you
went to the state run training and are certified as an HIV counseling
and testing person (one of two in your agency). Your Executive
Director has taken on a small caseload and comes to you stating
that one of his clients is interested in HIV testing. The client is
scheduled, receives the testing, and the results come back in about
5 weeks.
You inform your E.D. that the results are in, and ask her to schedule
the client to see you to obtain the results. The E.D. then asks you
for the results of the testing. You remember in your training that the
results are strictly confidential between yourself and the client (and
only the client can tell others the results of the testing), and you
state this fact to the E.D.
Confidentiality Vignette
The E.D. becomes defensive and states that the agency runs as a
treatment team and he has the right to know the results of his client’s test.
He starts by stating that 42 CFR – Part 2 allows this exception (clinical team
staffing) to the client’s confidentiality. You state that you were given explicit
instructions during your training that the test results were strictly confidential
information between you and the client, and the information can only be
shared if the client decides to disclose this information to his/her therapist.
The E.D. then becomes angry with you and states that if you don’t hand him
the paper (with the results on it), he will write you up. Sensing your
hesitation and continued rebuttal, she snatches the paper out of your hand
and reads the results of the test. She then publicly reprimands you that
your behavior was inexcusable and will not be tolerated again. You decide
to put off your request for a raise at this time.
The E.D. becomes defensive and states that the agency runs as a
treatment team and he has the right to know the results of his client’s test.
He starts by stating that 42 CFR – Part 2 allows this exception (clinical team
staffing) to the client’s confidentiality. You state that you were given explicit
instructions during your training that the test results were strictly confidential
information between you and the client, and the information can only be
shared if the client decides to disclose this information to his/her therapist.
The E.D. then becomes angry with you and states that if you don’t hand him
the paper (with the results on it), he will write you up. Sensing your
hesitation and continued rebuttal, she snatches the paper out of your hand
and reads the results of the test. She then publicly reprimands you that
your behavior was inexcusable and will not be tolerated again. You decide
to put off your request for a raise at this time.
Confidentiality Vignette Questions
1.Has the E.D. violated the client’s confidentiality in this matter?
2.If you decide the answer to question 1 is yes, what needs to occur
in this case? With the E.D.? With the client? With the policy you
tried to enforce?
3.Before anything is resolved in this matter, 2 other staff members
come to you asking for the results of their client’s tests. When you
rebuke their request, they bring back the discussion that took place
between you and the E.D. and insist on getting the results. What
steps need to happen here?
1.Has the E.D. violated the client’s confidentiality in this matter?
2.If you decide the answer to question 1 is yes, what needs to occur
in this case? With the E.D.? With the client? With the policy you
tried to enforce?
3.Before anything is resolved in this matter, 2 other staff members
come to you asking for the results of their client’s tests. When you
rebuke their request, they bring back the discussion that took place
between you and the E.D. and insist on getting the results. What
steps need to happen here?
Exceptions to Confidentiality
1.Suicidal/Homicidal Risk
2.Medical Emergency
3. Court Order
4. Child/Elder Abuse 333.16281
5.Internal Communication (e.g., billing issues, cancelled
appointments).
6.When clients express the intent to commit a crime or when they
commit a crime on the premises (What about admission of a
crime?).
7.When the client initiates a malpractice suit against the therapist or
supervisor, or there is disciplinary action on the professional
counselor. 333.16244
1.Suicidal/Homicidal Risk
2.Medical Emergency
3. Court Order
4. Child/Elder Abuse 333.16281
5.Internal Communication (e.g., billing issues, cancelled
appointments).
6.When clients express the intent to commit a crime or when they
commit a crime on the premises (What about admission of a
crime?).
7.When the client initiates a malpractice suit against the therapist or
supervisor, or there is disciplinary action on the professional
counselor. 333.16244
Exceptions to Confidentiality (continued)
8.No identifying information.
9.Research/Audit and Evaluation.
10.Qualified Service Agreement (3rd Party Payer)
8.No identifying information.
9.Research/Audit and Evaluation.
10.Qualified Service Agreement (3rd Party Payer)
Legal Standards of Confidentiality
333.18117 Privileged communications; disclosure of
confidential information.
Sec. 18117.
1.For the purposes of this part, the confidential relations and
communications between a licensed professional counselor or a
limited licensed counselor and a client of the licensed professional
counselor or a limited licensed counselor are privileged
communications, and this part does not require a privileged
communication to be disclosed, except as otherwise provided by
law. Confidential information may be disclosed only upon consent of
the client, pursuant to section 16222 (duty to report) if the licensee
reasonably believes it is necessary to disclose the information to
comply with section 16222, or under section 16281 (initiation of
child abuse and neglect proceedings).
333.18117 Privileged communications; disclosure of
confidential information.
Sec. 18117.
1.For the purposes of this part, the confidential relations and
communications between a licensed professional counselor or a
limited licensed counselor and a client of the licensed professional
counselor or a limited licensed counselor are privileged
communications, and this part does not require a privileged
communication to be disclosed, except as otherwise provided by
law. Confidential information may be disclosed only upon consent of
the client, pursuant to section 16222 (duty to report) if the licensee
reasonably believes it is necessary to disclose the information to
comply with section 16222, or under section 16281 (initiation of
child abuse and neglect proceedings).
Case Records & Confidentiality
Suslovich vs. New York State Education Department (1991)
oThis was an appeal by a psychologist whose license was
suspended by the state licensing board for a lack of record keeping
regarding a case brought to the board by an insurance company for
fraudulent billing practices. The appeal upheld the ruling on the
grounds that simple record keeping, such as relying on one’s
memory, was not sufficient to provide an adequate record.
Suslovich vs. New York State Education Department (1991)
oThis was an appeal by a psychologist whose license was
suspended by the state licensing board for a lack of record keeping
regarding a case brought to the board by an insurance company for
fraudulent billing practices. The appeal upheld the ruling on the
grounds that simple record keeping, such as relying on one’s
memory, was not sufficient to provide an adequate record.
Case Records & Confidentiality
Some recommended guidelines:
1.Record no more than is essential to the functions of the agency.
Identify observed facts and distinguish them from opinions.
2.Omit details of clients’ intimate lives from case records; describe
intimate problems in general terms.
3.Do not include process recordings or other clinical supervision
notes in case files.
4.Keep case records in locked files and issue keys only to those who
require frequent access to the files.
Some recommended guidelines:
1.Record no more than is essential to the functions of the agency.
Identify observed facts and distinguish them from opinions.
2.Omit details of clients’ intimate lives from case records; describe
intimate problems in general terms.
3.Do not include process recordings or other clinical supervision
notes in case files.
4.Keep case records in locked files and issue keys only to those who
require frequent access to the files.
Case Records & Confidentiality
5.Do not remove case files from the agency or private practice except
under extraordinary circumstances with special authorization (if in
private practice get permission from … yourself, but only in an
extraordinary circumstance).
6.Do not leave case files on desks where janitorial personnel or
others might have access to them.
7.Use in-service training sessions to stress confidentiality and to
monitor observance of agency policies and practices instituted to
safeguard confidentiality.
5.Do not remove case files from the agency or private practice except
under extraordinary circumstances with special authorization (if in
private practice get permission from … yourself, but only in an
extraordinary circumstance).
6.Do not leave case files on desks where janitorial personnel or
others might have access to them.
7.Use in-service training sessions to stress confidentiality and to
monitor observance of agency policies and practices instituted to
safeguard confidentiality.
Case Records & Confidentiality
Federal Privacy Act of 1974 was enacted to safeguard people
against “harmful disclosures of information whether through
inaccurate information being used in irrelevant circumstances, or
through inaccurate information being used in important decisions
affecting individuals.”
Even though this is a federal law, many states have enacted
corresponding statutes to protect people’s rights to privacy.
The Federal Privacy Act specifies duties for agencies/professionals
that maintain record-keeping systems, including the following:
Federal Privacy Act of 1974 was enacted to safeguard people
against “harmful disclosures of information whether through
inaccurate information being used in irrelevant circumstances, or
through inaccurate information being used in important decisions
affecting individuals.”
Even though this is a federal law, many states have enacted
corresponding statutes to protect people’s rights to privacy.
The Federal Privacy Act specifies duties for agencies/professionals
that maintain record-keeping systems, including the following:
Agency Record Keeping Duties
1.Maintaining only information relevant and necessary to the
agency’s purposes.
2.Collecting as much information as possible from the client directly.
3.Informing clients of the agency’s authority to gather information,
whether disclosure is mandatory or voluntary, the principal purpose
of the use of the information, the routine uses and effects, if any, of
not providing part or all of the information.
4.Maintaining and updating records to assure accuracy, relevancy,
timeliness and completeness.
1.Maintaining only information relevant and necessary to the
agency’s purposes.
2.Collecting as much information as possible from the client directly.
3.Informing clients of the agency’s authority to gather information,
whether disclosure is mandatory or voluntary, the principal purpose
of the use of the information, the routine uses and effects, if any, of
not providing part or all of the information.
4.Maintaining and updating records to assure accuracy, relevancy,
timeliness and completeness.
Agency Record Keeping Duties
5.Notifying clients of the release of records owing to compulsory legal
actions.
6.Establishing procedures to inform clients of the existence of their
records, including special measures if necessary for disclosure of
medical and psychological records and a review of requests to
amend or correct the records.
5.Notifying clients of the release of records owing to compulsory legal
actions.
6.Establishing procedures to inform clients of the existence of their
records, including special measures if necessary for disclosure of
medical and psychological records and a review of requests to
amend or correct the records.
Clients Access to their Own Records
Both the Freedom of Information Act (1966) and the Privacy Act
(1974) establish the right of the client to have access of their own
records.
Research by Freed (1978) found that agencies that tried sharing
case records with clients have found that the practice contributes
favorably to enhancing client’s trust and the openness of the
therapeutic relationship.
When should records be withheld?
1.Only in very limited circumstances when there is compelling
evidence that such access would cause serious harm to the client.
Both the Freedom of Information Act (1966) and the Privacy Act
(1974) establish the right of the client to have access of their own
records.
Research by Freed (1978) found that agencies that tried sharing
case records with clients have found that the practice contributes
favorably to enhancing client’s trust and the openness of the
therapeutic relationship.
When should records be withheld?
1.Only in very limited circumstances when there is compelling
evidence that such access would cause serious harm to the client.
Michigan Medical Records Access Act
333.26265 Request by authorized individual to examine
or obtain medical record; response by health care
provider or facility; extension of response time.
Sec. 5.
1.Except as otherwise provided by law or regulation, a patient or his
or her authorized representative has the right to examine or obtain
the patient's medical record.
2.An individual authorized under subsection (1) who wishes to
examine or obtain a copy of the patient's medical record shall
submit a written request that is signed and dated by that individual
not more than 60 days before being submitted to the health care
provider or health facility that maintains the medical record that is
the subject of the request.
333.26265 Request by authorized individual to examine
or obtain medical record; response by health care
provider or facility; extension of response time.
Sec. 5.
1.Except as otherwise provided by law or regulation, a patient or his
or her authorized representative has the right to examine or obtain
the patient's medical record.
2.An individual authorized under subsection (1) who wishes to
examine or obtain a copy of the patient's medical record shall
submit a written request that is signed and dated by that individual
not more than 60 days before being submitted to the health care
provider or health facility that maintains the medical record that is
the subject of the request.
Michigan Medical Records Access Act
2(a) Make the medical record available for inspection or copying, or
both, at the health care provider's or health facility's business
location during regular business hours or provide a copy of all or
part of the medical record, as requested by the patient or his or her
authorized representative.
2(b) If the health care provider or health facility has contracted with
another person or medical records company, the provider or facility
needs to obtain those records from the company and comply with
2(a).
2(c) Inform the patient or his or her authorized representative if the
medical record does not exist or cannot be found.
2(a) Make the medical record available for inspection or copying, or
both, at the health care provider's or health facility's business
location during regular business hours or provide a copy of all or
part of the medical record, as requested by the patient or his or her
authorized representative.
2(b) If the health care provider or health facility has contracted with
another person or medical records company, the provider or facility
needs to obtain those records from the company and comply with
2(a).
2(c) Inform the patient or his or her authorized representative if the
medical record does not exist or cannot be found.
Michigan Medical Records Access Act
2(e) If the health care provider or health facility determines that disclosure
of the requested medical record is likely to have an adverse effect on the
patient, the health care provider or health facility shall provide a clear
statement supporting that determination and provide the medical record to
another health care provider, health facility, or legal counsel designated by
the patient or his or her authorized representative.
2(f) If the health care provider or health facility receives a request for a
medical record that was obtained from someone other than a health care
provider or health facility under a confidentiality agreement, the health care
provider or health facility may deny access to that medical record if access
to that medical record would be reasonably likely to reveal the source of the
information. If the health care provider or health facility denies access under
this subdivision, it shall provide the patient or his or her authorized
representative with a written denial.
2(e) If the health care provider or health facility determines that disclosure
of the requested medical record is likely to have an adverse effect on the
patient, the health care provider or health facility shall provide a clear
statement supporting that determination and provide the medical record to
another health care provider, health facility, or legal counsel designated by
the patient or his or her authorized representative.
2(f) If the health care provider or health facility receives a request for a
medical record that was obtained from someone other than a health care
provider or health facility under a confidentiality agreement, the health care
provider or health facility may deny access to that medical record if access
to that medical record would be reasonably likely to reveal the source of the
information. If the health care provider or health facility denies access under
this subdivision, it shall provide the patient or his or her authorized
representative with a written denial.
Michigan Medical Records Access Act
2(g) The health care provider, health facility, or medical records
company shall take reasonable steps to verify the identity of the
person making the request to examine or obtain a copy of the
patient's medical record.
(3) If the health care provider, health facility, or medical records
company is unable to take action as required under subsection (2)
and the health care provider, health facility, or medical records
company provides the patient with a written statement indicating the
reasons for its delay within the required time period, the health care
provider, health facility, or medical records company may extend
the response time for no more than 30 days. A health care provider,
health facility, or medical records company may only extend the
response time once per request under this subsection.
2(g) The health care provider, health facility, or medical records
company shall take reasonable steps to verify the identity of the
person making the request to examine or obtain a copy of the
patient's medical record.
(3) If the health care provider, health facility, or medical records
company is unable to take action as required under subsection (2)
and the health care provider, health facility, or medical records
company provides the patient with a written statement indicating the
reasons for its delay within the required time period, the health care
provider, health facility, or medical records company may extend
the response time for no more than 30 days. A health care provider,
health facility, or medical records company may only extend the
response time once per request under this subsection.
Michigan Medical Records Access - Fees
333.26269 Fee. Sec. 9.
1.Except as otherwise provided in this section, if a patient or his or her
authorized representative makes a request for a copy of all or part
of his or her medical record under section 5, the health care
provider, health facility, or medical records company to which the
request is directed may charge the patient or his or her authorized
representative a fee that is not more than the following amounts:
a)An initial fee of $20.00 per request for a copy of the record.
b)Paper copies as follows:
i.One dollar per page for the first 20 pages.
ii.Fifty cents per page for pages 21 through 50.
iii.Twenty cents for pages 51 and over.
3.A health care provider, health facility, or medical records company
shall waive all fees for a medically indigent individual for 1 copy.
333.26269 Fee. Sec. 9.
1.Except as otherwise provided in this section, if a patient or his or her
authorized representative makes a request for a copy of all or part
of his or her medical record under section 5, the health care
provider, health facility, or medical records company to which the
request is directed may charge the patient or his or her authorized
representative a fee that is not more than the following amounts:
a)An initial fee of $20.00 per request for a copy of the record.
b)Paper copies as follows:
i.One dollar per page for the first 20 pages.
ii.Fifty cents per page for pages 21 through 50.
iii.Twenty cents for pages 51 and over.
3.A health care provider, health facility, or medical records company
shall waive all fees for a medically indigent individual for 1 copy.
Michigan Record Retention Legislation
333.16213 Retention of records.Sec. 16213.
1.An individual licensed under this article shall keep and maintain a
record for each patient for whom he or she has provided medical
services, including a full and complete record of tests and
examinations performed, observations made, and treatments
provided. Unless a longer retention period is otherwise required
under federal or state laws or regulations or by generally accepted
standards of medical practice, a licensee shall keep and retain each
record for a minimum of 7 years from the date of service to which
the record pertains. The records shall be maintained in such a
manner as to protect their integrity, to ensure their confidentiality
and proper use, and to ensure their accessibility and availability to
each patient or his or her authorized representative as required by
law.
333.16213 Retention of records.Sec. 16213.
1.An individual licensed under this article shall keep and maintain a
record for each patient for whom he or she has provided medical
services, including a full and complete record of tests and
examinations performed, observations made, and treatments
provided. Unless a longer retention period is otherwise required
under federal or state laws or regulations or by generally accepted
standards of medical practice, a licensee shall keep and retain each
record for a minimum of 7 years from the date of service to which
the record pertains. The records shall be maintained in such a
manner as to protect their integrity, to ensure their confidentiality
and proper use, and to ensure their accessibility and availability to
each patient or his or her authorized representative as required by
law.
Clinical Supervision Recordkeeping
Clinical Supervision Notes:
Clinical supervision notes serve a number of functions, including:
Gathering evidence for your personal log of reflective practice.
Helping you to keep a track of your trainee’s professional development
and competence during the course of his/her placement.
Provides you with evidence to help form a judgment of competence
throughout the continuum, not just at evaluation points.
Can provide a focus for future supervision issues, such as reflecting on
development later on in the placement.
Provides a record of decisions, judgments and perspectives taken during
a supervision session.
Helps a supervisor to keep track of clinical work undertaken by the
trainee.
Can provide detailed feedback to your trainee.
Clinical Supervision Notes:
Clinical supervision notes serve a number of functions, including:
Gathering evidence for your personal log of reflective practice.
Helping you to keep a track of your trainee’s professional development
and competence during the course of his/her placement.
Provides you with evidence to help form a judgment of competence
throughout the continuum, not just at evaluation points.
Can provide a focus for future supervision issues, such as reflecting on
development later on in the placement.
Provides a record of decisions, judgments and perspectives taken during
a supervision session.
Helps a supervisor to keep track of clinical work undertaken by the
trainee.
Can provide detailed feedback to your trainee.
Clinical Supervision Recordkeeping
Clinical Supervision Notes:
Notes should be kept in such a way that the reasoning behind opinions and
decisions can be understood.
Alternative courses of action that have been considered should be noted.
Alternative points of view, including disagreements between trainee and
supervisor should be noted.
The way in which disagreements or interpersonal difficulties are resolved
can be noted and are good topic area for future supervision discussions.
Clinical Supervision Notes:
Notes should be kept in such a way that the reasoning behind opinions and
decisions can be understood.
Alternative courses of action that have been considered should be noted.
Alternative points of view, including disagreements between trainee and
supervisor should be noted.
The way in which disagreements or interpersonal difficulties are resolved
can be noted and are good topic area for future supervision discussions.
Clinical Supervision Recordkeeping
Clinical Supervision Notes:
Supervision notes are the official record of your supervision practice, over the
course of a supervisee’s placement.
For the purposes of personal development and reflection, the supervisor
may wish to record personal information, such as countertransference
material (awareness of thoughts about being a supervisor or about the
trainee, strong feelings, activation of schemas) and behavior during a
supervision session. This information will be useful when seeking your
own supervision.
Be aware however that all records kept in the course of your work can
potentially become a matter of public record should there be a future
court case or licensing board inquiry.
Clinical Supervision Notes:
Supervision notes are the official record of your supervision practice, over the
course of a supervisee’s placement.
For the purposes of personal development and reflection, the supervisor
may wish to record personal information, such as countertransference
material (awareness of thoughts about being a supervisor or about the
trainee, strong feelings, activation of schemas) and behavior during a
supervision session. This information will be useful when seeking your
own supervision.
Be aware however that all records kept in the course of your work can
potentially become a matter of public record should there be a future
court case or licensing board inquiry.
Informed Consent
"Informed consent" is a process of sharing information with clients
that is essential to their ability to make rational choices among
multiple options in their perceived best interest.
Informed consent was founded as a legal standard of care on the
principle of individuals' rights over their own bodies and was well
established by the turn of this century.
Informed consent had been enforced progressively: first for surgical
procedures, then medical (non-surgical) ones, and finally for
medication itself.
Until recently mental health and addictions counseling had largely
avoided this standard.
"Informed consent" is a process of sharing information with clients
that is essential to their ability to make rational choices among
multiple options in their perceived best interest.
Informed consent was founded as a legal standard of care on the
principle of individuals' rights over their own bodies and was well
established by the turn of this century.
Informed consent had been enforced progressively: first for surgical
procedures, then medical (non-surgical) ones, and finally for
medication itself.
Until recently mental health and addictions counseling had largely
avoided this standard.
Informed Consent
According to Beahrs & Gutheil (2001) several factors traditionally
shielded psychotherapy from standard of informed consent:
1.“First and foremost was that therapeutic communications were
considered sacrosanct and rarely made available to others in
uncensored form.”
2.“An additional distinction was the fact that psychotherapy is
physically noninvasive, with patients being conscious and able
to monitor the process themselves.”
3.“Finally, the multiple uncertainties and complexities that can
influence the outcome of treatment for a mental disorder make
it very difficult to demonstrate convincingly any specific harm
allegedly caused by the psychotherapeutic process itself.”
According to Beahrs & Gutheil (2001) several factors traditionally
shielded psychotherapy from standard of informed consent:
1.“First and foremost was that therapeutic communications were
considered sacrosanct and rarely made available to others in
uncensored form.”
2.“An additional distinction was the fact that psychotherapy is
physically noninvasive, with patients being conscious and able
to monitor the process themselves.”
3.“Finally, the multiple uncertainties and complexities that can
influence the outcome of treatment for a mental disorder make
it very difficult to demonstrate convincingly any specific harm
allegedly caused by the psychotherapeutic process itself.”
Informed Consent
The supervisor must determine that clients have been informed by
the supervisee regarding the parameters of therapy.
The supervisor must also be sure that clients are aware of the
parameters of supervision that will affect them.
Supervisor must provide the supervisee with the opportunity for
informed consent (i.e., the conditions and parameters that dictate
their existence in their workplace).
A clinician shall not withhold information that the client needs or
reasonably could use to make informed treatment decisions,
including options for treatment not provided by the clinician.
The supervisor must determine that clients have been informed by
the supervisee regarding the parameters of therapy.
The supervisor must also be sure that clients are aware of the
parameters of supervision that will affect them.
Supervisor must provide the supervisee with the opportunity for
informed consent (i.e., the conditions and parameters that dictate
their existence in their workplace).
A clinician shall not withhold information that the client needs or
reasonably could use to make informed treatment decisions,
including options for treatment not provided by the clinician.
Informed Consent with Clients
What are the reasonable risks of therapy?
What are the reasonable benefits of therapy?
What are the logistics of treatment (cost, length of sessions, number
of sessions)?
What are the financial incentives or penalties which limit the
provision of appropriate treatment (especially when dealing with
third party providers, and the limitations imposed by those payers)?
What type of therapy will be offered (what is your theoretical
orientation … cognitive behavioral, marital, gestalt)?
What are the reasonable risks of therapy?
What are the reasonable benefits of therapy?
What are the logistics of treatment (cost, length of sessions, number
of sessions)?
What are the financial incentives or penalties which limit the
provision of appropriate treatment (especially when dealing with
third party providers, and the limitations imposed by those payers)?
What type of therapy will be offered (what is your theoretical
orientation … cognitive behavioral, marital, gestalt)?
Informed Consent Regarding Supervision
All clients should be informed of the supervisory process upon the first
session (and what that will mean for each client, what level of supervision).
Supervisor may want to meet with the client of supervisee for a number of
reasons:
1.By meeting the supervisor directly, the client usually is more
comfortable with the prospect of supervision.
2.It gives the supervisor an opportunity to model for supervisee’s the
kind of direct, open communication that is needed for informed
consent.
All clients should be informed of the supervisory process upon the first
session (and what that will mean for each client, what level of supervision).
Supervisor may want to meet with the client of supervisee for a number of
reasons:
1.By meeting the supervisor directly, the client usually is more
comfortable with the prospect of supervision.
2.It gives the supervisor an opportunity to model for supervisee’s the
kind of direct, open communication that is needed for informed
consent.
Informed Consent – Prof. Disclosure
333.18113 Professional disclosure statement.
1.A licensee shall furnish a professional disclosure statement to a prospective
client before engaging in counseling services.
2.A professional disclosure statement required under this section shall contain
all of the following:
a.The licensee's name, business address, and telephone number.
b.A description of the licensee's practice.
c.A description of the education and experience of the licensee.
d.The licensee's counseling fee schedule.
e.The name, address, and telephone number of the department.
3.The disclosure statement shall accompany the original application for
licensure. Any changes in the disclosure statement shall be filed with the
department within 30 days after the changes are made.
333.18113 Professional disclosure statement.
1.A licensee shall furnish a professional disclosure statement to a prospective
client before engaging in counseling services.
2.A professional disclosure statement required under this section shall contain
all of the following:
a.The licensee's name, business address, and telephone number.
b.A description of the licensee's practice.
c.A description of the education and experience of the licensee.
d.The licensee's counseling fee schedule.
e.The name, address, and telephone number of the department.
3.The disclosure statement shall accompany the original application for
licensure. Any changes in the disclosure statement shall be filed with the
department within 30 days after the changes are made.
Informed Consent Vignette
You are supervising a Social Worker intern in a behavioral healthcare
outpatient facility. This trainee sees a client for the first time and begins
doing the intake information. You view the tape of the client and trainee,
and let him know that he forgot to inform the client about the procedure of
therapy, cost, and the risk/benefit of entering into therapy. You model how
this should be done (as this is the intern’s first client), and assign this as the
first task to happen during the next session. You also tell the intern that the
tasks at hand (for the next couple of sessions) are completing the intake
(assessment phase) forms, assessing client
needs/wants/problems/strengths, and formulating agreed upon treatment
goals. The intern states he understands.
Next session, the intern follows your instructions and provides the informed
consent you requested. He then continues with ASI and other standardized
assessment forms with the client. During the session the client begins to
talk about some of his problems, and your intern seizes the moment to do
some guided imagery with him regarding the problem he was talking about
(feeling abandoned by his father). After the exercise, the intern continues to
fill out assessment forms.
You are supervising a Social Worker intern in a behavioral healthcare
outpatient facility. This trainee sees a client for the first time and begins
doing the intake information. You view the tape of the client and trainee,
and let him know that he forgot to inform the client about the procedure of
therapy, cost, and the risk/benefit of entering into therapy. You model how
this should be done (as this is the intern’s first client), and assign this as the
first task to happen during the next session. You also tell the intern that the
tasks at hand (for the next couple of sessions) are completing the intake
(assessment phase) forms, assessing client
needs/wants/problems/strengths, and formulating agreed upon treatment
goals. The intern states he understands.
Next session, the intern follows your instructions and provides the informed
consent you requested. He then continues with ASI and other standardized
assessment forms with the client. During the session the client begins to
talk about some of his problems, and your intern seizes the moment to do
some guided imagery with him regarding the problem he was talking about
(feeling abandoned by his father). After the exercise, the intern continues to
fill out assessment forms.
Informed Consent Vignette
After viewing the tape, you caution the intern not to get ahead of himself
and start doing therapy (guided imagery exercise). You also informed the
intern that he did not explain this technique to the client, nor did he ask the
client’s permission to utilize this technique. You clearly outline to the intern
what should happen in the next session (restating what was said previously
regarding assessment stage tasks).
The next session, the intern again continues to complete assessment
forms, when the client discloses that he feels inept as a father. A light
flashes in your interns mind, and he discloses to the client that privately he
does work with a men’s movement organization. This organization helps
men “gain integrity with themselves, with their family of origin, and with their
current family’s structure.” He informs the client of a powerful technique he
knows which involves blindfolding the client and leading the client around
the room while the therapist asks him questions about his manhood and
fatherhood. The client agrees to have this procedure done.
After viewing the tape, you caution the intern not to get ahead of himself
and start doing therapy (guided imagery exercise). You also informed the
intern that he did not explain this technique to the client, nor did he ask the
client’s permission to utilize this technique. You clearly outline to the intern
what should happen in the next session (restating what was said previously
regarding assessment stage tasks).
The next session, the intern again continues to complete assessment
forms, when the client discloses that he feels inept as a father. A light
flashes in your interns mind, and he discloses to the client that privately he
does work with a men’s movement organization. This organization helps
men “gain integrity with themselves, with their family of origin, and with their
current family’s structure.” He informs the client of a powerful technique he
knows which involves blindfolding the client and leading the client around
the room while the therapist asks him questions about his manhood and
fatherhood. The client agrees to have this procedure done.
Informed Consent Vignette
Excited at the prospect of doing his “life’s work” with the client, the intern
scrambles to make a makeshift blindfold. He then stands the client up,
holds the client’s hand, leads the client walking around the room asking the
client a series of questions (e.g., “In what way are you less than a whole
man” and “In what way are you strong”).
Excited about the exercise he just did, and before his next scheduled
supervision session with you, the intern describes to the staff (in peer
supervision meeting) the details of the aforementioned exercise and his
rationale for doing the exercise. In the questioning of this intern, you sense
some concern from some other clinicians (e.g., one clinician asked if the
client consented to this procedure and the intern stated he fully explained
the procedure to the client before proceeding). At one point the meeting
gets quiet and people look to you to see if you have any feedback to give
your intern.
Excited at the prospect of doing his “life’s work” with the client, the intern
scrambles to make a makeshift blindfold. He then stands the client up,
holds the client’s hand, leads the client walking around the room asking the
client a series of questions (e.g., “In what way are you less than a whole
man” and “In what way are you strong”).
Excited about the exercise he just did, and before his next scheduled
supervision session with you, the intern describes to the staff (in peer
supervision meeting) the details of the aforementioned exercise and his
rationale for doing the exercise. In the questioning of this intern, you sense
some concern from some other clinicians (e.g., one clinician asked if the
client consented to this procedure and the intern stated he fully explained
the procedure to the client before proceeding). At one point the meeting
gets quiet and people look to you to see if you have any feedback to give
your intern.
Informed Consent Vignette Questions
1.Has the MA intern properly done informed consent in this case
example?
2.What feedback should you give the intern in peer supervision
meeting?
3.Once you get this intern alone, what next?
1.Has the MA intern properly done informed consent in this case
example?
2.What feedback should you give the intern in peer supervision
meeting?
3.Once you get this intern alone, what next?
Americans with Disabilities Act
The ADA Amendments Act of 2008 (ADAAA) was enacted on
September 25, 2008, and became effective on January 1, 2009.
This law made a number of significant changes to the definition of
“disability.”
It also directed the U.S. Equal Employment Opportunity
Commission (EEOC) to amend its ADA regulations to reflect the
changes made by the ADAAA.
The final regulations were published in the Federal Register on
March 25, 2011.
The ADA Amendments Act of 2008 (ADAAA) was enacted on
September 25, 2008, and became effective on January 1, 2009.
This law made a number of significant changes to the definition of
“disability.”
It also directed the U.S. Equal Employment Opportunity
Commission (EEOC) to amend its ADA regulations to reflect the
changes made by the ADAAA.
The final regulations were published in the Federal Register on
March 25, 2011.
Americans with Disabilities Act
Who is not affected by the ADA?
Corporations fully owned by the U.S. Government (though the U.S.
government is are covered by similar regulations promulgated by
other disability and discrimination laws.
Indian Tribes.
Bona fide private clubs that are exempt from taxation under the
Internal Revenue Code.
Private clubs and religious organizations are exempt from Title III
(public accomodation) provisions.
Who is not affected by the ADA?
Corporations fully owned by the U.S. Government (though the U.S.
government is are covered by similar regulations promulgated by
other disability and discrimination laws.
Indian Tribes.
Bona fide private clubs that are exempt from taxation under the
Internal Revenue Code.
Private clubs and religious organizations are exempt from Title III
(public accomodation) provisions.
Americans with Disabilities Act
The ADAAA and the final regulations define a disability using a
three-pronged approach:
1.a physical or mental impairment that substantially limits one or more
major life activities (sometimes referred to in the regulations as an
“actual disability”), or
2.a record of a physical or mental impairment that substantially limited
a major life activity (“record of”), or
3.when a covered entity takes an action prohibited by the ADA
because of an actual or perceived impairment that is not both
transitory and minor (“regarded as”).
The ADAAA and the final regulations define a disability using a
three-pronged approach:
1.a physical or mental impairment that substantially limits one or more
major life activities (sometimes referred to in the regulations as an
“actual disability”), or
2.a record of a physical or mental impairment that substantially limited
a major life activity (“record of”), or
3.when a covered entity takes an action prohibited by the ADA
because of an actual or perceived impairment that is not both
transitory and minor (“regarded as”).
Americans with Disabilities Act
Definition of a person with a disability (continued)
As defined by the ADA, a disability is a physical or mental
impairment that substantially limits a major life activity, such as
caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, sitting, reaching, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking,
communicating, interacting with others, and working.
The final regulations also state that major life activities include the
operation of major bodily functions.
The final regulations state that major bodily functions include the
operation of an individual organ within a body system ( e.g., the
operation of the kidney, liver, or pancreas).
Definition of a person with a disability (continued)
As defined by the ADA, a disability is a physical or mental
impairment that substantially limits a major life activity, such as
caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, sitting, reaching, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking,
communicating, interacting with others, and working.
The final regulations also state that major life activities include the
operation of major bodily functions.
The final regulations state that major bodily functions include the
operation of an individual organ within a body system ( e.g., the
operation of the kidney, liver, or pancreas).
Americans with Disabilities Act
What is “substantially limit” a major life activity mean?
The individual must be substantially limited in performing a major life activity
as compared to most people in the general population.
The determination of whether an impairment substantially limits a major life
activity requires an individualized assessment.
An impairment need not prevent or severely or significantly limit a major life
activity to be considered “substantially limiting.” Nonetheless, not every
impairment will constitute a disability.
An individual need only be substantially limited, or have a record of a
substantial limitation, in one major life activity to be covered under the first
or second prong of the definition of “disability.”
What is “substantially limit” a major life activity mean?
The individual must be substantially limited in performing a major life activity
as compared to most people in the general population.
The determination of whether an impairment substantially limits a major life
activity requires an individualized assessment.
An impairment need not prevent or severely or significantly limit a major life
activity to be considered “substantially limiting.” Nonetheless, not every
impairment will constitute a disability.
An individual need only be substantially limited, or have a record of a
substantial limitation, in one major life activity to be covered under the first
or second prong of the definition of “disability.”
Americans with Disabilities Act
Do the final regulations require that an impairment last a particular length of
time to be considered substantially limiting?
In prong 3 (“regarded as” prong) ADAAA excludes from “regarded as”
coverage an actual or perceived impairment that is both transitory ( i.e., will
last fewer than six months) and minor.
An impairment that is episodic or in remission meets the definition of
disability if it would substantially limit a major life activity when active.
Employment discrimination can also include discriminating based on a
qualified individual’s relationship or association with another individual (such
as a spouse or child) with a known disability.
Do the final regulations require that an impairment last a particular length of
time to be considered substantially limiting?
In prong 3 (“regarded as” prong) ADAAA excludes from “regarded as”
coverage an actual or perceived impairment that is both transitory ( i.e., will
last fewer than six months) and minor.
An impairment that is episodic or in remission meets the definition of
disability if it would substantially limit a major life activity when active.
Employment discrimination can also include discriminating based on a
qualified individual’s relationship or association with another individual (such
as a spouse or child) with a known disability.
Americans with Disabilities Act
Reasonable Accommodation:
Making reasonable accommodation for the disability of a qualified applicant
or employee is key to the successful employment of people with disabling
conditions.
The ADA defines reasonable accommodation as efforts that may include
the following adjustments (these are major examples, but not a
comprehensive list):
1.Making the workplace structurally accessible to people with
disabilities.
2.Restructuring jobs to make best use of an individual’s skills.
Reasonable Accommodation:
Making reasonable accommodation for the disability of a qualified applicant
or employee is key to the successful employment of people with disabling
conditions.
The ADA defines reasonable accommodation as efforts that may include
the following adjustments (these are major examples, but not a
comprehensive list):
1.Making the workplace structurally accessible to people with
disabilities.
2.Restructuring jobs to make best use of an individual’s skills.
Americans with Disabilities Act
Reasonable Accommodation (continued):
3.Modifying work hours.
4.Reassigning an employee with a disability to an equivalent
position as soon as one becomes available.
5.Acquiring or modifying equipment or devices.
6.Appropriately adjusting or modifying examinations, training
materials, or policies.
7.Providing qualified readers for the blind or interpreters for the deaf.
Reasonable Accommodation (continued):
3.Modifying work hours.
4.Reassigning an employee with a disability to an equivalent
position as soon as one becomes available.
5.Acquiring or modifying equipment or devices.
6.Appropriately adjusting or modifying examinations, training
materials, or policies.
7.Providing qualified readers for the blind or interpreters for the deaf.
Americans with Disabilities Act
ADA and Drug Use:
The definition of an individual with a disability does not include anyone who
is currently engaged in the illegal use of drugs.
However, a person who has successfully completed a supervised drug
rehabilitation program or has otherwise been rehabilitated successfully, or
is participating in a supervised rehabilitation program is covered. ADA gives
additional authority to employers:
1.Employers may utilize drug testing to ensure that individuals who
have completed or are enrolled in rehabilitation programs remain
drug free.
2.Employers may prohibit the use of drugs and alcohol at the
workplace.
3.Hold all employees, regardless of disability, who abuse drugs or
alcohol to the same job performance criteria as other employees.
4.An employer will have to prove Financial or Resource Hardship in
order not to provide reasonable accommodations.
ADA and Drug Use:
The definition of an individual with a disability does not include anyone who
is currently engaged in the illegal use of drugs.
However, a person who has successfully completed a supervised drug
rehabilitation program or has otherwise been rehabilitated successfully, or
is participating in a supervised rehabilitation program is covered. ADA gives
additional authority to employers:
1.Employers may utilize drug testing to ensure that individuals who
have completed or are enrolled in rehabilitation programs remain
drug free.
2.Employers may prohibit the use of drugs and alcohol at the
workplace.
3.Hold all employees, regardless of disability, who abuse drugs or
alcohol to the same job performance criteria as other employees.
4.An employer will have to prove Financial or Resource Hardship in
order not to provide reasonable accommodations.
Harassment – Old Definition (Michigan)
Not all harassment by your employer is illegal despite being rude or mean.
Some important points to remember about harassment and whether it is
illegal are:
1.The harassment must be "severe and pervasive," meaning that it must be
substantially serious and/or frequent. Minor harassment is not actionable
(i.e. not illegal under employment law) and isolated incidents of harassment
are most likely not actionable unless extremely severe. For example, petty
insults or infrequent statements made in bad taste are not "severe and
pervasive," especially when not directed at the complaining employee.
Not all harassment by your employer is illegal despite being rude or mean.
Some important points to remember about harassment and whether it is
illegal are:
1.The harassment must be "severe and pervasive," meaning that it must be
substantially serious and/or frequent. Minor harassment is not actionable
(i.e. not illegal under employment law) and isolated incidents of harassment
are most likely not actionable unless extremely severe. For example, petty
insults or infrequent statements made in bad taste are not "severe and
pervasive," especially when not directed at the complaining employee.
Harassment – Old Definition (Michigan)
2.The harassment must be based on a protected characteristic, such as race,
sex, or disability, or a protected activity, such as reporting or opposing
discrimination based on one of those protected characteristics. Another
example of protected activity is reporting (or being about to report) a
violation (or suspected violation) of the law to a public body under the
Whistleblowers' Protection Act.
3.Harassment caused by things such as personal animosity, personality
conflicts or mean people is not actionable unless it is also based on
protected characteristics or protected activity.
4.The harassment must be unwelcome. For example, if an employee is not
offended by or participates in sexual joking engaged in by coworkers, the
coworkers' joking is not "unwelcome" and does not create a hostile work
environment.
2.The harassment must be based on a protected characteristic, such as race,
sex, or disability, or a protected activity, such as reporting or opposing
discrimination based on one of those protected characteristics. Another
example of protected activity is reporting (or being about to report) a
violation (or suspected violation) of the law to a public body under the
Whistleblowers' Protection Act.
3.Harassment caused by things such as personal animosity, personality
conflicts or mean people is not actionable unless it is also based on
protected characteristics or protected activity.
4.The harassment must be unwelcome. For example, if an employee is not
offended by or participates in sexual joking engaged in by coworkers, the
coworkers' joking is not "unwelcome" and does not create a hostile work
environment.
Harassment – Old Definition (Michigan)
5.Harassment that interferes with or is intended to interfere with an
employee's employment is also actionable, as are "intimidating" or
"offensive" work environments.
6.Requiring sexual favors for employment, promotion or other
employment benefits is sexual harassment and against Michigan
and federal law.
It is crucial that employers respond in a timely, objective manner in
regards to properly investigating complaints of harassment/sexual
harassment.
5.Harassment that interferes with or is intended to interfere with an
employee's employment is also actionable, as are "intimidating" or
"offensive" work environments.
6.Requiring sexual favors for employment, promotion or other
employment benefits is sexual harassment and against Michigan
and federal law.
It is crucial that employers respond in a timely, objective manner in
regards to properly investigating complaints of harassment/sexual
harassment.
Harassment Defined
750.411h Stalking; definitions; violation as misdemeanor;
penalties; probation; conditions; evidence of continued
conduct as rebuttable presumption; additional penalties.
Sec. 411h.
(c) “Harassment” means conduct directed toward a victim that
includes, but is not limited to, repeated or continuing unconsented
contact that would cause a reasonable individual to suffer emotional
distress and that actually causes the victim to suffer emotional
distress. Harassment does not include constitutionally protected
activity or conduct that serves a legitimate purpose.
750.411h Stalking; definitions; violation as misdemeanor;
penalties; probation; conditions; evidence of continued
conduct as rebuttable presumption; additional penalties.
Sec. 411h.
(c) “Harassment” means conduct directed toward a victim that
includes, but is not limited to, repeated or continuing unconsented
contact that would cause a reasonable individual to suffer emotional
distress and that actually causes the victim to suffer emotional
distress. Harassment does not include constitutionally protected
activity or conduct that serves a legitimate purpose.
Discriminatory Harassment Defined
What is Discriminatory Harassment?
Per Chapter 9 of the Civil Service Rules, discriminatory
harassment means unwelcome advances, requests for
favors, and other verbal or physical conduct or
communication based on religion, race, color, national
origin, age, sex, sexual orientation, height, weight,
marital status, partisan considerations, disability, or
genetic information under any of the following conditions:
Submission to the conduct or communication is made a term or
condition, either explicitly or implicitly, to obtain employment.
Submission to or rejection of the conduct or communication by a
person is used as a factor in decisions affecting the person’s
employment.
What is Discriminatory Harassment?
Per Chapter 9 of the Civil Service Rules, discriminatory
harassment means unwelcome advances, requests for
favors, and other verbal or physical conduct or
communication based on religion, race, color, national
origin, age, sex, sexual orientation, height, weight,
marital status, partisan considerations, disability, or
genetic information under any of the following conditions:
Submission to the conduct or communication is made a term or
condition, either explicitly or implicitly, to obtain employment.
Submission to or rejection of the conduct or communication by a
person is used as a factor in decisions affecting the person’s
employment.
Discriminatory Harassment Defined
What is Discriminatory Harassment?
Per Chapter 9 of the Civil Service Rules, discriminatory
harassment means unwelcome advances, requests for
favors, and other verbal or physical conduct or
communication based on religion, race, color, national
origin, age, sex, sexual orientation, height, weight,
marital status, partisan considerations, disability, or
genetic information under any of the following conditions:
The conduct or communication has the purpose or effect of
substantially interfering with a person’s employment or creating an
intimidating, hostile, or offensive employment environment.
What is Discriminatory Harassment?
Per Chapter 9 of the Civil Service Rules, discriminatory
harassment means unwelcome advances, requests for
favors, and other verbal or physical conduct or
communication based on religion, race, color, national
origin, age, sex, sexual orientation, height, weight,
marital status, partisan considerations, disability, or
genetic information under any of the following conditions:
The conduct or communication has the purpose or effect of
substantially interfering with a person’s employment or creating an
intimidating, hostile, or offensive employment environment.
Prohibited Behaviors
Listed below are general examples of discriminatory harassment,
which may include, but are not limited to:
1.Requests for sexual favors;
2.Talking about or calling attention to another person’s body or sexual
characteristics;
3.Unwelcome physical contact, including but not limited to hugging,
rubbing, touching, patting, pinching, or brushing another person’s
body;
Listed below are general examples of discriminatory harassment,
which may include, but are not limited to:
1.Requests for sexual favors;
2.Talking about or calling attention to another person’s body or sexual
characteristics;
3.Unwelcome physical contact, including but not limited to hugging,
rubbing, touching, patting, pinching, or brushing another person’s
body;
Prohibited Behaviors
4.Crude or offensive language, degrading words or comments,
sounds, innuendo, slurs, gestures, negative stereotypes, threats,
or jokes, whether communicated verbally, by electronic mail, or
otherwise, used to denigrate an individual’s age, color, disability,
height, genetic information, marital status, national origin, partisan
considerations, race, religion, sex, sexual orientation, or weight;
5.Displaying pictures, letters, objects, graffiti, screen savers,
cartoons, calendars, posters, or other visuals used to denigrate an
individual’s age, color, disability, height, genetic information,
marital status, national origin, partisan considerations, race,
religion, sex, sexual orientation, or weight; or
6.Continuing certain behavior after another person has objected to
that behavior.
4.Crude or offensive language, degrading words or comments,
sounds, innuendo, slurs, gestures, negative stereotypes, threats,
or jokes, whether communicated verbally, by electronic mail, or
otherwise, used to denigrate an individual’s age, color, disability,
height, genetic information, marital status, national origin, partisan
considerations, race, religion, sex, sexual orientation, or weight;
5.Displaying pictures, letters, objects, graffiti, screen savers,
cartoons, calendars, posters, or other visuals used to denigrate an
individual’s age, color, disability, height, genetic information,
marital status, national origin, partisan considerations, race,
religion, sex, sexual orientation, or weight; or
6.Continuing certain behavior after another person has objected to
that behavior.
Dual Relationships
oWhen a supervisor extends the boundary beyond the workplace,
and specifically the supervisory relationship, the supervisory creates
the potential for complications.
oDual relationships occur when a person assumes two or more roles
simultaneously or sequentially with a person seeking help (client) or
with a person being supervised.
What makes a dual relationship unethical?
1.The likelihood that it will impair the supervisor’s judgment.
2.The risk to the supervisee of exploitation.
oWhen a supervisor extends the boundary beyond the workplace,
and specifically the supervisory relationship, the supervisory creates
the potential for complications.
oDual relationships occur when a person assumes two or more roles
simultaneously or sequentially with a person seeking help (client) or
with a person being supervised.
What makes a dual relationship unethical?
1.The likelihood that it will impair the supervisor’s judgment.
2.The risk to the supervisee of exploitation.
Sexual Involvement, Sexual Harassment,
Harassment
Sexual Attraction
Sexual Harassment – Harassment in the workplace needs to be a pattern of behavior
or a single egregious incident.
‘ “Harassment” means deliberate comments, contacts, or gestures which intimidate or
offend an individual on the basis of that person’s race, religion, color, national origin,
marital status, sexual orientation, physical or mental disability, or any other
preference or personal characteristic, condition or status.’
Consensual (but Hidden) Sexual Relationships. “Sexual involvement may further a
human relationship, but it does so at the expense of the professional relationship”
(Rubin, 1990).
(FOR SUPERVISORS) Intimate Romantic Relationships. The American Psychiatric
Association, while discouraging all sexual involvement between clinicians and
trainees, “realized that romantic relationships often develop in professional settings
and that it in no way intended to stifle them.”
Harassment
Sexual Attraction
Sexual Harassment – Harassment in the workplace needs to be a pattern of behavior
or a single egregious incident.
‘ “Harassment” means deliberate comments, contacts, or gestures which intimidate or
offend an individual on the basis of that person’s race, religion, color, national origin,
marital status, sexual orientation, physical or mental disability, or any other
preference or personal characteristic, condition or status.’
Consensual (but Hidden) Sexual Relationships. “Sexual involvement may further a
human relationship, but it does so at the expense of the professional relationship”
(Rubin, 1990).
(FOR SUPERVISORS) Intimate Romantic Relationships. The American Psychiatric
Association, while discouraging all sexual involvement between clinicians and
trainees, “realized that romantic relationships often develop in professional settings
and that it in no way intended to stifle them.”
Sexual Involvement, Sexual Harassment,
Harassment
Michigan Definition of Sex Harassment:
Elliott-Larsen Civil Rights Act 453 of 1976 as Amended by Public Act
202 of 1980:
Sec 103(h) Discrimination because of sex includes sexual harassment which
means unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct or communication of a sexual nature when:
i.Submission to such conduct or communication is made a term or condition either
explicitly or implicitly to obtain employment, public accommodations or public
services, education, or housing.
ii.Submission to or rejection of such conduct or communication by an individual is used
as a factor in decisions affecting such individual's employment, public
accommodations or public services, education, or housing.
iii.Such conduct or communication has the purpose or effect of substantially interfering
with an individual's employment, public accommodations or public services,
education, or housing; or creating an intimidating, hostile, or offensive employment,
public accommodations, public services, education, or housing environment.
Harassment
Michigan Definition of Sex Harassment:
Elliott-Larsen Civil Rights Act 453 of 1976 as Amended by Public Act
202 of 1980:
Sec 103(h) Discrimination because of sex includes sexual harassment which
means unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct or communication of a sexual nature when:
i.Submission to such conduct or communication is made a term or condition either
explicitly or implicitly to obtain employment, public accommodations or public
services, education, or housing.
ii.Submission to or rejection of such conduct or communication by an individual is used
as a factor in decisions affecting such individual's employment, public
accommodations or public services, education, or housing.
iii.Such conduct or communication has the purpose or effect of substantially interfering
with an individual's employment, public accommodations or public services,
education, or housing; or creating an intimidating, hostile, or offensive employment,
public accommodations, public services, education, or housing environment.
Nonsexual Dual Relationships
Supervisor/Therapist (the supervisor will be challenged
at times to determine where supervision ends and
therapy begins).
Supervisor/Recovery (how does recovery issues, AA
attendance, sponsoring).
Professional/Personal (just how personal is too
personal)?
Supervisor/Therapist (the supervisor will be challenged
at times to determine where supervision ends and
therapy begins).
Supervisor/Recovery (how does recovery issues, AA
attendance, sponsoring).
Professional/Personal (just how personal is too
personal)?
NBCC Code of Ethics on Harassment
11.11. Certified counselors do not condone or engage in sexual harassment,
which is defined as unwelcome comments, gestures, or physical contact of a
sexual nature.
12.12. Through an awareness of the impact of stereotyping and unwarranted
discrimination (e.g., biases based on age, disability, ethnicity, gender, race,
religion, or sexual orientation), certified counselors guard the individual rights
and personal dignity of the client in the counseling relationship.
11.11. Certified counselors do not condone or engage in sexual harassment,
which is defined as unwelcome comments, gestures, or physical contact of a
sexual nature.
12.12. Through an awareness of the impact of stereotyping and unwarranted
discrimination (e.g., biases based on age, disability, ethnicity, gender, race,
religion, or sexual orientation), certified counselors guard the individual rights
and personal dignity of the client in the counseling relationship.
Sexual Relationships with Clients
National Board for Certified Counselors – Sexual, physical, or romantic intimacy can be engaged
within a minimum of 2 years after terminating the counseling relationship.
http://www.nbcc.org/Assets/Ethics/nbcc-codeofethics.pdf (Section A10).
American Counseling Association – 5 years (clients only). Must demonstrate forethought and
document no potential harm or exploitation will occur.
http://www.counseling.org/Files/FD.ashx?guid=ab7c1272-71c4-46cf-848c-f98489937dda (Clients:
Section A5. Colleagues/Students: Section F.3.b. no sex with only current supervisees)
American Psychological Association – 2 years … for those “most unusual circumstances”.
http://www.apa.org/ethics/code/index.aspx (Clients: regulation 10.08, Colleagues/Students:
regulation 7.07).
National Association of Social Workers – No sex, no time, no how … unless the social worker can
prove an exception to this prohibition is “warranted because of extraordinary circumstances” and the
social worker must prove it (NASW). 2 years (LCSW).
http://www.socialworkers.org/pubs/code/code.asp (Clients: regulation 1.09, Colleagues/Students:
regulation 2.07).
National Board for Certified Counselors – Sexual, physical, or romantic intimacy can be engaged
within a minimum of 2 years after terminating the counseling relationship.
http://www.nbcc.org/Assets/Ethics/nbcc-codeofethics.pdf (Section A10).
American Counseling Association – 5 years (clients only). Must demonstrate forethought and
document no potential harm or exploitation will occur.
http://www.counseling.org/Files/FD.ashx?guid=ab7c1272-71c4-46cf-848c-f98489937dda (Clients:
Section A5. Colleagues/Students: Section F.3.b. no sex with only current supervisees)
American Psychological Association – 2 years … for those “most unusual circumstances”.
http://www.apa.org/ethics/code/index.aspx (Clients: regulation 10.08, Colleagues/Students:
regulation 7.07).
National Association of Social Workers – No sex, no time, no how … unless the social worker can
prove an exception to this prohibition is “warranted because of extraordinary circumstances” and the
social worker must prove it (NASW). 2 years (LCSW).
http://www.socialworkers.org/pubs/code/code.asp (Clients: regulation 1.09, Colleagues/Students:
regulation 2.07).
Sexual Relationships with Clients
American Association for Marriage and Family Therapists – 2 years.
http://www.aamft.org/imis15/content/legal_ethics/code_of_ethics.aspx (Section 1.5).
Michigan Law – Sex with Clients
750.520e Criminal sexual conduct in the fourth degree;
misdemeanor.
(e) The actor is a mental health professional and the sexual contact occurs
during or within 2 years after the period in which the victim is his or her client
or patient and not his or her spouse. The consent of the victim is not a
defense to a prosecution under this subdivision. A prosecution under this
subsection shall not be used as evidence that the victim is mentally
incompetent.
American Association for Marriage and Family Therapists – 2 years.
http://www.aamft.org/imis15/content/legal_ethics/code_of_ethics.aspx (Section 1.5).
Michigan Law – Sex with Clients
750.520e Criminal sexual conduct in the fourth degree;
misdemeanor.
(e) The actor is a mental health professional and the sexual contact occurs
during or within 2 years after the period in which the victim is his or her client
or patient and not his or her spouse. The consent of the victim is not a
defense to a prosecution under this subdivision. A prosecution under this
subsection shall not be used as evidence that the victim is mentally
incompetent.
Dual Relationship Vignette
Ann is your intake coordinator at the residential facility you head (as Clinical
Director). One of the responsibilities you have given Ann is the scheduling
of overnight staff. She does not have any type of supervisory capacity other
than scheduling the overnight workers. It has come to your attention,
through one of the clients, that Ann has begun a romantic relationship with
one of the overnight workers. At this point you don’t do anything regarding
this information.
3 weeks later, one of the other overnight workers approaches you with a
complaint directed towards Ann. He states that she is playing favorites with
Rodney (the alleged boyfriend). He shows you the overnight schedule and
shows how Rodney has almost every weekend off, while the other 2
overnight workers fill in the majority of weekend shifts. He asks for your
help to correct this situation and does not want his name put out to Ann. He
states the reason for this favoritism by Ann towards Rodney is due to their
romantic involvement with each other, and the fact that Ann has weekends
off.
Ann is your intake coordinator at the residential facility you head (as Clinical
Director). One of the responsibilities you have given Ann is the scheduling
of overnight staff. She does not have any type of supervisory capacity other
than scheduling the overnight workers. It has come to your attention,
through one of the clients, that Ann has begun a romantic relationship with
one of the overnight workers. At this point you don’t do anything regarding
this information.
3 weeks later, one of the other overnight workers approaches you with a
complaint directed towards Ann. He states that she is playing favorites with
Rodney (the alleged boyfriend). He shows you the overnight schedule and
shows how Rodney has almost every weekend off, while the other 2
overnight workers fill in the majority of weekend shifts. He asks for your
help to correct this situation and does not want his name put out to Ann. He
states the reason for this favoritism by Ann towards Rodney is due to their
romantic involvement with each other, and the fact that Ann has weekends
off.
Dual Relationship Vignette Questions
1.Is there a dual relationship issue in this example, if so
what is it?
2.Since Ann has not publicly stated she and Rodney are
romantically involved, how do you go about dealing with
this situation?
3.If in your conversations with Ann, she does admit to this
relationship, what call do you make regarding their
relationship in regards to professional functioning?
1.Is there a dual relationship issue in this example, if so
what is it?
2.Since Ann has not publicly stated she and Rodney are
romantically involved, how do you go about dealing with
this situation?
3.If in your conversations with Ann, she does admit to this
relationship, what call do you make regarding their
relationship in regards to professional functioning?
LPC Clinical Supervision Standards
333.16109 Definitions; S to T. Sec. 16109.
2.“Supervision”, except as otherwise provided in this article, means the overseeing
of or participation in the work of another individual by a health professional
licensed under this article in circumstances where at least all of the following
conditions exist:
a.The continuous availability of direct communication in person or by radio,
telephone, or telecommunication between the supervised individual and a
licensed health professional.
b.The availability of a licensed health professional on a regularly scheduled
basis to review the practice of the supervised individual, to provide
consultation to the supervised individual, to review records, and to further
educate the supervised individual in the performance of the individual's
functions.
c.The provision by the licensed supervising health professional of
predetermined procedures and drug protocol.
333.16109 Definitions; S to T. Sec. 16109.
2.“Supervision”, except as otherwise provided in this article, means the overseeing
of or participation in the work of another individual by a health professional
licensed under this article in circumstances where at least all of the following
conditions exist:
a.The continuous availability of direct communication in person or by radio,
telephone, or telecommunication between the supervised individual and a
licensed health professional.
b.The availability of a licensed health professional on a regularly scheduled
basis to review the practice of the supervised individual, to provide
consultation to the supervised individual, to review records, and to further
educate the supervised individual in the performance of the individual's
functions.
c.The provision by the licensed supervising health professional of
predetermined procedures and drug protocol.
LPC Clinical Supervision Standards
R 338.1752 Application requirements; licensure by examination. Rule 2.
(3)(a)(i) For an applicant who has received a master’s degree in
counseling or student personnel work, not less than 3,000 hours accrued
in not less than a 2-year period, with not less than 100 hours of regularly
scheduled supervision accrued in the immediate physical presence of the
supervisor. The supervision begins upon the issuance of the limited
license and continue until the licensed professional counselor license is
issued.
R 338.1752 Application requirements; licensure by examination. Rule 2.
(3)(a)(i) For an applicant who has received a master’s degree in
counseling or student personnel work, not less than 3,000 hours accrued
in not less than a 2-year period, with not less than 100 hours of regularly
scheduled supervision accrued in the immediate physical presence of the
supervisor. The supervision begins upon the issuance of the limited
license and continue until the licensed professional counselor license is
issued.
LPC Clinical Supervision Standards
R 338.1757 Requirements to provide counseling supervision.
Rule 7.
1.Before providing counseling supervision, a licensed professional counselor shall comply
with 1 of the following:
a.For licensed individuals who were providing supervision on or before January 1, 2013,
have training in the function of counseling supervision and have acquired at least 3
years of experience in counseling.
b.For licensed individuals who began providing supervision after January 1, 2013, have
acquired at least 3 years of practice in counseling and have completed training in the
function of counseling supervision that complies with the requirements of subrule (2) of
this rule.
2.Training in the function of counseling supervision shall include both of the following
requirements:
a.Include 1 of the following as specialized training:
i.2 semester hours of graduate credit in training in counseling supervision.
ii.30 contact hours of workshop training in counseling supervision.
R 338.1757 Requirements to provide counseling supervision.
Rule 7.
1.Before providing counseling supervision, a licensed professional counselor shall comply
with 1 of the following:
a.For licensed individuals who were providing supervision on or before January 1, 2013,
have training in the function of counseling supervision and have acquired at least 3
years of experience in counseling.
b.For licensed individuals who began providing supervision after January 1, 2013, have
acquired at least 3 years of practice in counseling and have completed training in the
function of counseling supervision that complies with the requirements of subrule (2) of
this rule.
2.Training in the function of counseling supervision shall include both of the following
requirements:
a.Include 1 of the following as specialized training:
i.2 semester hours of graduate credit in training in counseling supervision.
ii.30 contact hours of workshop training in counseling supervision.
LPC Clinical Supervision Standards
b.The specialized training specified in subrule (2)(a) of this rule shall include
studies in all of the following topics:
i.Roles and functions of counseling supervisors.
ii.Models of counseling supervision.
iii.Mental health-related development.
iv.Methods and techniques in counseling supervision.
v.Supervisory relationship issues.
vi.Cultural issues in supervision.
vii.Group supervision.
viii.Legal and ethical issues in counseling supervision.
ix.Evaluation of supervisee and the supervision process.
b.The specialized training specified in subrule (2)(a) of this rule shall include
studies in all of the following topics:
i.Roles and functions of counseling supervisors.
ii.Models of counseling supervision.
iii.Mental health-related development.
iv.Methods and techniques in counseling supervision.
v.Supervisory relationship issues.
vi.Cultural issues in supervision.
vii.Group supervision.
viii.Legal and ethical issues in counseling supervision.
ix.Evaluation of supervisee and the supervision process.
LPC Clinical Supervision Standards
3.Before the onset of supervision, a licensed professional counselor shall provide a
supervisee with a written statement that addresses the licensee’s supervising
qualifications, including how the licensee complies with the requirements in
subrules (1) and (2) of this rule.
4.A licensee who provides counseling supervision shall keep ongoing
documentation, including, but not limited to, performance and clinical notes, for
each supervisee on the supervision being provided.
3.Before the onset of supervision, a licensed professional counselor shall provide a
supervisee with a written statement that addresses the licensee’s supervising
qualifications, including how the licensee complies with the requirements in
subrules (1) and (2) of this rule.
4.A licensee who provides counseling supervision shall keep ongoing
documentation, including, but not limited to, performance and clinical notes, for
each supervisee on the supervision being provided.
Bibliography
42-CFR-Part 2: Title 42--Public Health CHAPTER I--PUBLIC HEALTH SERVICE,
DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2--CONFIDENTIALITY OF
ALCOHOL AND DRUG ABUSE PATIENT RECORDS
http://www.access.gpo.gov/nara/cfr/waisidx_02/42cfr2_02.html
Association for Counselor Education and Supervision (ACES). (2001). Ethical Guidelines for
Counseling Supervisors. http://www.siu.edu/~epse1/aces/documents/ethicsnoframe.htm [online,
link no longer active]
Beahrs, J. O. & Gutheil, T. G. (2001). Informed consent in psychotherapy. The American Journal
of Psychiatry, 158(1), 4-10.
Bernard, J. M. & Goodyear, R. K. (2009). Fundamentals of Clinical Supervision, 4
th
Ed. Allyn and
Bacon, Boston, MA.
Disney, M. J. & Stephens, A. M. (1994). Legal Issues in Clinical Supervision. ACA Press,
Alexandria, VA.
Durham, T. G. (1996). The Supervisor’s Role in Ethical Decision-Making. The Counselor.
May/June, p. 7.
Duty to Warn and Protect (Michigan) was taken from the Michigan.gov website at:
http://www.legislature.mi.gov/(S(2sqpnp3gyzuqxjfcvqkg5d45))/mileg.aspx?
page=GetObject&objectname=mcl-330-1946 [Online] – Accessed 06/29/13.
42-CFR-Part 2: Title 42--Public Health CHAPTER I--PUBLIC HEALTH SERVICE,
DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2--CONFIDENTIALITY OF
ALCOHOL AND DRUG ABUSE PATIENT RECORDS
http://www.access.gpo.gov/nara/cfr/waisidx_02/42cfr2_02.html
Association for Counselor Education and Supervision (ACES). (2001). Ethical Guidelines for
Counseling Supervisors. http://www.siu.edu/~epse1/aces/documents/ethicsnoframe.htm [online,
link no longer active]
Beahrs, J. O. & Gutheil, T. G. (2001). Informed consent in psychotherapy. The American Journal
of Psychiatry, 158(1), 4-10.
Bernard, J. M. & Goodyear, R. K. (2009). Fundamentals of Clinical Supervision, 4
th
Ed. Allyn and
Bacon, Boston, MA.
Disney, M. J. & Stephens, A. M. (1994). Legal Issues in Clinical Supervision. ACA Press,
Alexandria, VA.
Durham, T. G. (1996). The Supervisor’s Role in Ethical Decision-Making. The Counselor.
May/June, p. 7.
Duty to Warn and Protect (Michigan) was taken from the Michigan.gov website at:
http://www.legislature.mi.gov/(S(2sqpnp3gyzuqxjfcvqkg5d45))/mileg.aspx?
page=GetObject&objectname=mcl-330-1946 [Online] – Accessed 06/29/13.
Bibliography
Flinders, C. A. & Shafranske, E. P. (2004). Clinical Supervision: A Competency-
Based Approach. American Psychological Association, Washington, DC.
Falvey, J. E. (2002). Managing clinical supervision: Ethical practice and legal risk
management. Pacific Groove: Wadsworth
Godlaski, T. M. & Leukefeld, C. G. (1996). Ethics of Supervision. The Counselor.
May/June, pp. 17 – 20.
Keith-Spiegel, P. & Koocher, G. P. (1985). Ethics in Psychology: Professional
Standards and Cases. McGraw-Hill, New York, NY.
Knapp, S. & Tepper, A. M. (1996). Legal and Ethical Issues in Supervision.
http://www.papsy.org/ Taken from The Pennsylvania Psychologist Quarterly. [online]
Knapp, S. & Vandecreek, L. (1997). Ethical and Legal Aspects of Clinical
Supervision. In Watkins, C. E. Jr., Handbook of Psychotherapy Supervision. New
York, John Wiley & Sons, Inc.
Flinders, C. A. & Shafranske, E. P. (2004). Clinical Supervision: A Competency-
Based Approach. American Psychological Association, Washington, DC.
Falvey, J. E. (2002). Managing clinical supervision: Ethical practice and legal risk
management. Pacific Groove: Wadsworth
Godlaski, T. M. & Leukefeld, C. G. (1996). Ethics of Supervision. The Counselor.
May/June, pp. 17 – 20.
Keith-Spiegel, P. & Koocher, G. P. (1985). Ethics in Psychology: Professional
Standards and Cases. McGraw-Hill, New York, NY.
Knapp, S. & Tepper, A. M. (1996). Legal and Ethical Issues in Supervision.
http://www.papsy.org/ Taken from The Pennsylvania Psychologist Quarterly. [online]
Knapp, S. & Vandecreek, L. (1997). Ethical and Legal Aspects of Clinical
Supervision. In Watkins, C. E. Jr., Handbook of Psychotherapy Supervision. New
York, John Wiley & Sons, Inc.
Bibliography
Lamb, D., Presser, N., Pfost, K., Baum, M., Jackson, R., & Jarvis, P. (1987).
Confronting Professional Impairment During the Internship: Identification, Due
Process, and Remediation. Professional Psychology: Research and Practice, 18, pp.
597-603.
Mead, D. E. (1990). Effective supervision: A task-oriented model for the mental health
professionals. Brunner/Mazel, Inc., New York, NY.
Powell, D. J. & Brodsky, A. (2004). Clinical Supervision in Alcohol and Drug Abuse
Counseling. Jossey-Bass Publishers, San Francisco, CA.
Seigel, M. (1979). Privacy, Ethics and Confidentiality. Professional Psychology, 10,
pp. 249-258.
Slovenko, R. (1980). Legal Issues in Psychotherapy Supervision. In A. K. Hess, Ed.,
Psychotherapy Supervision: Theory, Research and Practice. New York, NY. Wiley.
Lamb, D., Presser, N., Pfost, K., Baum, M., Jackson, R., & Jarvis, P. (1987).
Confronting Professional Impairment During the Internship: Identification, Due
Process, and Remediation. Professional Psychology: Research and Practice, 18, pp.
597-603.
Mead, D. E. (1990). Effective supervision: A task-oriented model for the mental health
professionals. Brunner/Mazel, Inc., New York, NY.
Powell, D. J. & Brodsky, A. (2004). Clinical Supervision in Alcohol and Drug Abuse
Counseling. Jossey-Bass Publishers, San Francisco, CA.
Seigel, M. (1979). Privacy, Ethics and Confidentiality. Professional Psychology, 10,
pp. 249-258.
Slovenko, R. (1980). Legal Issues in Psychotherapy Supervision. In A. K. Hess, Ed.,
Psychotherapy Supervision: Theory, Research and Practice. New York, NY. Wiley.
Bibliography
Stoltenberg, C. D., McNeil, B., & Delworth, U. (1998). IDM Supervision: An Integrated
Developmental Model for Supervising Counselors and Therapists. Jossey-Bass
Publishers, San Francisco, CA.
Multiple legal sections on confidentiality, informed consent, and other standards were
taken from the Michigan.gov Public Health code (counseling section) website:
http://www.legislature.mi.gov/(S(wytqr5unsvlbdprpgsmsfwru))/mileg.aspx?
page=getObject&objectName=mcl-368-1978-15-181 [Online] – Accessed 06/29/13.
The definition of “ Sexual Harassment” was taken from Michigan.gov at:
http://www.michigan.gov/mdcr/0,1607,7-138-4954_4997-16281--,00.html [Online –
Accessed 06/29/13.
Portions of the duty to warn material has been reproduced here with permission from
http://mentalhelp.net/, Copyright 2000 Mental Health Net. All rights reserved. [online]
Understanding the ADA. (2000). Eastern Paralyzed Veterans Association. 75-20
Astoria Boulevard, Jackson Heights, NY 11370-1177. 718-803-EVPA.
Stoltenberg, C. D., McNeil, B., & Delworth, U. (1998). IDM Supervision: An Integrated
Developmental Model for Supervising Counselors and Therapists. Jossey-Bass
Publishers, San Francisco, CA.
Multiple legal sections on confidentiality, informed consent, and other standards were
taken from the Michigan.gov Public Health code (counseling section) website:
http://www.legislature.mi.gov/(S(wytqr5unsvlbdprpgsmsfwru))/mileg.aspx?
page=getObject&objectName=mcl-368-1978-15-181 [Online] – Accessed 06/29/13.
The definition of “ Sexual Harassment” was taken from Michigan.gov at:
http://www.michigan.gov/mdcr/0,1607,7-138-4954_4997-16281--,00.html [Online –
Accessed 06/29/13.
Portions of the duty to warn material has been reproduced here with permission from
http://mentalhelp.net/, Copyright 2000 Mental Health Net. All rights reserved. [online]
Understanding the ADA. (2000). Eastern Paralyzed Veterans Association. 75-20
Astoria Boulevard, Jackson Heights, NY 11370-1177. 718-803-EVPA.
Bibliography
Information on the standards of harassment in Michigan was taken from Fett &
Fields, Employment Law Attorney’s blog: http://www.fettlaw.com/blog/2013/06/is-
harassment-by-your-employer-illegal.shtml
Information on the Michigan Medical Records Act was taken from:
http://www.legislature.mi.gov/(S(wduxmheo4xa5u245bpov4mja))/mileg.aspx?
page=getobject&objectname=mcl-Act-47-of-2004&query=on&highlight=333.26261
Many different Michigan regulations were stated in this PPT and taken from Chapter
333: http://www.legislature.mi.gov/(S(asizywmqpusgwc551tzoib45))/mileg.aspx?
page=getObject&objectName=mcl-chap333
Definition of Discriminatory Harassment was found:
http://www.michigan.gov/lara/0,4601,7-154-10573_35828_59075-346213--,00.html
Information on the standards of harassment in Michigan was taken from Fett &
Fields, Employment Law Attorney’s blog: http://www.fettlaw.com/blog/2013/06/is-
harassment-by-your-employer-illegal.shtml
Information on the Michigan Medical Records Act was taken from:
http://www.legislature.mi.gov/(S(wduxmheo4xa5u245bpov4mja))/mileg.aspx?
page=getobject&objectname=mcl-Act-47-of-2004&query=on&highlight=333.26261
Many different Michigan regulations were stated in this PPT and taken from Chapter
333: http://www.legislature.mi.gov/(S(asizywmqpusgwc551tzoib45))/mileg.aspx?
page=getObject&objectName=mcl-chap333
Definition of Discriminatory Harassment was found:
http://www.michigan.gov/lara/0,4601,7-154-10573_35828_59075-346213--,00.html
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