Transcript current trends in mental health ethics and professional liability

CURRENT TRENDS IN
MENTAL HEALTH ETHICS
AND PROFESSIONAL
LIABILITY
Gerald P. Koocher, Ph.D., ABPP
April 25, 2013
Outline
2
Who gets in trouble and why?
 Assessing and reducing risk of ethical
complaints.
 Special considerations for military
psychologists.
 Remote delivery of psychological services.
 Internet exposure and social media.
 Ethical perils of expert witnessing.

Copyright G. P. Koocher (2013)
3
The View
from the APA Insurance Trust
Understanding your risks and
identifying defensive strategies
Copyright G. P. Koocher (2013)
Among Policy Holders in 2011
4
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Estimated odds of a licensing board complaint


0.58% (.0058) up from 0.2% in 2004
Estimated odds of a civil law suit

0.35% (.0035) up from 0.1% in 2004
Copyright G. P. Koocher (2013)
5
Who gets in trouble and why?
Copyright G. P. Koocher (2013)
Most Common Litigation Triggers
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Improper care/evaluation
Credit/billing impropriety
Non-sexual dual relationship/boundary
violations
Suicides
Sexual abuses - dual relationship/boundary
violations
Employment practices
Copyright G. P. Koocher (2013)
Significant Claims/ New Trends
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Boundary Violations
Suicide
Wrongful
Improper
death
treatment
Homicide
Dual Relationship
Billing – Medicare Investigations
Copyright/Trademark Infringement (e.g., website
images and music)
Copyright G. P. Koocher (2013)
Psychologist accused of sexual
assault on a client

http://www.coloradoconnection.com/news/story.asp
x?id=844852#.UO2f0HddB8F
COLORADO SPRINGS, COLO. -- A licensed psychologist has been
arrested on the charge of Sexual Assault on a Client by a
Psychotherapist, according to Colorado Springs Police.
Dr. Janice Husted was arrested on the charge after a police
investigation. A young man told police that a sexual
relationship developed between him and Husted, his
psychologist.
Police said the man was assigned to receive counseling related to
his combat deployments during the summer of 2010. The sexual
relationship, according to what the victim told police, started in
Aug. 2011 and continued until Oct. or Nov. 2011. The man said
the psychologist told him on several occasions that they had to
be careful to not appear that they were on dates, police said.
Police said the man told the psychologist he did not want to have
a secret relationship but she said they couldn't have an open
relationship until two years passed. After saying he did not
want to wait two years, the psychologist ended the relationship,
police said.
Sexual Assault on a Client by a Psychotherapist is a Class 4
Felony.
Some things don’t change
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
Want to cut your risk of an “adverse incident”
by 95%?
 Don’t
engage in sexual with current or former clients
or their relatives.
 Don’t do anything that someone might mistake for a
“forensic assessment,” without adequate training,
informed consent, and thorough data collection.
 Don’t switch roles in a professional relationship
without well documented consent by all parties.
Copyright G. P. Koocher (2013)
Barter counseling for bathroom repair (NE Grand Rapids )
Reply to: [email protected]
Date: 2008-12-07, 12:09PM EST
11
•
“My husband is a capable and effecive counselor,
licensed...but he is not good at home repairs/construction. I
will trade his expertise for your time with him as a counselor
if you can help us with tub and tile repair and plumbing. We
had a termite problem that we fixed but the place needs a
new floor and other stuff...if you are struggling with
depression or bipolar, he is your man...maybe your spouse,
child, etc. He is truly an excellent counselor. We have our
own non-profit and give to others without charging so our
financial situation is limited, but looking to trade! thanks.”
Location: NE Grand Rapids
PostingID: 948491022
Copyright G. P. Koocher (2013)
Personal Risk Assessment
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Consider:
Patient
Risk Characteristics
Situation or Contextual Risk
Potential Disciplinary Consequences
Modified by:
Therapist’s
“Personal Toolbox of
Skills”
Copyright G. P. Koocher (2013)
Patient Risk Characteristics
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Nature of Problem
History
Diagnosis and Level of Function
Expectations
Therapeutic readiness
Financial Resources Including Insurance
Coverage
Litigiousness/court involvement
Social Support Network
Copyright G. P. Koocher (2013)
Situational Risk Factors
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Nature of relationship
 Therapeutic alliance
Real world consequences
Setting
 Rural versus urban
 Solo practice versus institutional practice
Type of service requested
 CBT
 Family therapy
 Forensic Evaluation
Copyright G. P. Koocher (2013)
Therapist’s personal toolbox of skills
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Psychological makeup/personal issues
 Personal
and professional stress levels
Training background/qualifications
 Experience
 Resources

 Consultation
 Access
to other providers
 Involvement with professional groups
Copyright G. P. Koocher (2013)
So what should I do?
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Know the ethical and legal standards that apply.
Pay attention to practice guidelines.
Provide comprehensive informed consent.
Conduct a conservative evaluation of your
competence with clinical populations and activities:
 Intellectual
competence
 Technical competence
 Emotional competence
Copyright G. P. Koocher (2013)
Case 1.1
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Ms. Smith, a 45 year old mother of 2, seeks
treatment because of distress (including nightmares)
related to a chronically ill mentally disabled child.
During session 3 she expresses anxiety about
upcoming testimony in a licensing complaint against
a former therapist who reportedly made sexually
suggestive phone calls to her.
During session 4 she mentions that she is concurrently
in psychoanalysis (of ten years duration) with and
that she once impulsively removed all her clothes in
an analytic session.
Copyright G. P. Koocher (2013)
Citation
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

Your diagnosis and next steps?
Geist, Richard A.(2009) 'Empathy, Connectedness, and
the Evolution of Boundaries in Self Psychological
Treatment', International Journal of Psychoanalytic Self
Psychology, 4: 2, 165 — 180.
DOI: 10.1080/15551020902730273
 URL: http://dx.doi.org/10.1080/15551020902730273

Copyright G. P. Koocher (2013)
High Risk Patients
Page 19
 Patients
who organize their internal object
world into hated and adored objects
 Borderline Personality Disorder
 Narcissistic Personality Disorder
 Dissociative Identity Disorder (MPD)
 PTSD (complex)
 Patients who were abused as children or
are in abusive relationships
Copyright G. P. Koocher (2013)
Case 1.2
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James Holmes and Lynne Fenton, M.D.
A University of Colorado psychiatrist told campus police a month before the
Aurora movie theater attack that James Holmes had homicidal thoughts and
was a public danger, according to records unsealed April 4, 2013.
Lynne Fenton, a psychiatrist at the Denver campus, told police that Holmes
had also “threatened and harassed her via email/text messages” in June
2012. He is standing trial for the July 20 shooting rampage that killed 12
and injured 70 during a midnight premiere of the latest Batman movie.
Soon after the shooting, university police said they had not had any contact
with Holmes, a graduate student doing neuroscience research. But a search
warrant affidavit released Thursday revealed that an officer had told
investigators that Fenton had contacted her to report “his danger to the
public due to homicidal statements he had made.”
Copyright G. P. Koocher (2013)
Higher Risk Patients
Page 21
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Potentially suicidal patients
 Conduct
frequent risk assessment utilizing
current, evidence based methods essential
Potentially violent patients
 Patients involved in unrelated lawsuits
 Patients with recovered
memories of abuse

Copyright G. P. Koocher (2013)
Forensic Traps
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Just trying to help a friend, client, etc.
The “vacation time referral”
Anticipating litigation
 (I

didn’t see that coming!)
To whom do I owe what duties
 Collaterals
 Clients
for limited purpose
Copyright G. P. Koocher (2013)
Standards of care:
the “good enough clinician”
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Mistake or “judgment call” error
 People
cannot avoid mistakes
(but a mistake ≠ negligence)

Departure from standard of care
 Many

practitioners would not do it
Gross negligence
 Extreme
departure from usual professional conduct
most practitioners would not do it
Copyright G. P. Koocher (2013)
Understanding Professional
Liability Insurance
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Occurrence
Policies
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2015
2014
Claims Made
Policies
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Pay once, covered
“forever”
Must keep coverage
current
2013
2012
2014
2011
2015
Tail coverage
(trailing claims)
Nose coverage
(prior acts)
2016
2017
Copyright G. P. Koocher (2013)
25
Risks for Military Psychologists
Copyright G. P. Koocher (2013)
APA PENS Task force Report (2005)
www.apa.org/releases/PENSTaskForceReportFinal.pdf
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
Psychological Ethics in National Security
 Torture,
cruel, inhumane, or degrading treatment of
detainees is NEVER ethical.
 Psychologists have an obligation to report such conduct.
 Psychologists serving in roles that support interrogation
never use health care information to the detainee’s
detriment.
 Psychologists must obey US law and clarify their roles
with care.
Copyright G. P. Koocher (2013)
Subsequent events
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Psychologists for an Ethical APA
 Membership vote
 2010 Code revisions
 Harassment of some individual
psychologists
 Joint task force underway sponsored by
Divisions 19 (Military Psychology) and
Division 48 (Peace Psychology)

Copyright G. P. Koocher (2013)
2010 Ethics Code Revisions
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1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing
Legal Authority
If psychologists’ ethical responsibilities conflict with law, regulations, or other
governing legal authority, psychologists clarify the nature of the conflict, make
known their commitment to the Ethics Code and take reasonable steps to resolve
the conflict consistent with the General Principles and Ethical Standards of the
Ethics Code. Under no circumstances may this standard be used to justify or
defend violating human rights.
1.03, Conflicts Between Ethics and Organizational Demands
If the demands of an organization with which psychologists are affiliated or for
whom they are working are in conflict with this Ethics Code, psychologists clarify
the nature of the conflict, make known their commitment to the Ethics Code, and
take reasonable steps to resolve the conflict consistent with the General
Principles and Ethical Standards of the Ethics Code. Under no circumstances may
this standard be used to justify or defend
human rights.
Copyright violating
G. P. Koocher (2013)
Senate Armed Services Committee Report of 4/22/09
John Bruce Jessen and James Elmer Mitchell
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Mitchell and Jessen & Associates allegedly
worked for the CIA to create “enhanced
interrogation” programs. Their company has
allegedly played a role in the use of abusive
interrogation techniques, beginning with AZ
and KSM in Thailand in 2002.
Mitchell and Jessen are not APA members.
Jessen is licensed in Idaho and Mitchell is
licensed in Texas.
http://www.nytimes.com/2010/11/14/us/14tt
lawsuit.html?_r=0
Copyright G. P. Koocher (2013)
30
Remote Service Delivery
Tele-health and Tele-psychology
Services
Copyright G. P. Koocher (2013)
Service Delivery Trends
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At least 69% of all professional psychologists have provided
services by phone
At least 75% have offered services to residents of a state
other than where they hold a license.
The Office for the Advancement of Telemedicine (HHS) has
identified state license limitations as a major barrier to the
development of telehealth services.
Both nursing and medicine have plans to deal with interstate
practice issues on a national basis.
The China American Psychoanalytic Association (CAPA) has
organized training programs involving seminars,
supervision, and psychoanalysis via Skype.
Copyright G. P. Koocher (2013)
Psychology’s Inter-jurisdictional Practice
Has Lagged Behind
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
ASPPB
 Certificate
of Professional Qualification
 Inter-jurisdictional Practice Certificate

APA
 Revised
model Licensing law
 Funding for the joint task force on telehealth practice
(APA, ASPPB, and APAIT) has been funded for a
third year.
 See Guidelines for
Copyright G. P. Koocher (2013)
Ethical Considerations on Remotely
Delivered Services
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APA Ethics Committee Opinion:
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The APA has not chosen to address teletherapy directly in its ethics code
and has created no rules prohibiting such services.
The APA Ethics Committee has consistently stated a willingness to address
complaints regarding such services on a case-by-case basis, while
directing clinicians to apply the same standards used in ‘‘emerging areas
in which generally recognized standards for preparatory training do not
yet exist,’’ by taking ‘‘reasonable steps to ensure the competence of
their work and to protect patients, clients, students, research participants,
and others from harm’’ (American Psychological Association, 2010,
2.01e).
 http://www.apapracticecentral.org/goodpractice/secure/telehealth.pdf
Copyright G. P. Koocher (2013)
Online Ethical and
Risk Management Challenges
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

Legal & Jurisdictional
Ethical & Risk Management
Efficacy
 Cost/benefit remote vs. in-person
 Informed Consent
 Safety Concerns
 Emergencies
 Resources
 Confidentiality
 Service Reimbursement

Copyright G. P. Koocher (2013)
Primary Ethical Issues in Remotely
Delivered Services
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
The three C’s:
Consent
Competence
Confidentiality
Copyright G. P. Koocher (2013)
Ethical Principles
36

2.01 Boundaries of Competence
(a) psychologists provide services only within the boundaries of their
competence
(c) Psychologists planning to provide services…involving techniques
and technologies new to them undertake relevant education, training,
supervised experience, consultation or study.
(e) In those emerging areas in which generally recognized standards
for preparatory training do not yet exist, psychologists nevertheless
take reasonable steps to ensure the competence of their work and to
protect clients/patients, students, supervisees, research participants,
organizational clients, and others from harm.
Copyright G. P. Koocher (2013)
Ethical Principles
37

3.10 (a) Informed Consent
When psychologists conduct research or provide
assessment, therapy, counseling, or consulting services
in person or via electronic transmission or other forms
of communication, they obtain the informed consent
of the individual or individuals using language that is
reasonably understandable to that person or persons
except when conducting such activities without consent
is mandated by law or governmental regulation or as
otherwise provided in this Ethics Code.
Copyright G. P. Koocher (2013)
Ethical Principles
38

Section 4: Privacy & Confidentiality
 4.01
Psychologists have a primary
obligation and take reasonable precautions
to protect confidential information obtained
through or stored in any medium…
 4.02 Psychologists discuss with persons…(1)
the relevant limitations to confidentiality
Copyright G. P. Koocher (2013)
Legal & Jurisdictional Issues
39

Federal Government Policy: Health Licensing Board
Report to Congress, HRSA, HHS, 2011 (HSRA)

Federal government has recognized the importance of
use of electronic technology and provision of telehealth
services.
 Federal
Agencies Efforts to promote telehealth
 Fed benefits for remote services Medicaid,
Medicare
 Interstate practice is essential for full benefits
 Best way to accomplish this is by voluntary compact
between state licensing boards

Grants for medical and nursing boards
Copyright G. P. Koocher (2013)
Legal & Jurisdictional Issues
40

Federal Government Policy: Health Licensing
Board Report to Congress, HRSA, HHS, 2011
(HSRA)
 “If collaboration between states is unable to
develop effective licensure polices to reduce
barriers to electronic practice across state lines
within the next 18 months, then Congress should
intervene to ensure that Medicare and
Medicaid beneficiaries are not denied the
benefits of e-care.”
Copyright G. P. Koocher (2013)
Legal & Jurisdictional Issues
41

Federal Government Policy: Health
Licensing Board Report to Congress,
HRSA, HHS, 2011 (HSRA)

“In the absence of specific agreements…states
may not discipline healthcare professionals not
licensed in their state if patient harm occurs as the
result of the provision of health care services by
an out of state practitioner.” (HSRA)
Copyright G. P. Koocher (2013)
Case 1.3
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A California migraine sufferer was referred by her California physician to an
Illinois headache specialist. The California patient traveled to see the Illinois
physician and his associate at a headache clinic in Illinois. The patient's
headaches subsided and she went back to California armed with a 30-day
prescription for various medications. After her return to California she had
numerous telephone conferences with the headache specialist (for which she
was billed a small fee each time). When her medication ran out, her Illinois
doctors arranged to have additional medication mailed to her and on other
occasions called prescriptions directly to California pharmacies near the
patient's home. Unfortunately, the medications prescribed by the Illinois
doctors rendered the patient so confused and disoriented that she became
dysfunctional. After hospitalization at a California detoxification facility she
filed an action for medical malpractice.
http://law.justia.com/cases/california/caapp4th/49/1056.html
Copyright G. P. Koocher (2013)
Federal Courts: Minimum Contacts Rule
Prince vs. Urban
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“In short, we should decline to adopt a rule to the
effect that when out-of-state doctors elect to
practice medicine in California by telephone and
mail, they will be immune from suit here.”
Prince v. Urban (1996) 49 Cal.App.4th 1056 [57
Cal.Rptr.2d 181]
Copyright G. P. Koocher (2013)
Tentative Conclusions
44
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Unless a psychologist actively promotes services in
an interstate manner, forum state licensing boards
will be unable to gain jurisdiction.
What level of marketing is required to give a forum
state jurisdiction is not yet clear.
Websites are unlikely to be seen as promotional.
Psychologists who actively market themselves on
an interstate basis are taking risk.
Extradition is very unlikely.
Copyright G. P. Koocher (2013)
Tentative Conclusions
45
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Psychologists who actively market non-therapeutic
services such as coaching with appropriate
disclaimers, appropriate case selection, and
appropriate referrals when issues require therapy
will also be safer, providing that their language
describes what they actually do.
Psychologists who provide services across state
lines will be subject to review by their own state
licensing boards.
Copyright G. P. Koocher (2013)
46
What not to do….
Copyright G. P. Koocher (2013)
Just a few sample options
for data collection
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CriminalSearches
Detectivemagic
Facebook
Familywatchdog
Fundrace
Google
Guidestar
Intelius
Netronline
NSOPR.gov
Peoplelookup
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Pipl
Searchsystems.net
Spock
Spokeo
Vitalrec.com
Whitepages
Whowhere
Whois
Zabasearch
Zoominfo
47
Copyright G. P. Koocher (2013)
What about searching?
48
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Your clients will search for information about you.
What (if anything) does our ethics code have to say
about using electronic media and search engines to
check on clients?
Copyright G. P. Koocher (2013)
Case 1.4
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Help, I’ve been Yelped
Sr. Frank Lee Stunned, a psychologist with more
than 20 years of experience working in community
agencies, and now private practice, thought he’d
dealt with almost everything. He’s run a successful
small business despite difficulties with third party
payers over they years.
A client alerted Dr. Stunned that he’d seen a
negative comment about him while canning
Yelp.com for restaurant reviews.
Copyright G. P. Koocher (2013)
I’ve been Yelped
50
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The review posted by “Still in the Dumps,” reported an
increase in her depression and anxiety symptoms after
months of working with Dr. Stunned, who she described as
“insensitive, incompetent, and abusive.” She noted that
she’d always felt uncomfortable about the way he seemed
focused on her breasts and wanted to warn other women
about him.
Dr. Stunned suspects that “Still in the Dumps” is a
borderline patient who he had to terminate because of
outrageous demands for more contact and noncompliance
with treatment. After the difficult termination she’d
muttered about getting even.
Copyright G. P. Koocher (2013)
I’ve been Yelped
51
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Dr. Stunned googled himself and the first search
item returned is the Yelp review. He’s anxious,
dismayed, and furious. He wants to sue Yelp and the
client.
Complaints and threats to Yelp won’t help.
Attempting to seek a libel judgment may make
things worse.
Copyright G. P. Koocher (2013)
What can you do?
52
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Monitor your web presence
Use an optimized professional web site and similar
publicity to suppress adverse search returns
Hire an attorney to raise defamation claims with the
website
Consider contractual prevention strategies
Consider the services or a reputation protection company
(e.g., Reputationdefender.com and Medical Justice.com)
Solicit positive reviews from colleagues
Try to ignore them and hope they won influence consumers.
Copyright G. P. Koocher (2013)
I’ve been Yelped
53

Response strategies
 Respond
on the site without breaching confidentiality.
 Remind readers that there are two sides to every story
and that you owe all clients a duty of confidentiality
 Don’t mention any specifics or identifying information
about the patient.
 Develop an active positive branding program
 Collect consumer satisfaction data.
 Don’t make promises you can’t keep.
 Remember that the Internet is forever
Copyright G. P. Koocher (2013)
Professional Web Sites:
When you control the message
54

Access to Information
Marketing your practice/products
 Directions to your office
 Downloads

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
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Access to Documentation
Efficient communication
Effective promotion of psychologist’s skills, experience,
and competencies/specialties.
Copyright G. P. Koocher (2013)
But beware…
55
Site security
 Boundary issues
 Appropriate marketing
 Blogging challenges
 File transfer and e-mail confidentiality

Copyright G. P. Koocher (2013)
Facebook, LinkedIn, Twitter, Google
Voice, What’s Next?
56
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Security Issues
Retention of Files
Friends of Friends boundary issues
Fan?
Harassment
Stalking
PHI
Failure to terminate
Copyright G. P. Koocher (2013)
Do you Need a Friending Policy
57
Sample per APAIT:
“I do not accept friend or contact requests from
current or former clients on any social networking
site (Facebook, LinkedIn, etc.). I believe that adding
clients as friends or contacts on these sites can
compromise your confidentiality and our respective
privacy. It may also blur the boundaries of our
therapeutic relationship. If you have questions about
this, please bring them up when we meet and we
can talk more about it.”
Copyright G. P. Koocher (2013)
APAIT Suggestion on “Following” Policy
58
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“I publish a blog on my website and I post
psychology news on Twitter. I have no
expectation that you as a client will want to
follow my blog or Twitter stream. However, if
you use an easily recognizable name on Twitter
and I happen to notice that you’ve followed me
there, we may briefly discuss it and its potential
impact on our working relationship.
My primary concern is your privacy.”
Copyright G. P. Koocher (2013)
More on Following
59

“Note that I will not follow you back. I only
follow other health professionals on Twitter
and I do not follow current or former clients on
blogs or Twitter. My reasoning is that I believe
casual viewing of clients’ online content
outside of the therapy hour can create
confusion in regard to whether it’s being done
as a part of your treatment or to satisfy my
personal curiosity”
Copyright G. P. Koocher (2013)
60
Expert Witness Activity
Are you ready to consult as an expert?
Copyright G. P. Koocher (2013)
The culture of litigation:
Lawyers’ view
61
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Attorneys function as advocates for their clients.
 Goal:

achieving a best possible outcome.
The attorney’s income may link directly to the
outcome of the case.
 Example:

contingent fee arrangements.
Two rules for success in litigation:
 1)
Don’t disclose everything you know unless legally
required to do so.
Copyright G. P. Koocher (2013)
Can they do that?
62

The principle of advocacy allows lawyers to
shop for experts.
 Discovery

rules vary by jurisdiction and context.
Implicit ethical conflict for psychologists:
 No
attorney will hire an expert whose views do
not advance their client’s cause.
Copyright G. P. Koocher (2013)
The Forensic Psychologist’s View
63
We serve as advisors to the court on scientific
principles, research data, professional
standards.
 We should take an integrity-laden stance.

 You
can buy my professional time, but you cannot
purchase my expert opinions.

I should expect any opposing counsel to have
my discovered work reviewed by his/her own
experts.
Copyright G. P. Koocher (2013)
Serving as a disclosed expert
64



Everything you have to
say will be on the record
and open to scrutiny.
You will be crossexamined.
Those who disagree with
you will seek to discredit
you with multiple
strategies, hoping you’ll
screw up.
Copyright G. P. Koocher (2013)
The Seduction Paradigm
65


Only the psychologist’s own integrity stands in the
way.
Risk of public embarrassment during cross
examination does exist.
 Tendencies
to pre-trial settlements and protections
associated with expert testimony given in court tend to
minimize such hazards and embolden some
entrepreneurial experts.

After all, any expert is entitled to his/her own
opinion.
Copyright G. P. Koocher (2013)
Temptations
66

How can I provide valid expertise and
 Risk
continuity of employment?
 Avoid becoming a “partisan expert?”
Copyright G. P. Koocher (2013)
Invisible psychologist/stealth expert
67


The consultant who will never testify and will remain
invisible to legal discovery.
Roles:
 Review
case materials
 Consult to counsel on strategies for additional data
requests, cross examination, jury selection, etc.

The slope becomes more slippery for some who
compromise principle while invisible.
Copyright G. P. Koocher (2013)
The Key Ethical Challenges
68


Is it ethically permissible to help discredit the work
of a colleague, raise reasonable doubt, or shift the
preponderance of evidence while remaining
invisible?
Yes, if one can retain professional integrity and
scientific rigor.
 The
social value of presenting valid psychological data
in the justice system depends on respecting the rules of
that system.
Copyright G. P. Koocher (2013)
The Key Ethical Challenges
69

Avoid the trap of confirmatory bias
 Looking
only for the evidence that supports “our side.”
 Providing the “whole truth,” to the extent we know it.
Copyright G. P. Koocher (2013)
“Land!”
Costs of invisibility
70


The invisible
psychologist may
lose control over
how counsel uses (or
misuses) the expert
advice you provide.
Your invisibility may
not last forever.
Copyright G. P. Koocher (2013)
What about my colleagues’ feelings?
71


If you plan to step into
the forensic arena, you
must prepare to defend
your expert qualifications
and opinions with
evidentiary rigor…
…or face the
consequences.
Copyright G. P. Koocher (2013)