The APA Insurance Trust has been a major provider of professional liability coverage for psychologists for many years, including an active risk management program to help psychologists avoid complaints and lawsuits. The themes in this article make up the core of a new Trust workshop entitled “Hot Topics in Psychological Practice.” We hope the advice will be helpful.
“Who owns the kid?”
Psychologists often find themselves in the middle of a “war” waged by divorcing parents over their children. Conflicts arise over education, health care, parenting styles and what we call “ownership of the child.”
While parents are often well meaning, the risk to a psychologist can be quite serious. Advocacy problems, role conflicts and legal risk abound when parents create a battlefield filled with landmines for the well-intended but uninformed or unaware psychologist. The following points are important:
* If possible, get consent from both parents when treating a minor. This starts the relationship off as a child-oriented venture with no appearance of advocacy for one parent over the other.
* Make it clear that for good, safe treatment to take place, you cannot take sides in their struggles. Get a contractual agreement that parents will not seek access to treatment records. (See www.apait.org; resources for a model.)
* Be aware of state laws on minors’ rights. For example, in California under special circumstances a child over 12 can consent to treatment, which would provide the child control over release of information. Even if state law allows you to provide care to the minor without the consent of parents, use good risk management. Know the law, make use of regular consultation, get good informed consent and have good records when treating under a legal exception to normal consent requirements.
* If either parent objects to your treatment, try to resolve the concerns. If resolution fails, terminate and refer or suggest that continuation of treatment can only be mandated by the court. While the minor may need continued care, proceeding over the objection of one of the parents can be dangerous.
* As a treating therapist, avoid any forensic role. While clinical observations might be of value to a forensic mental health professional, such as a child custody evaluator, expressing opinions on custody, visitation or parenting capacity to any representative of the court is a common subject of licensing board complaints. The best way to avoid problems is defining your role at the outset through informed consent that is clear and agreed to by both parents.
“Who owns the record?”
The Trust receives many calls asking about access to records and the legality of transferring Protected Healthcare Information (PHI) to others. While this area can be complex, there are some simple rules to follow.
* Remember, while the records belong to you the information in them does not. Post HIPAA, unless the release of information would cause serious physical harm to another person, the information usually belongs to the patient or to a legal representative of the patient. This is inconsistent with the training and temperament of most psychologists. If a psychologist does not know what to do when confronting confusing requests for and about records, it is best to get legal consultation before doing anything.
* While you might have your own labels for the records you keep, you could find your conclusions are inconsistent with HIPAA, the federal health information privacy act. According to HIPPA, there are only two types of records: the clinical record and psychotherapy notes. Access to these documents is clearly defined by the law. It is crystal clear that what can be in these notes is quite limited and that they have much more limited protection than many psychologists believe. That said; in most states patients have control over the disposition of both types of records.
“My patient committed suicide”
Probably no area of professional practice is more upsetting and traumatic than the suicide of a patient. In addition to the fear that the psychologist will be sued and the existential questioning about what might have been done differently, the loss of a patient is like the loss of a family member and must be mourned and dealt with.
Traditional risk management thinking was that once a suicide occurred, interaction with the survivors was too risky. After many years of experience, we find that everyone does better if the psychologist is allowed to be human and able appropriately to share feelings of caring for the patient with the family. Expressing condolences, attending the funeral and meeting with grieving family members are important for the family and the psychologist coping with the loss. They are more likely to reduce risks of lawsuits and licensing board complaints than to precipitate them.
* When a client commits suicide, the need to process the loss is intense but it is important to remember that one’s judgment may be adversely impacted. Consultation and peer support is crucial but there is a risk that things said may be used against the psychologist if there is a lawsuit. Talking to colleagues and supervisors about your feelings is not problematic, but sharing uncertainties about what you did or might have been done to prevent the suicide should only be discussed with your therapist, your lawyer, your supervisor or your spouse. These are the only privileged relationships off-limits to a plaintiff’s attorney.
* Access to records changes after a suicide. Individuals who have rights to the information about the deceased are dictated by law. However, sometimes rigid adherence to the law is not the best risk management strategy. If someone wants access to records of a patient who committed suicide, immediately seek legal advice from someone familiar with the demands of psychological practice.
* The best risk management for potentially suicidal patients occurs before a suicide. Careful documentation of regular suicide risk assessments, consultation with other involved professionals and family members where appropriate is what will be looked for by lawyers on both sides.
* It is important to remember that while one out of four psychologists loses a patient to suicide, malpractice suits are far less frequent than board complaints. Also, while a malpractice suit is very unpleasant, it is rarely career damaging in the long run.
“I have to testify in court”
Few events are more anxiety provoking for treating psychologists than participating in a legal proceeding. Unfortunately, almost all psychologists have this experience. While this is a positive change for the profession, increasing the role psychologists play in society, a lack of understanding about what should and should not be said in court is extremely important. Others will frequently attempt to have treating psychologists step beyond the scope of the therapeutic role into one that is forensic. This is dangerous turf.
* Be aware of the conflict that exists when providing forensic opinions in a legal proceeding when you have served as or are a treating therapist. Usually the psychologist is considered a treating expert. This means that the psychologist may testify about opinions formed to provide treatment (diagnosis, treatment plan, patient history, prognosis). The rest of the testimony can only expound on the data gathered by the psychologist, mostly what the patient said and what the psychologist observed. There will often be pressure on the psychologist to give opinions about the client that will help one side and this is where the quicksand lies.
* If you have been a treating therapist, your testimony can be useful in a legal proceeding but you should avoid making any recommendations or arriving at forensic conclusions, including opinions about damages and causation. This is the realm of the forensic psychologist and providing these types of opinions in a legal proceeding constitutes a dual relationship that can be seen as a violation of the standard of practice.
* If you do not know what to say in court, do not say anything. Get knowledgeable guidance about what you can and cannot say and stick to it.
* Involvement in a legal case has a high potential to disrupt treatment. Client expectations for advocacy, often fueled by the client’s attorney, can create conflict with the psychologist’s actual role. This should be fully discussed with the client at the earliest discovery that the psychologist may be involved.
These are a just a few of the topics key to a successful, safe, high quality and risk managed practice. We end with the suggestion that if you do not know what to do when confronted with an ethical or legal dilemma, do nothing until you get guidance. Guidance is readily available from multiple sources, including The Trust Risk Management Consultants, your state association’s ethics committee or attorneys familiar with mental health law.
January 5, 2021
July 28, 2020
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