Avoiding Liability Bulletin – February 2009
An interesting question that arises from time to time occurs when an elder tells a mandated reporter that he or she has suffered from some form of abuse – for instance, physical abuse or financial abuse – but the therapist or counselor does not believe the client. Must a report be made? As I often write, the answer to this question depends upon the nuances of state law. Does the state law require reporting only if the therapist or counselor has “knowledge” of the abuse or has a “reasonable suspicion” of abuse? Is there some other standard for reporting? Does the state law specify that a report must be made if the elder says that he or she was abused – regardless of what the therapist or counselor may believe or determine? The answers to these questions, among others, are critical.
In one state, for example, the law specifies that a report of elder abuse must be made if the psychotherapist, while acting in his or her professional capacity or within the scope of his or her employment, has observed or has knowledge of an incident that reasonably appears to be physical abuse, financial abuse, neglect or other specified forms of elder abuse, or reasonably suspects such abuse. That state’s law, however, provides that psychotherapists (and other specified health care providers) are not required to report an incident where all of the following conditions exist: 1) the psychotherapist is told by the elder that he or she has experienced behavior constituting physical, financial or the other kinds of abuse; 2) the psychotherapist is not aware of any independent evidence that corroborates the statement that the abuse has occurred; 3) the elder has been diagnosed with a mental illness or dementia, or is the subject of a court ordered conservatorship because of a mental illness or dementia, and 4) in the exercise of clinical judgment, the psychotherapist reasonably believes that the abuse did not occur.
What are the answers to the questions posed above according to the law in your state?
ABOUT THE AUTHOR
"At the Intersection of Law and Psychotherapy"
Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues.
Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards.
Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity.
Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California.
While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California.
Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.