AVOIDING LIABILITY BLOG

October’s True or False Answers – Part 2

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Avoiding Liability Bulletin – December 2019

NOTE: In the October 2019 issue of this Bulletin, I asked twenty-five questions regarding various areas of practice (and the law) that may be encountered by practitioners during the course of their careers. While the discussions below cannot address the law in every state and are primarily based upon California law, the reader should determine whether the law in their state of practice is consistent with the answers and content appearing below. (Fourteen of the questions were answered in the November 2019 issue of this Bulletin.)  

CONVICTION OF CRIME (Question 14 in the October 2019 Bulletin)

Most if not all licensing laws for mental health professionals contain provisions that allow licensing boards to revoke or suspend a license due to the fact that the licensee has been convicted of a crime, whether a felony or misdemeanor. The crime typically has to be substantially related to the qualifications, functions, or duties of the particular type of license held, but there need not be any evidence or proof of patient harm. A conviction of petty theft, for example, might indicate that the licensee has a problem with honesty and integrity – crucial characteristics regarding a licensee’s fitness to safely work with the public. Recent legislation in California imposes some limitations on licensing boards in order to control the overzealous use of criminal convictions in order to discipline licensees.

PARTNERSHIPS (Question 16 in the October 2019 Bulletin)

There are several ways for licensed mental health practitioners to structure their practices. Many simply practice as sole proprietorships, while some form professional corporations or other entities that state law allows. Partnerships are another option, but state law typically prevents, for example, a licensee from forming a partnership and conducting business with an unlicensed person (perhaps one’s spouse) or a licensee of a different profession. If a licensed marriage and family therapist or licensed professional clinical counselor formed a partnership with a physician (perhaps a psychiatrist) or a psychologist, the partnership, and thus the LMFT or LCPP, would be receiving money for the practice of medicine or psychology, which licensing boards would likely assert is both unlawful and illegal.

ADVERTISING (Question 18 in the October 2019 Bulletin)

Most if not all state laws applicable to licensed mental health professionals make it a crime for the practitioner to advertise in a manner that is false, fraudulent, misleading or deceptive. If such a law is violated, the licensing authority in the state can take disciplinary action against the licensee. Whether or not a particular advertisement violates the applicable state law is not always easy to determine, and licensing boards and licensees may each have reasonable arguments in support of their position. It should be remembered that the omission of material information could properly be considered to be misleading and to constitute a deception of the consumer (these advertising statutes are consumer protection laws).

In question 18, I believe the better argument is that the advertisement is misleading and deceptive because of the failure to disclose that forty percent of the years of clinical experience in treating patients was gained as a pre-licensed person. The consumer may be looking for a “seasoned practitioner” and the reference to ten years of clinical experience in treating patients may give the consumer the impression that the practitioner has been a licensed practitioner for ten years. Why didn’t the practitioner disclose that 40% of the experience was gained as a student, intern, associate, or other pre-licensed status? In some cases, such a disclosure could be advantageous. First and foremost it is truthful, accurate, and complete. Secondly, the fact that the experience was gained under the supervision of a licensed clinician, perhaps of a different licensure and perhaps with an excellent reputation in the community, can be useful.

RECORDKEEPING (Questions 19 and 20 in the October 2019 Bulletin)

One aspect of recordkeeping that a licensed mental health practitioner may encounter is when prospective patients insist that minimal records be kept in order to protect their privacy. Under such a circumstance, the practitioner might want to explain how the laws of confidentiality and privilege protect patient privacy as well as the practitioner’s reasons for keeping more than minimal records. These reasons may be because of laws or regulations related to recordkeeping or the practitioner’s desire to deliver quality care and to document that care for purposes of continued treatment and for limiting the practitioner’s liability. If the prospective patient nevertheless insists that minimal records be kept, the practitioner may properly refuse to treat under such a circumstance.

There may be circumstances, however, where the practitioner will be agreeable to keep minimal records when the patient makes such a request. Of course, the practitioner will want to refer to state laws or regulations regarding recordkeeping to see if they would prevent the practitioner from complying with a patient’s reasonable request. California law provides that it is unprofessional conduct for the practitioner to fail “…to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services rendered.” This reasonable standard would seemingly allow for a decision with regard to keeping “minimal records” (whatever that term means) to be properly implemented. Finally, the agreement to keep minimal records should be understood by the practitioner and patient to be an agreement to keep minimal records consistent with applicable law.

REFUSAL TO TREAT PATIENT (Question 21 in the October 2019 Bulletin)

There are many reasons why a practitioner may refuse to treat a prospective patient. One of the best reasons to refuse to treat a patient is where the patient insists that the practitioner not contact or communicate with any other health care practitioners or health facilities (current or past) about the patient’s mental or physical health. This attempted limitation upon the statutory right of the practitioner (in California, and hopefully elsewhere) to break confidentiality by making disclosures to or receiving information from other health care practitioners or facilities for the purpose of diagnosis or treatment of the patient could expose the practitioner to liability. Practitioners need not accept such limitations upon their duty to provide competent care and need not subject themselves to possible claims of negligence or other wrongdoing.

DUAL OR MULTIPLE RELATIONSHIPS (Question 23 in the October 2019 Bulletin)

Dual or multiple relationships are neither unlawful nor unethical, and they need not be avoided. Professional association ethical standards have for a long time addressed this boundary issue, and they all make clear, in one way or another, that it is only those dual relationships that are reasonably likely to lead to exploitation or harm or to impair the practitioner’s judgment, effectiveness, or objectivity that must or should be avoided. Some standards expressly state that dual or multiple relationships that would not reasonably be expected to cause impairment of judgment or lead to exploitation or harm are not unethical.

Other standards make clear that not all dual relationships are unethical and that some dual relationships cannot be avoided. Licensing boards typically use expert witnesses to opine on the appropriateness of a particular dual relationship, and they may have a tendency to brand many dual relationships as a violation of the licensing law provisions related to unprofessional conduct. Practitioners who find themselves in such a relationship should be familiar with their professional association’s ethical standards regarding dual or multiple relationships, with any law or regulation that addresses the subject, and with the practitioner’s duty once a problematic dual relationship arises.

 

NOTE: Next month, I will address question 17, 22, 24, and 25 from the October 2019 issue of this Bulletin/blog, which deal with termination and duty to patient, avoidance of involvement with litigation, and the question of when the psychotherapist-patient relationship begins. 

 

ABOUT THE AUTHOR

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Richard Leslie

"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.

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