Inland Empire Chapter of CAMFT

Law & Ethics:  What Does the Law Expect of Me? Part IV

David Jensen, JD, CAMFT Staff Attorney

Summary:

Attendees will acquire an in-depth understanding of: The psychotherapist’s role as a creator of legal outcomes The 5150 process Confidentiality Child abuse reporting Consent to treatment of minors Reporting elder and dependent adult abuse, and The BBS’s role as Guardian of the Profession. This lecture-format course satisfies the BBS’s ongoing requirement of six CEUs in law and ethics. Although this is an advanced class, it is not necessary to have attended Parts I, II, or III. The training is open to MFTs, LCSWs, ASWs, and LPCCs.  

Objectives:

1. To educate therapists about the contours of the psychotherapist-patient privilege

2. To improve the level of discourse among therapists regarding the psychotherapistpatient privilege.

3. To prepare therapists to respond to subpoenas

4. To inform therapists about the distinctions between percipient, expert, and treatingexpert witnesses.

5. To educate therapists about the most common exceptions to the psychotherapist-patient privilege. 

Bio:

Dave Jensen has been Staff Attorney with CAMFT since April of 2002. Dave graduated from Brigham Young University with a Bachelor’s Degree in History, and received his law degree from the Thomas Jefferson School of Law in San Diego, California. As an attorney with CAMFT, Dave consults with CAMFT’s members regarding their legal and ethical dilemmas and is a regular contributor to The Therapist magazine. Dave gives numerous chapter, school, and agency law and ethics presentations and has developed What Does the Law Expect of Me? Parts I – IV. 

What Does the Law Expect of Me Part IV Synopsis:

On February 22nd we convened for our annual meeting with CAMFT Attorney and therapist seer, Dave Jensen for an update on legal and ethical issues. We knew from past years that he only became an attorney after his baseball career did not work out. Now we know that he is a frustrated rock musician …and would rise to his level of incompetence if he ever needed to be an exterminator. Ask him how to work through a complicated case with multiple abuse, dangerousness, and court proceedings; just don’t ask how to rid your office of vermin!

Dave began our sojourn by walking us through the record you want to make from “Red Dirt Girl” by Emmylou Harris. As he retorts often…the choice is how to be safe, safer, or safest. In the interest of making excellent records, he supports the “DIRT” framework over “SOAP”. Your record should clearly indicate:Who is the client, Why are they in therapy, Description of information and cultural issue, Interventions for goals and temporal issues, Responses of the client in and between sessions, and Treatment planning.  Description(s), Intervention(s), Response(s), and Treatment Planning. For really bulletproof records, Dave provided his twelve holes County Club. Assessment, Additional Assessment, Referrals, Diagnosis, Crisis Assessment, Crisis Evaluation, Crisis Management, Goals, Clinical Factors, Theoretical Orientation, Theoretical Relationship, and more Clinical Considerations. These reflect the BBS expectations…and explain why Dave isn’t a professional golf pro.

He closed this section with a practice exercise using “Gunpowder and Lead” by Miranda Lambert. She is DANGEROUS. After the warm-up, we launched into the 170 slides that covered negligence. In the case of Lawlor v. Orlando, PhD., The Case of the Fortunate Psychotherapist, although negligent, the withering dissent confirmed that she was not responsible for client’s death. In the case of O’Sullivan v. Presbyterian Hospital, The Case of the Unwanted Patient. The decision was “liability may not be imposed for honest errors of judgment but can and should ensue if that judgment was not based upon intelligent reasoning or upon adequate examination so that there has been a failure to exercise professional judgment.” Thus, prepare for the “Crisis Course” and research local crisis resources before you need them was followed with Fortinas v. Westchester County Medical Center. The court concluded “a decision that is without proper medical foundation…is NOT to be legally insulated as a professional medical judgment.” Assess, ASSESS, ASSESS!

Unfortunately, I cannot write with the wit and engaging presentation of Dave and will forgo the longest case, Clouthier v. County of Contra Costa. Suffice it to say that governmental entities are not immune if professional standards are not met. Everyone came back after lunch! On to the subject of CONFIDENTIALITY. Referring to Urbaniak v. Newton shed much light on a key issue: Privacy v. Confidentiality. The ruling gives the therapist another objection that may be made on behalf of a client. The Confidentiality of Medical Information Act (CMIA) found in Civil Code § 56 et seq. creates an obligation for therapist to consider privacy, with HIPAA and Welfare and Institutions Code § 5328. In summary, follow Dave’s Rule: Do not release any, and that means any, patient information without having a written authorization from the client, an ORDER from a judge (not just a subpoena), or clearance from your attorney.  Further information was discussed regarding the details of “what” constitutes a proper authorization. There are NINE (9) Mandated Exceptions to Confidentiality, FOUR (4) Principles of Law, and TWENTY TWO (22) Permitted Exceptions. Consult, CONSULT, CONSULT!

Lastly, Dave served up the goulash of elder and dependent adult abuse. Amendments to California’s Elder Abuse and Dependent Adult Abuse Act found in the Welfare and Institutions Code § 15600 et seq. provides expanded definitions of terms and concepts such as dependent adult, reasonable suspicion, financial abuse, abandonment, isolation, and mental suffering. Dave informed us of the “Confidential Internet Reporting Tool” (CIRT) that many counties provide as an avenue for reporting elder or dependent adult abuse, and he encouraged each of us to find out if our local county has CIRT. Our homework assignment: find out the telephone and fax number for your local Ombudsman. Dave skillfully walked us through the “minefield” of elder and dependent abuse reporting requirements and six scenarios. Five types of longterm care facilities were described, as the setting in which the suspected or actual abuse occurs affects reporting requirements. Most notably, reportable incidents in long-term care facilities involving physical abuse, residents with dementia, and/or incidents resulting in serious bodily injury have more stringent reporting requirements than other reportable incidents (see the Welfare and Institutions Code § 15630 et seq.).