- the right of clients to be informed about their therapy and to make autonomous decisions pertaining to it.
Mental Health professionals are required by ethics codes to disclose what to clients?
- the risks, benefits, and alternatives to proposed treatment.
Legal Aspects of Informed Consent
Informed Consent -Capacity
- the client has the ability to make rational decisions.
Informed Consent - Comprehension
- therapists must give clients information in a clear way and check to see that they understand it.
Informed Consent - Voluntariness
- the person giving consent is acting freely in the decision-making process and is legally and psychologically able to give consent.
Informed Consent - Tape-recording or Videotaping Sessions:
- important clients understand why recordings are made
- important clients understand how they will be used, who will have access to them, and how they will be stored.
- trainees or counselors must secure the permission of the clients before making any kind of electronic recording.
Client's right to their files
-Remley & Herlihy (2005) - clients have a legal right to inspect and obtain copies of records kept on their behalf by professionals.
- professional should write about client in descriptive and nonjudgmental ways.
- summaries are given to clients when seeing personal records would be harmful to client.
Primary Purpose for Record Keeping
- Standard of care
- to provide high-quality service for clients
- to maintain continuity of service if other
professionals are involved
- documents/provides evidence that
adequate care was provided
Record Keeping - Clinical Perspective
- provides history that a therapist can use in reviewing the course of treatment. (text)
Record Keeping - Ethical Perspective
- records can assist practitioners in providing quality care to their clients. (text)
Record Keeping - Legal Perspective
- state or federal law may require keeping a record
- provides an excellent defense against malpractice claims. (text)
Record Keeping - Risk Management Perspective
- keeping adequate records is the standard of care;
- helps provide appropriate care in a therapist's absence. (text)
California & Record Retention - HIPPA Law
- records created by marriage, family and child counseors and social workers should be preserved for a minimum of ten (10) years following the discharge of the patient.
HIPPA Law - un-emancipated minors' records
- records of un-emancipated minors should be kept 10 years after a minor client has turned 21.
Why keep records for ten (10) years?
- you can be sued up to ten years after discharge of a patient.
- record retention is especially important if you are in private practice.
- BBS can pursue disciplinary action for up to seven years.
- AB 2257 - retention for 7-years; exception is in the case of an allegation of sex, thus why ten years may be better.
Risks and benefits of online counseling
No state legislature has yet addressed Internet counseling, although some states have begun restricting physician practice across state line.
Children & Adolescents: Right to Treatment
- the general rule is that a parent is entitled to general information from the counselor about the child's progress in counseling.
Informed Consent - Children & Adolescents
- informed consent of parents or guardians may not be legally required when a minor is seeking
- counseling for dangerous drugs or narcotics;
- sexually transmitted diseases
- pregnancy and birth control, or
- examination following alleged sexual assault of
a minor over 12-years-old.
Guidelines for Legal Authority - Minors
- married parents
- divorced parents / custody orders dictate
- adoptive parents
- minors with unmarried parents
- minors with minor parents
- legal guardians / caregivers with a signed
- emancipated minors - considered adults.
Guidelines for No Legal Authority - Minors
- foster parents
Consent by un-emancipated minor- 12-years-old (+)
- seeing a professional person and is mature
enough to participate intelligently in the services
can consent for self.
- provider has to document reasons for contacting
or not contacting parents.
- bad practice
- failure to render professional services or to exercise the degree of skill that is ordinarily expected of other professionals in a similar situation.
- can result from unjustified departure from usual practice or from failing to exercise due care in fulfilling one's responsibilities.
What are the four elements of malpractice?
- Breach of Duty
- existence of a special relationship
- nature of that special relationship
Breach of Duty
- failure to provide the appropriate standard of care
Evidence of harm:
- professional's breach of duty was the proximate cause of the injury they suffered.
Reasons for Malpractice Suits
- failure to obtain or document informed consent
- client abandonment and premature termination
- sexual misconduct with client
- marked departures from established therapeutic
- repressed or false memory
- unhealthy transference relationships
- Failure to control a dangerous client