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MFT Licensing Exam - Legal & Ethical Issues

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Barter
Barter is addressed in Subprinciple 9.5 of the Code of Ethics, which states that MFTs "ordinarily refrain from accepting goods, services, or other non-monetary remuneration from patients in return for professional services" because these arrangements can lead to conflicts and exploitation.
Dual Relationships
Dual relationships are addressed in Subprinciple 1.2 of the Ethics Code, which requires MFTs to "avoid dual relationships with patients that are reasonably likely to impair professional judgment or lead to exploitation." As defined in this subprinciple, a dual relationship is a "separate and distinct relationship" that occurs either at the same time as the therapeutic relationship or during a "reasonable period of time" following termination of the therapeutic relationship. Note that, in some situations, a relationship with a client's spouse, partner or family member may constitute an unethical dual relationship.
Marriage License
To obtain a marriage license in California, the parties must appear together at the county clerk's office and present a completed application and valid government-issued identification. There are two types of marriage license - public and confidential. There is no residence or citizenship requirement to qualify for a marriage license; and a blood test or health certificate is not required.
Scope of Competence
Scope of competence refers to the limits of what an MFT is qualified to do based on his or her education, training, and experience and is addressed in the Ethics Code and California law.
Unpaid Fees
MFTs are prohibited from terminating therapy when a client has not paid his/her fees "except when the termination is handled in a clinically appropriate manner" (Subprinciple 1.3.4). Although MFTs may use a collection agency to collect unpaid fees, they must give the client an opportunity to pay the fees that are owed within a specified period of time before doing so and then give the collection agency only essential information (Subprinciple 9.4).
Breach of Client Confidentiality
In most situations, an MFT is legally and ethically obligated to maintain a client's confidentiality. However, there are a number of circumstances in which an MFT is legally required to breach confidentiality without the authorization of the client or his/her legal representative. These circumstances include when the MFT has a duty to warn/protect an intended victim of a client; to report child, elder adult, or dependent adult abuse, or as required by a court order.
Emancipated Minors
Emancipated minors are considered adults for the purpose of consent to medical, dental or psychiatric care. A minor is emancipated when he or she has entered into a valid marriage, whether or not the marriage has been dissolved; is on active duty with the United States military; or has received a declaration of emancipation from the court (FC Section 7002).
Personal Problems
MFTs are ethically and legally obligated to take appropriate action whenever personal problems or other factors might interfere with their ability to provide effective professional services. For example, Subprinciple 3.1 of the Code of Ethics states that MFTs are in violation of the Code and "subject to termination of membership, or other appropriate action, if they...continue to practice when they are no longer competent to practice because they are impaired due to physical or mental causes or the abuse of alcohol or other substances."
Scope of Practice
Scope of practice refers to the legally defined boundaries of an MFT's professional practice and is described in B&PC Section 4980.02, which states that the practice of marriage and family therapy refers to services "performed with individuals, couples, or groups wherein interpersonal relationships are examined for the purpose of achieving more adequate, satisfying, and productive marriage and family adjustments."
Unprofessional Conduct
Examples of unprofessional conduct by MFTs and MFT interns are provided in B&PC Section 4982 and include being convicted of a crime substantially related to an MFT's qualifications or duties; obtaining a license or registration by fraud, deceit, or misrepresentation; failing to maintain client confidentiality, except as required or permitted by law; and failing to disclose to a client or prospective client the fee for professional services or the basis for deriving that fee prior to the beginning of treatment. B&PC Section 4982 also states that "the board may refuse to issue any registration or license, or may suspend or revoke the license or registration of any registrant or licensee if the applicant, licensee, or registrant has been guilty of unprofessional conduct."
Consent of Unemancipated Minors
Legal requirements regarding the consent of unemancipated minors to mental health services are provided in H&SC Section 124260 and FC Sections 6924 and 6929. For example, Section 124260(b) permits a minor who is at least 12 years of age to consent to outpatient mental health treatment or counseling services if the attending professional person believes the minor "is mature enough to participate intelligently" in the treatment or services.
Informed Consent
Informed consent refers to the right of a client to be given adequate information about the therapy process and procedures before making the decision to participate in therapy. This includes information about the risks and benefits of therapy, the client's rights and responsibilities, and the limits of confidentiality. In order for a consent to be truly informed, three conditions must be met: capacity, comprehension, and voluntariness.
Reporting Child Abuse and Neglect - When and How to Make a Report
PC Section 11166(a) states that a mandated reporter shall make a report whenever the reporter "in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom this mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect." The report must be made as soon as possible by telephone and by a written follow-up report within 36 hours. When a reporter is unable to make the initial report by telephone after making a reasonable effort to do so, he or she must submit a written report by fax or electronic transmission and be available to respond to a follow-up call by the agency that received the report. In this case, a written follow-up report is not required.
Supervised Work Experience
MFT trainees and interns are required to accrue a minimum of 3,000 hours of supervised work experience during a period of at least 104 weeks prior to applying for exam eligibility. Of the 3,000 hours, a maximum of 1,300 hours may be accrued pre-degree and a minimum of 1,700 hours may be accrued post-degree. Supervised work experience must be gained no more than six years before an MFT applies for exam eligibility. The only exception is that a maximum of 500 hours of supervised work experience may be accrued before the six-year period while a trainee is enrolled in a supervised practicum.
Continuing Education
MFTs must complete 36 hours of CE for each two-year license renewal period with the following exceptions Licensees applying for their first renewal are required to complete 18 hours of CE and individuals who are on inactive status or have been granted an exception are not required to complete CE.
Insurance Fraud
Insurance fraud is both unethical and illegal. Acts that constitute insurance fraud include routinely waiving copayments without informing the insurance company; assigning an inaccurate diagnosis in order to be paid by the insurance company; and billing the insurance company for a missed appointment without making it clear that the appointment was missed.
Reporting Child Abuse and Neglect - Types of Reportable Abuse
The following types of child abuse must be reported by mandated reporters: physical abuse, sexual abuse, willful harm or injury, unlawful corporal punishment or injury, and neglect. In addition, mandated reporters may report "serious emotional damage, evidenced by...severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others."
Supervisor Qualifications
Supervisor qualifications are specified in the B&PC Section 4980.03, which states that a supervisor of an MFT trainee or intern must be licensed "as a marriage and family therapist, licensed clinical social worker, licensed professional clinical counselor, licensed psychologist, or licensed physician certified in psychiatry." The supervisor must not have provided therapeutic services to the trainee or intern; must have a current and valid California license and have been licensed for at least two years before the commencement of supervision; and, if the supervisor is a licensed professional clinical counselor, he/she must have the legally required additional training and experience. In addition, CCR Section 1833.1 requires supervisors who are marriage and family therapists, licensed clinical social workers, or licensed professional clinical counselors to complete six hours of supervision training or coursework during every license renewal period.
Access to the Records of Minors
The person having responsibility for making health care decisions for a minor usually has the right to access confidential health care information about that person - i.e., minors have the right to inspect or obtain a copy of their own records when they pertain to health care for which the minor has or could have consented as permitted by law, while the minor's parents or legal guardian has the right when they do not pertain to health care for which the minor has or legally could have consented. However, in the latter situation, a provider may refuse to provide a parent or guardian access to a minor's records when the provider determines that access would have a harmful effect on the therapeutic relationship with the minor or the minor's physical safety or psychological well-being.
Domestic Partnership
In California, domestic partnership is available for (a) same-sex couples when both parties are age 18 years or older or, if a party is under 18, when that party has obtained a court order, and (b) opposite-sex couples when at least one party is over 62 years of age. Domestic partners "have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law...as are granted to and imposed upon spouses" [FC Section 297.5(a)].
Interruption or Termination of Therapy
Guidelines for the interruption or termination of therapy are provided in several principles of the Code of Ethics. For example, Subprinciple 1.3 requires MFTs to "provide consistent care to patients and maintain practices and procedures to assure undisrupted care"; Subprinciple 1.3.1 requires MFTs to terminate therapeutic relationships appropriately; and Subprinciple 1.3.2 states that MFTs do not abandon patients during treatment.
Reporting Elder/Dependent Adult Abuse - When and How to Make a Report
WIC Section 15630(b)(1) states that any mandated reporter who, in his/her professional capacity or scope employment, has observed, has knowledge of an incident, or has been told by an elder or dependent adult that the elder or dependent adult "has experienced behavior, including an act or omission, constituting physical abuse..., abandonment, abduction, isolation, financial abuse, or neglect, or reasonably suspects that abuse, shall report the known or suspected instance of abuse by telephone or through a confidential Internet reporting tool...immediately or as soon as practicably possible. If reported by telephone, a written report shall be sent, or an Internet report shall be made through the confidential Internet reporting tool...within two working days."
Tarasoff Decision
The Tarasoff decision refers to the California Supreme Court decision that psychotherapists have a "duty to protect" a potential victim of a client when the client has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims. This duty is discharged when the therapist makes a reasonable attempt to communicate the threat to the intended victim and a law enforcement agency.
Advertisements
Guidelines for advertisements are provided in the Code of Ethics and California law. For example, the Code of Ethics requires MFTs to advertise in a way that "enables consumers to choose professional services based upon accurate information" (Principle 10); to refrain from using a fictitious name "that could mislead the public concerning the identity, responsibility, source and status of those practicing under that name" (Subprinciple 10.3); and to avoid using any personal identification (e.g., in business cards, directory listings, or Websites) that includes "a statement or claim that is false, fraudulent, misleading or deceptive" (Subprinciple 10.4).
Dissolution of Marriage
California is a "no-fault" state and dissolution of marriage (or domestic partnership) may be granted on one of two grounds: irreconcilable differences or incurable insanity.
Involuntary Commitment
Regulatoins related to involuntary commitment are provided in the Lanterman-Petris-Short Act. Commitment. Involuntary commitment begins with a 72-hour hold (a "5150"), which may be followed by a 14-day hold (a "5250") and additional postcertification holds. It should be considered only when the danger that the client poses to self or others is imminent or the client is gravely disabled; the danger or grave disability is the result of a mental disorder or chronic alcoholism; and the client has refused or is unable to comply wiht a recommendation to enter a psychiatric hospital voluntarily.
Reporting Elder/Dependent Adult Abuse - Types of Reportable Abuse
The following types of abuse must be reported by mandated reporters: physical abuse, abandonment, abduction, isolation, financial abuse, and neglect. In addition, mandated reporters may make a report when they know or reasonably suspect, "that types of elder or dependent adult abuse for which reports are not mandated have been inflicted upon an elder or dependent adult, or that his or her emotional well-being is endangered in any other way."
Types of Child Custody
As required by FC Section 3040, child custody is granted in the following order of preference: (a) joint custody; (b) either parent according to the best interests of the child; (c) the person or persons in whose home the child has been living in a wholesome and stable environment; or (d) any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. The law also allows the court and family to choose whether each parent will have sole or joint legal and/or physical custody.
Client Records
MFTs are ethically and legally obligated to maintain adequate client records in a way that is "consistent with sound clinical practice" (Code of Ethics, Subprinciple 3.3). The ownership of client records is governed by law; but, in general, the therapist or the facility or organization where the therapist works owns the physical record, while the client owns the content of the record.
Exceptions to Privilege
The psychotherapist-patient privilege does not apply when (a) the client authorizes a release of information (b) a therapist is legally mandated to breach confidentiality; (c) the client has disclosed a significant part of the information to a third person; or (d) the situation represents one of the legally defined exceptions to privilege, which include EC Section 1024 (patient dangerous to self, others, or property of others) and Section 1016 (patient-litigant exception).
Privilege/Holder of the Privilege
Privilege is a legal concept that protects a client's confidentiality in the context of legal proceedings. The psychotherapist-patient privilege is established by EC Section 1014, which identifies licensed MFTs and MFT trainees and interns as "psychotherapists." The client is ordinarily the "holder of the privilege," but a therapist can claim the privilege on behalf of a client, and there are legally defined exceptions to privilege.
Sexual Relationship with Clients
MFTs are legally and ethically prohibited from having sexual relationships with current clients and others, and engaging in prohibited sexual relationship may result in disciplinary action as well as civil and criminal liability. Subprinciple 1.2.2 of the Ethics Code states that "sexual intercourse, sexual contact or sexual intimacy with a patient, or a patient's spouse or partner, or a patient's immediate family member, during the therapeutic relationship, or during the two years following the termination of the therapeutic relationship, is unethical"; and the B&PC identifies "sexual relations with a client, or a former client within two years following termination of therapy" as unprofessional conduct and as cause for revocation of an MFT's license.
Confidentiality
Confidentiality is derived from the right to privacy and refers to the obligation to protect clients from unauthorized disclosure of information revealed in the context of a professional relationship. Maintaining client confidentiality is both an ethical obligation and legal requirement.
HIPAA's Privacy Rule
The Privacy Rule is one of three parts of HIPAA and was designed to ensure the security of a patient's protected health information (PHI), which includes any individually identifiable health information that is transmitted or maintained in any medium and is "created or received by a health care provider...and relates to the past, present, or future physical or mental health or condition of an individual" (45 CFR 160.103). The Privacy Rule grants patients the right to inspect and receive a copy of their PHI; amend their PHI; receive an accounting of disclosures of their PHI; request restrictions on the disclosures of their PHI; request confidential communications; and receive a Notice of Privacy Practices.
Referral Fees
MFTs are prohibited from accepting or paying referral fees for clients by Subprinciple 9.1 of the Code of Ethics and B&PC Section 4982(o). Note that referral fees are fees that are paid simply for the referral - i.e., they do not represent the actual costs of making the referral.
Subpoena
A subpoena is a legal document that requires the recipient to testify at a designated place and time, to provide records, or both. When a subpoena is valid, a response is required (e.g., the recipient must appear in court at the time requested). However, the recipient should first contact the client to discuss the implications of providing the requested information and obtain the client's consent to release confidential information.
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