Legal and Ethical Issues Flashcards
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).
CCR Section 1811(a) requires all licensees and registrants of the BBS to include the following information in their advertisements:
- full name as filed with the BBS;
- license or registration number; and
- complete title or an abbreviation of the title that has been identified as being acceptable by the BBS.
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.
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; the client owns the content of the record.
Confidentiality is derived from the right to privacy, and it 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 a legal requirement.
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.
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.
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.
CONTINUING EDUCATION (CE)
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.
In California, domestic partnership is available for
- 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
- 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(3)].
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.
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.
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).
EXCEPTIONS T0 PRIVILEGE
The psychotherapist-patient privilege does not apply when
- the client authorizes a release of information;
- a therapist is legally mandated to breach conﬁdentiality
- the client has disclosed a significant part of the information to a third person; or
- 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).
HIPAA’S PRIVACY RULE
The Privacy Rule is one of three parts of HIPAA and was designed to ensure the security of a patients protected health information (PHl), 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 PHl
- amend their PHI
- receive an accounting of disclosures of their PHl
- request restrictions on the disclosures of their PHI
- request conﬁdential communications
- and receive a Notice of Privacy Practices
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.
- information about the risks and benefits of therapy
- the client’s rights and responsibilities
- the limits of confidentiality.
In order for a consent to be truly informed, three conditions must be met: capacity, comprehension, and voluntariness.