way beyond “who’s the client” ethical & legal responsibilities in juvenile behavioral...
TRANSCRIPT
Way Beyond“Who’s the Client”
Ethical & Legal ResponsibilitiesIn Juvenile Behavioral Health Care
Bruce Hodson, PhDMarch 15, 2013
Northeast Oklahoma PsychologyInternship Program
Annual Ethics ConferenceTulsa, Oklahoma
Fiduciary
(adj): of, relating to, or involving a confidence or trust.
Behavioral health professionals have a fiduciary responsibility to the parties who place confidence or trust in the
practitioner’s professional role.
Ethical Principles in Health Care
Beneficence
Nonmaleficence
Autonomy
Justice
Fidelity
Veracity
Legal Standards / Regulations
Licensing Act (statute)
Board Rules & Regulations
Other relevant state statutesFederal Laws & Rules (e.g. 42 CFR Part 2, HIPAA, HITECH)
Clinical Considerations
EffectivenessTherapeutic relationship
TrustSafety / “Sanctuary”
Expectations & boundaries
To Whom Do You Owe a
Fiduciary / Professional
Responsibility ?
Who’s the Client ?
Juvenile treatmentmay involve:
“Identified patient” (i.e. “the child”)
Parents (in various forms & combinations)
Siblings
Grandparents, extended family
Other health care providers
Educational providers
DHS
Court, lawyers, guardian ad litem
Disability Determination / Social Security
and so on, and so on, and so on…
Not “Who’s the patient ?”
Not “Who’s the client ?”
To which parties do I have what fiduciary
responsibilities ?
Consent
Confidentiality
Conflicting Interests
(Koocher 2008)
Who Can Consent To Treatment ?
Minor child (age < 18 years)
Consent by parent / legal guardian
What about divorce ?What about joint custody ?What about step-parents ?
What about grandparents’ rights ?
Can a minor ever self-consent ?
OS Title 63 Chpt 54 Health Services for Minors
Sec. 2601 – 2605Right to self-consent under certain
circumstances
Allows minor self consent by a child:
- Who is married, has a dependent child, or is emancipated.
- Who is separated from his parents or legal guardian…and is not supported by his parent or guardian.
- or…
- Who is or has been pregnant, afflicted by any communicable disease, drug and substance abuse or abusive use of alcohol.
“…provided that such self-consent applies only to the prevention, diagnosis and treatment of those conditions specified in this section.”
Beyond the legalities…..
Who is informed for
“Informed Consent” ?
Providing explanation of procedures. The psychologist shall give a truthful, understandable, and appropriate account of the client’s condition to the client or to those responsible for the care of the client. The psychologist shall keep the client fully informed as to the purpose and nature of any evaluation, treatment or other procedures, and of the client’s right to freedom of choice regarding services provided. (ASPPB 2005)
Therapy Involving Couples or Families
(a) When psychologists agree to provide services to several persons who have a relationship (such as spouses, significant others, or parents and children), they take reasonable steps to clarify at the outset (1) which of the individuals are clients/patients and (2) the relationship the psychologist will have with each person. This clarification includes the psychologist’s role and the probable uses of the services provided or the information obtained. (ASPPB 2005)
Informed Consent(b) For persons who are legally incapable of giving informed consent, psychologists nevertheless (1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such person’s preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law...[or] take reasonable steps to protect the individual’s rights and welfare. (ASPPB 2005)
Informed Consent (continued)
(c) When psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding. (ASPPB 2005)
When psychologists agree to provide services to a person or entity at the
request of a third party, psychologists attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This includes the role of the psychologist (e.g. therapist, consultant, diagnostician, or expert witness), an identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality. (ASPPB 2005)
Services involving more than one interested party. In a situation in which more than one party has an appropriate interest in the professional services rendered by the psychologist to a client or clients, the psychologist shall, to the extent possible, clarify to all parties prior to rendering the services the dimensions of confidentiality and professional responsibility that shall pertain to the rendering of services. Such clarification is specifically indicated, among other circumstances, when the client is an organization. (ASPPB, 2005)
Informed Consent for All Parties
“Collateral Consent”
e.g. APAIT “Sample Outpatient Services Agreement For Collaterals”
Confidentiality
OS Title 59 (licensing acts)
OS Title 43A (mental health code)
OS Title 10A (child abuse/neglect)
OS Title 63 (minors’ self-consent)
OS Title 43 (marriage & families)
42 CFR Part 2 (substance abuse)
45 CFR (HIPAA)/PL 111-5 (HITECH)
34 CFR Part 99 (FERPA)
43 OS Sec 109.6
Any information or any record relating to a minor child which is available to the custodial parent of the child, upon request, shall also be provided the noncustodial parent of the child. Provided, however, that this right may be restricted by the court, upon application, if such action is deemed necessary in the best interests of the child
Title 10A OS Sec 1-2-101Duty to Report Abuse or Neglect of
A Child Under Eighteen – Statewide Centralized Hotline – Failure to Report - False Reports
1-800- 522-3511
See also Sec 1-1-105 - Definitions
OS 63 Chpt 54 Sec 2602(re: juvenile self-consent)
…the health professional may, but shall not be required to inform the spouse, parent or legal guardian of the minor of any treatment needed or provided. The judgment of the health care professional as to notification shall be final, and his disclosure shall not constitute libel, slander, the breach of the right or privacy, the breach of privileged communication or result in any other breach that would incur liability.
42 CFR Part 2 Subpart B Sec 2.14
(b)…If a minor acting alone has the legal capacity under the applicable State law to apply for and obtain alcohol or drug abuse treatment, any written consent for disclosure authorized under Part C of these regulations may be given only by the minor patient….
HIPAA
The parent of a minor is typically his/her “personal representative” and can access and control release of records.
“There are three situations when the parent would not be the minor’s personal representative under the Privacy Rule. These exceptions are:
(HIPAA – continued)
1.When the minor obtains care at the direction of the court or a person appointed by the court; and,
2.When the minor is the one who consents to care and the consent of the parent is not required under State or other applicable law;
(HIPAA – continued)
1.When, and to the extent that, a parent agrees that the minor and the health care provider may have a confidential relationship.
However, even in these exceptional situations, the parent may have access to the medical records…when State or other applicable law requires or permits such parental access.”
(US DHHS 2006)
Multiple clients. When service is rendered to more than one client during a joint session, for example to a family or a couple or a parent and child or a group, the psychologist shall at the beginning of the professional relationship clarify to all parties the manner in which confidentiality will be handled. All parties shall be given the opportunity to discuss and accept whatever limitations to confidentiality adhere in the situation. (ASPPB 2005)
Legally dependent clients. At the beginning of a professional relationship, to the extent that the client can understand, the psychologist shall inform the client who is below the age of majority or who has a legal guardian, of the limit the law imposes on the right of confidentiality with respect to his/her communication with the psychologist, (ASPPB 2005)
Electronic Confidentiality Issues
“Informed consent” - patient educationCell phones & texting in session
Cell phones & texting between sessionsVideo & audio recording
e-mailGoogling patientsSocial networking
My Private PracticeSocial Media Policy
“This document outlines my office policies related to use of Social Media. Please read it to understand how I conduct myself on the Internet as a mental health professional and how you can expect me to respond to various interactions that may occur between us on the Internet….”
(K. Kolmes, 2010)
Conflicting Interests
Child vs ParentParent vs ParentChild vs Siblings
Immediate Family vs Extended FamilyFamily vs System (school, DHS, etc.)
Professional vs ChildProfessional vs Parent(s)
Child vs Parent vs Professional vs DHS vs Foster Parent vs Guardian ad Litem vs
Attorney vs Judge vs School
Resolving Dilemmas Define the dilemma :
What are the facts? What is the conflict?Whose dilemma is it ?
Clarify the issues:What does the law / ethics / clinical judgment say ?
What are my choices ? What are the possible / likely outcomes ? Can we escape the dilemma ? Make a decision Monitor, mitigate and memorialize.
Avoiding problems is always preferable to solving them.
Always go back to “What’s my role ?”
Consult, consult, consult.
Never, ever get involved in child custody.
www.oscn.net
www.lsb.state.ok.us
www.access.gpo.gov
www.kspope.com
www.zurinstitute.com
Social media form:
http://drkkolmes.com/for-clinicians/social-media-policy/
Collateral consent form:
www.apait.org/apait/resources/riskmanagement/cinf.htm
Additional References
Association of State and Provincial Psychology Boards Code of Conduct, Revised 2005. (available from OSBEP)
Koocher, G. Ethical Challenges in Mental Health Services to Children and Families. Journal of Clinical Psychology, Vol. 64 (5), 601-612, 2008.
US Dept. of Health and Human Services, Office for Civil Rights. Does the HIPAA Privacy allow parents the right to see their children’s medical records? 2006. Available at : http://www.hhs.gov/hipaafaq/personal/227.html. Accessed March 2, 2013.
