Domestic Violence Treatment: Legal and Ethical Issues
Daniel Jay Sonkin, Mindy S. Rosenberg, and Douglas S. Liebert
to be published in Sonkin, DJ and Dutton, D (in preparation) Treatment of Intimate Violence: Multidimensional Psychotherapeutic Perspectives published by Haworth Press.
Source: Daniel Jay Sonkin, Ph.D. Readings, software,
and books for the general public as well as professionals on domestic violence
and childhood abuse. The author provides assessment tools to help individuals
and families recognize violence within thier households. This site is updated
Domestic violence treatment programs have historically been designed for men who have been, or are at risk for becoming violent with an intimate partner. With the recent advent of mandatory arrest laws for domestic violence, treatment programs around the country have proliferated in response to the growing need for services of court-mandated clients. Additionally, women who have been arrested for domestic violence, are also often referred for mandatory treatment. In most programs, family safety remains a primary and immediate concern, however while this goal is often commonly pursued the approach and underlying rationale may differ significantly from program to program. As may be inferred by the variety of theoretical orientations described in this book, and in direct contrast to the currently popular and seemingly politically correct view that education remains the intervention of choice we believe this an overly simplistic and naive notion that ignores the rich and evolving literature regarding potential methodologies available for intervening clinically in the area of domestic violence. However, regardless of what theoretical orientation a clinician or treatment program utilizes when intervening with this population, there remain legal and ethical issues that must be addressed when planning, developing or providing such services. This chapter will focus on many of the most common issues clinicians, agency's and organizations must address when treating the domestic violence perpetrator. However, by definition, the specific legal and/or ethical decisions a professional must make, is often issue and case specific. Therefore, while we will provide as much specificity as possible, it remains incumbent that the treating clinician realize that difficult legal and ethical decisions must be made within the context of their professional legal and ethical mandates ( i.e. psychiatry, psychology, social work and marriage and family therapy), their location (the state laws applicable to their jurisdiction) and the specific facts of the clinical situation. Therefore, the recommendations in this chapter are offered only as general guidelines to assist in well reasoned and thoughtful issue specific decision making. Lastly, the authors believe that decisions that reflect appropriate sensitivity to legal and ethical issues must be made by the treating professional with the appropriate consultation of peers, supervisors and legal council.
Based in part on the authors experience, the most important common areas where professionals encounter difficult legal and ethical decisions in treating this population, particularly the court mandated client includes: 1) informed consent and other issues related to client safety, 2) confidentiality and privilege, 3) scope of competence and license, 4) financial issues, and 5) advertising. We will address each of these issues separately and examine many of the more common legal and ethical dilemmas that arise for clinicians when working with this population.
What are legal issues? For purposes of our discussion legal issues are relevant in two areas, laws governing the practice of your profession and criminal and civil laws that either directly or indirectly impact the mental health professionals practice. Laws governing the practice of mental health professionals are specifically articulated in the licensing law. Most states have a section in their licensing law that lists grounds revocation or suspension of a license. For example, in most states false or misleading advertising can result in the suspension or revocation of a licensees license to practice. Another example is therapist sex with patient. At present all licensing agencies prohibit this behavior. When a licensee is found guilty of such acts, the therapist can lose their license to practice. In some states, psychotherapist/patient sex is also a criminal act and the perpetrator can be prosecuted in a court of law. Most licensing laws also require therapists to keep information confidential except when permitted or mandated by state law.
Other laws, affect the profession but may not be specifically included in the
licensing law (other than our obligation to follow all laws that are
substantially related to the duties and functions of your profession). These
laws often include reporting child abuse, elder abuse, and adult dependent
abuse. Laws regarding psychotherapist/patient privilege govern therapists
actions when it comes to situations regarding a clients dangerousness or
potential dangerousness to self, others, or the property of others. Other
relevant laws address issues such as insurance fraud, patient access to medical
records, and the rights of minors to name just a few.
Setting the "frame of treatment" remains a time honored tradition and an important first step in helping any client, but this is especially true in the area of treating interpersonal violence in general and domestic violence specifically. This boundary often explicitly begins during the informed consent process, that is telling the client the realistic limits of treatment, and setting and communicating explicit rules of expected conduct and the consequences of not following the rules. It is crucial that each client understand the informed consent and agree to the program rules and follow them exactly as they are set forth, to assure that they derive the most benefit from the experience.
Informed consent statements should be presented in writing and discussed with clients and their partners and at the very least include a description of the limits of treatment. Although some studies have indicated a high remission rate of violent behavior while the perpetrator is in treatment and for some time afterwards, many clients do continue to re-offend even while participating in highly effective treatment programs. Therefore, a specific statement to all parties (if the program has contact with partners) will communicate the seriousness of domestic violence while at the same time present a sobering statement about the real chance that violence will continue and may become more serious over time.
Many clients referred to a domestic violence program have never experienced previous psychotherapeutic intervention. Therefore informed consent forms may also describe exactly how the therapy process works, how change can occur and how change or lack thereof may be measured. Asking clinicians to write about their theoretical orientation or philosophy regarding the process of change can be a challenging assignment that requires the clinician to step back and thoughtfully examine whether or not their interventions are consistent with their underlying theoretical treatment philosophy.
Informed consent statements often include policies regarding confidentiality, fees, insurance, missed sessions, both patient and therapist vacations, emergencies and termination of treatment. A program may want to make a distinction between informed consent and program rules. Licensing regulations typically don't mandate informed consent other than therapists disclosing their fee from the onset of treatment and communications regarding fictitious names. Ethical guidelines often dictate that therapists should go further in more fully providing informed consent. For example, including statements about the nature of therapy, potential efficacy and issues related to the specific agency or the treating clinicians policies. From a clinical perspective, when working with a clinical population that is prone to acting out, it is important the mental health professional be clear from the inception of treatment as to the parameters, and a thorough informed consent statement assists in setting clear boundaries that can be referred to when the client tests the limits of the therapist and the treatment relationship.
Scope of License
Because the persons providing the treatment services are licensed mental health professionals, or registered trainees or interns under the supervision of a licensed mental health professional, the scope of competence and scope of license issue remains extremely important. Treating domestic violence clients is potentially within the scope of licensure for mental health professionals. However, there may be a need for interdisciplinary networking with certain clients. For example, some clients may need to be evaluated by a physician specialist for difficulties related to certain disabilities or physical problems. Likewise, a medication evaluation by a psychiatrist may be a necessary adjunct for certain clients who could reap appropriate potential benefit from pharmacologic intervention. Traditional psychological or neuropsychological assessment may offer added diagnostic precision to assist in appropriate treatment planning or provide an independent measure of relative response to a current treatment plan or offer insight into how subsequent intervention may be modified to increase its efficacy.
Given the fact that domestic violence clients represent a unique population that remains susceptible to acting violent while in treatment, and that a rich and evolving literature is available, it is critical that treatment providers receive comprehensive training in domestic violence theory and treatment intervention. Historically, and at present many domestic violence educational programs provide training in the Duluth Model of intervention. This model is educational in nature and therefore insufficient by itself when training professionals regarding the relevant clinical, legal and ethical issues in working with this unique client population. Therefore, in the authors experience, at best it is naive, and at worst irresponsible to believe that attending a class that presents a single, discrete theoretical framework as an adequate basis for developing proficiency in the treatment of violent individuals. Training must at the very least include psychological theory, application and common dynamics, differential diagnosis, assessment, evaluation, cross cultural, as well as, legal and ethical issues. In addition to workshops, programs should consider the use of consultation as a forum for continuing education as well as a forum to bring complex clinical issues.
There is a strong educational component to the treatment process as described by many programs around the country. This is, due in part, to the fact that many of clients being referred for treatment may have minimal psychologic sophistication, not initially understand the value of psychotherapy and/or not possess sufficient intrinsic motivation to meaningfully utilize traditional psychotherapeutic approaches. Therefore a more didactic and practical educational approach may be viewed as less threatening and more appropriate to their stage of change readiness. However, even if a clinician utilizes an educational model they are still acting in the capacity a mental health professional. Should there be any question regarding their competence or methodology, they will be likely held to the same standards of any other treating clinician of their profession. This measure is often referred to as the standard of care.
The standard of care remains the minimal standard below which a practitioner cannot fall. It is based on what the profession expects of it's most average competent practitioner, not the best, nor the brightest. The standard of care takes into account the fact that competent treatment can lead to unsuccessful outcomes, therefore the mere fact that the patient was unhappy with the results does not mean that the treatment was negligent. This also doesn't mean that the clinician can not make mistakes - as long as the clinician uses reasonable judgment and does not depart from the acceptable standard of care. Therapists make mistakes and are not expected to be right all the time or do a perfect job with every client or patient. However, they do have a duty to exercise adequate care, knowledge and skill, consistent with the average like professional.
Clinicians who use a strictly educational approach, in the authors opinion, are skating on thin ice with regard to providing treatment within the standard of care. There is sufficient literature in the field of domestic violence to suggest that many individuals with problems with violence also may suffer from one or a number of severe psychiatric disorders. Although education may be a valid intervention to utilize as a part of broader treatment plan, it is not sufficient as a primary intervention. Given the rich literature regarding the assessment, intervention and treatment of this population the clinician has an affirmative responsibility to pursue providing services within this standard. If failing to make this proactive attempt they risk exposure not only to potential civil liability, but an accusation of illegal or unethical conduct.
Does this mean that a licensed mental health professional can not conduct educational classes of one kind or another? No. However, it is critical that professionals structure their program in such a way that it is absolutely clear to the public, that the services being offered are educational, not psychotherapeutic and the limits inherent. How the class is advertised will determine how the public views the service. Emphasizing the leaders profession, license, etc., can inadvertently give the potential participant or referring agency or institution the impression that the services being offered are more then they are and likely to result in a different outcome. Therefore, the advertising would best emphasize the educational and finite nature and limitation of the service and under-emphasize the credentials of the leader. Likewise, the leaders should use a business card different from the clinicians professional business cards. The clinician can also create this educational framework by providing the student or participant (not client or patient) with an informed consent or disclaimer statement that specifically describes the services being offered. This would include some statement as to how the services are educational and not psychotherapeutic and how important it is that the mental health needs of clients be appropriately addressed with a proper referral in the mental health community. Because each person in the class is theoretically neither a client or patient, there is no mandated need for a "patient record," other than perhaps attendance, homework completed or fees paid. The location of the class can also help to create one impression or another. If the class is in the a clinicians office, it may give the impression that the services being offered are psychotherapeutic. If the class is held in a neutral location, for example, a community center or a college classroom, there is less likely to be confusion regarding the specific nature of the services being offered.
The question of confidentiality is important to consider when professionals are working in different work setting (e.g., offering non-psychotherapy services/educational classes to individuals). Do you comply with state-mandated and permitted disclosure laws, such as child abuse and Tarasoff? One can argue, that because the professional is not working within his/her professional capacity, they are not legally obligated to make these reports. On the other hand, an equally cogent argument is that the services being offered are sufficiently related to psychotherapy and that the person is a mandated reporter, and therefore the teacher (clinician) does have a duty to report. Even if the first argument is true (that the professional is not a mandated reporter in this capacity), the teacher can inform the students both verbally and via the informed consent form that child abuse, elder/adult dependent abuse, threats to harm others and self will be reported to the proper authorities. Given the potential criminal and civil sanctions one would face for failure to report, it would be in the best interest of the professional (and society) to comply with these disclosure laws.
Confidentiality and Privilege
Either separately or within the context of informed consent, it is critical that mental health professionals address the issue of confidentiality with this clinical population in a clear manner, preferably both in writing and verbally. As previously noted for the limited purpose of our discussion we are treating the concepts confidentiality, an ethical issue, and privilege, a legal standard, both of which focus on the restriction on the volunteering of information (with certain limited exceptions) outside the courtroom. These issues may on the surface appear to be straight-forward, however, when looking more closely at the nuances of these complex legal and ethical issues, it becomes apparent that both must be addressed with careful deliberation.
Because of the sensitive nature of confidentiality inherent in domestic violence treatment, the therapist must begin the assessment process by procuring a proper authorization. Typically, clinicians will either want to, or be mandated to discuss their findings with the referring agency (usually the court or probation department). A proper authorization, according the Confidentiality of Medical Information Act in the California Civil Code, will include the following information:
The California law also provides that, upon demand by the patient or the person who signed the authorization, a provider shall furnish a copy of the authorization to the patient or person. Additionally, if there is a limit to the information being disclosed, the provider must convey this limit to the receiver of information. Providers who comply with this requirement are not subject to liability for any unauthorized use of the medical information by the person or entity to which the provider disclosed medical information.
When treating the court-mandated client, the timing of obtaining the authorization is critical. Some psychologically-defensive domestic violence clients may walk out of an interview prematurely or refuse to cooperate in other ways. If an authorization to release information was not procured, technically, the therapist may be in violation of the law and/or ethical standards, protecting the clients right to confidentiality, by speaking to the probation officer who made the referral. To avoid being in this compromised position, therapists are encouraged to procure at least a limited signed authorization prior to commencing the assessment interview. A limited release may allow the therapist to simply acknowledge that the client is or is not participating in the assessment process. Once this limited authorization is obtained, the therapist is legally able to make contact with the referring agency. Once the client agrees to participate in the assessment process or treatment program, a more comprehensive authorization will allow the clinician to divulge more specific information related to diagnosis or treatment.
At the beginning of the assessment interview therapists should discuss all the limitations with regard to confidentiality, including mandated disclosures and permitted disclosures. For example, in California, mandated disclosures include child abuse, adult dependent and elder abuse reporting. Threats that fall within the purview of Tarasoff are also a mandated disclosure. Other examples of permitted disclosures in California include psychological abuse of children and certain forms of adult dependent and elder abuse. Therapists are also permitted to make disclosures when the client presents a danger to self, others or the property of others. Therapists must be familiar with the specific language and intent of the relevant statute or law in their state or jurisdiction in order to determine which types of situations they must report and those situations where a therapist may report.
There also may be pre-existing agreements between the provider and referral agency (e.g., probation) mandating disclosures specific to the domestic violence issue, such as reoffenses, drug or alcohol relapses, violations of the law, etc.. If this is that case, an appropriate confidentiality policy will include those specific situations that a therapist will report to probation or the court.
Even when the client has signed an authorization to release information, therapists should use discretion in what information they reveal, particularly when discussing the case with non-mental health professionals, such as probation officers. Certain diagnostic observations, testing data and social history material may not be necessary to tell a probation officer of whether or not a client is appropriate for treatment in a particular program. Therefore, it may be useful to explicate to the client what will and what will not be discussed even when a broad authorization is agreed upon.
In many states, perpetrator treatment providers are certified to offer treatment by the local criminal justice or domestic violence agencies. Professionals therefore may be placed in the position of having dual allegiances. Another chapter in this text addresses this potential conflict more thoroughly, however suffice it to say that clinicians must understand and remain cognizant that their primary duty is to the welfare of their client or patient, not to fulfill the mandate of the criminal justice or social service systems. Arguably, relaying clinical material, particularly reoffenses, to the court or probation, can result in a variety of dire consequences, only one of which may include incarceration. Therefore, these reporting requirements should not be taken lightly and therefore it may be prudent for the therapist to discuss with the client the possibility of these actions prior to their occurring.
Confidentiality: Danger to Others
The 1976 California Supreme Court decision, Tarasoff v. Regents of the University of California, asserted that therapists, because of the special relationship they have with clients, have a duty to take reasonable care to protect the intended victim. The case involved a man who was interested in pursuing a dating relationship with a woman friend. When he discovered that she was not interested in an ongoing relationship with him, he sought psychological help. To his psychiatrist, he made a specific threat to harm the woman. Although the psychiatrist notified the police, the court found that he also had a duty to warn the victim of the patients threat. This well-known case established a therapists duty to warn potential victims of violence threatened by their patients. The court indicated that the reasonable care exercised by the professional could consist of other actions to protect the victim, such as involuntary hospitalization of the patient, but that directly warning the intended victim of the threat is the most effective method to fulfill this duty. Since this opinion, many states have specifically legislated guidelines for therapists in dealing with patients who presents a serious danger of violence to another.
In 1983, another court ruling (Jablonski by Pahls v. United States) widened the Tarasoff duty to include protecting intended victims of violence even when no specific threat was made. In this case, a psychiatric patient with a serious history of violence towards women killed his wife, even though he did not make any specific threats to her. The court ruled that the psychiatrist should have known that, because of the patients history of violence, he was likely to commit lethal violence towards his wife, and therefore reasoned that the psychiatrist had a duty to protect her by informing her of the danger her husband posed to her.
Again in 1983, another case broadened the therapists duty to protect by including unintended victims of violence (Hedlund v. Superior Court of Orange County). In this case, a client made a specific threat to the therapists to harm his wife, which was not communicated to the wife. The client subsequently shot the victim while she and her three-year-old child were in the car. Prior to the shooting, the women threw herself over the child to protect him. The child was not physically injured. The mother had her leg shot off by the shotgun. The mother sued the therapists for not warning her of the threats to her, nor of the danger to her child. The court ruled in favor of the mother and child, stating that the therapist had a duty not only to warn the mother of the threat against herself but also to warn her of the danger to her child, since the child was likely to be in close proximity to the mother when the offender would carry out his threat. The court also noted that this did not mean that the therapist must warn unidentifiable bystanders, but that common sense should dictate that certain identifiable persons in close proximity to the victim could also suffer harm and should be warned. This could be taken to include children, roommates, and other family members whom the offender had previously threatened or actually assaulted, or those in close proximity to the potential victim.
With the courts tendency to considerably broaden the duty to protect potentially identifiable victims of violence, mental health professionals in California began to feel uncomfortable with the idea of having to predict violent behavior. Research in the area of violence prediction has consistently indicated that therapists were as often wrong as they were right in predicting violent behavior. Therefore, it was argued, placing the burden of making such predictions on the therapist was unfair and unreasonable. Yet therapists indicated that under certain circumstances it would be reasonable to expect a professional to take reasonable care to protect an identifiable victim of threatened violence. For example, research does indicate that individuals who make verbal threats of violence are likely to act on those threats. In 1986, Section 43.92 of the California Civil Code was enacted through legislation. This law indicates:
..... that there would be no monetary liability on the part of the therapist, if a client makes a specific threat of violence towards an identifiable victim and the therapist make a reasonable effort to communicate the threat to the victim and notifies the local law enforcement agency.
This section of the code does not completely overrule Tarasoff; it simply provides a practitioner with a pathway for immunity. Therefore a practitioner could exercise his or her Tarasoff duty by acting in other ways to protect intended victims of violence (e.g., involuntary hospitalization of the client), yet not be immune from liability.
Since these three cases, there have been numerous other cases across the country that have challenged the notion that therapist must act to protect others from the violence perpetrated by their clients, with and without specific threats to harm. Although there are exceptions, most courts appear to have used the California standard to guide their rulings. That is, when a specific threat is made to a identifiable victim, service provides must fulfill their duty to protect by contacting the intended victim and the law enforcement authorities.
The Tarasoff decision mandates a specific response by the therapist in situations when a client makes a specific threat of violence towards an identifiable victim. Fortunately, these types of situations are rare. However, there are likely to be more situations where there is no specific threat made by the client, but nevertheless, there still exists a duty to protect the client from harming him or herself or others. Therefore, therapists working with perpetrators of domestic violence must carefully assess their clients potential risk for harm and set up structures within their program or treatment plan that anticipates the unexpected. What types of actions may a clinician take outside of a Tarasoff situation? Similar to the expectation that a competent therapist be able to appropriately manage a potentially suicidal patient, professionals need to respond to dangerous situations within an acceptable standard of care. Increased monitoring of the client may be the first level of intervention. Increasing the number of sessions may help to mitigate an emotionally stressful period. Psychiatric consultation and adjunctive medication management may serve to reduce dysphoria, anxiety or a thought disorder all of which could potentially lead to dangerous acting out. If a clinician is concerned that violence is imminent, a voluntary or involuntary hospitalization could temporarily prevent harm to self or others. Most states permit clinicians to break confidentiality when the professionals assesses that the client is a danger to self, others or the property of others. This entails the clinician calling the local law enforcement authorities to initiate an involuntary commitment to a locked mental health facility.
Assessing Risk for Violence
Prediction of violence remains a controversial concept in the field of psychology. Although some theoreticians say that violence prediction or lethality-risk is an immeasurable concept in clinical practice and that professionals should refrain from making such predictions, others suggest that abandoning the attempt to make accurate predictions is somewhat premature at this time. Research has indicated that we are likely to be wrong as often as we are right about predicting violent behavior in the general clinical and criminal population. However, studies looking at factors that predict violence have shown that the best predictor of future behavior is past behavior. Therefore, a person who has established patterns of physical, sexual, or psychological violence towards his or her spouse is likely to continue that pattern unless there is some intervention that is directed to changing these behavior patterns, such as psychological treatment (and even then, the violent behaviors can reoccur). Domestic violence offenders are more predictable for this reason. However, how does one differentiate the degrees of risk within this particular population? Mostly from common sense, and secondly from a thorough risk assessment. In general, all forms of violence are potentially lethal. One could die from a push that results in a fall down a flight of stairs or by hitting ones head on furniture as easily as one could die from being strangled. However, some forms of violence are inherently more lethal, even though lesser forms of violence can also cause serious injury or death. However, examining the history of violence alone is often not sufficient to make a clinical determination of risk. Therefore, in order to differentiate candidates for your program you need to explore other factors, some of which have been more strongly associated with violence potential and whereas others may simply help you fill-in the picture. Additionally, certain behavior patterns may be indicative of a clients impairment in judgment (which could result in aggressive acting-out) and therefore swift intervention may be not only appropriate but legally and ethically required.
Researchers who have studied dangerousness have suggested that individual traits of the perpetrator are not sufficient to increase our ability to predict who will and who will not commit violence. Other factors must be considered, and the empirical data appears to support this idea. Ecological theories that consider biological, psychological, interactional, family, community and social factors can help professionals develop a better understanding of why violence occurs. The domestic violence field has been slow to adapt this view. Historically, feminist activists have believed that violence is a result of social forces, psychologists have tended to focus on the individual and systemic theorists have argued that family dynamics are the main contributors to violence. Each group has continued to argue vehemently in support of their theoretical orientation. In fact, public policy affecting treatment for offenders has been molded according to these unproven singular theories of the etiology of violence. Yet, when examined closely no one theory can fully explain who some people with similar social experiences, family dynamics or personal characteristics, develop problems with violence and others do not. Most recently researchers have suggested that context also plays an important role in whether or not a particular violent-prone individual will act out their aggression. In other words, there exists situational variables, such as victim characteristics, environmental factors, etc. that may trigger a particular persons aggressive reactions.
What all of this means is that when assessing risk, we must be very careful not to over simplify this complex phenomenon, thereby reacting when its unnecessary and not responding when the situation calls for intervention. When we become too invested in our narrow perspective, we inevitably miss other significant data that can provide us with important data necessary to more accurately assess risk and the need for clinical intervention.
Confidentiality: Child Abuse
In an ideal world the child abuse reporting statutes would be clear, unfortunately the opposite appears to be the case. Not only are there inconsistencies between states, but there are also inconsistencies within jurisdictions within each state. For example, child abuse reporting is a statutory requirement in every state. In Massachusetts, the standard for reporting is "...reasonable cause to believe...", whereas in Mississippi the standard is "...that a child brought to him or coming before him..." Thus the standard can vary from reasonable suspicion to actually seeing the abused child. Similarly, it has been the authors experience that a child protective service worker in one county in California, when given a specific set of circumstances, will suggest making a formal report whereas another worker either in the same or different county may not recommend making a formal report.
When surveyed, mental health professionals indicated that the child abuse
reporting mandate was the most common of a number of confidentiality
issues confronted in the course of their work. The findings of numerous studies
have indicated that a significant number of clinicians have complied
inconsistently with the legal mandate to report abuse. While there has been
speculation that under-reporting results from professional responsibility and
clinical judgment being subordinated to clinicians serving a policing function
and concern for the patients welfare others believe that under-reporting, in
part, stems from differences in the interpretation of the child abuse laws as
well as situational and therapist characteristics. The problem of reporting is
critical in cases of domestic violence as treatment decisions will be made based
on the types of abuse occurring within the family and reports of child abuse may
ultimately affect the clients status within the criminal justice system.
Moreover, additional acts of abuse are frequently detected and/or perpetrated
after the commencement of treatment and therefore the clinician working with
this population must be prepared to deal with the need to report child abuse in
addition to family violence.
The basic information that clinician need in order make informed clinical decisions is to be clear what constitutes child maltreatment according to scholars in the field and what is the reporting threshold within any particular community. This information, in conjunction with clinical consultation, will provide clearest direction necessary to enhance optimal decision making and thus, outcome.
While each type of maltreatment (physical abuse, sexual abuse, neglect and psychological abuse) is distinct in principle, in practice there is a great deal of overlap so that clinicians will rarely see only one type of abuse. However, for the sake of reporting, it is important to identify each type of abuse, describe it clearly based on the information received from the patient or family member.
The Reporting Mandate
All states have clear requirements as to how a child abuse report is completed. In California, the law indicates that a therapist must contact social services immediately, or as soon as practically possible, and follow-up with a written report within thirty-six hours once the reporting threshold standard has been met. The failure to report child abuse is a misdemeanor punishable by a fine and/or imprisonment.
Consultation with colleagues remains an important component in assisting the clinician in deciding whether or not to report. In fact, consultation has been found to be empirically correlated positively with child abuse reporting. This may not always be possible, and in those situations when an immediate decision must be made, a clinician may call the appropriate reporting agency and describe to the on-call intake worker the relevant case facts without initially revealing names of the parties. The intake worker may either ask the right questions that will help the clinician decide the best course of action or will inform them whether the reporting threshold has been met.
It is important for mental health professionals to meet with law enforcement
and child protective service personnel in their community to discuss
interpretations of the current statutes as well as polices and procedures for
reporting and case follow-up. Clinicians are frequently unaware of the outcome
of their reports to child social services, therefore building a relationship
with these professionals tends to enrich both the clinical community as well as
social service personnel.
Confidentiality: Elder and Adult Dependent Abuse
Whereas the reporting of abused children has been in law for approximately thirty to forty years, the laws requiring therapists to report abused elders or dependent adults we enacted in the past twenty years. According to California law an elder is considered someone 65 years or older. A dependent adult is defined as any person between the ages of 18 and 64 who has a physical or mental limitation that restricts his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. This includes patients who are inpatients at a 24-hour health facility. Recently amended, the elder/adult dependent abuse reporting law in California mandates that mental health professionals report physical (including sexual) abuse, abandonment, isolation, financial abuse and neglect. Like the child abuse reporting law, failure to report is a misdemeanor punishable by a fine and/or imprisonment.
For a short period of time, there was talk in California about using the adult dependent abuse law to justify the reporting of domestic violence with victims seeking psychotherapy services. It was argued that some abused women may be so psychologically impaired due to depression and/or post-traumatic stress disorder as a direct result of their victimization, that they may qualify as suffering from a mental limitation that restricts her ability to carry out normal activities or protect her rights. However, one would have to reserve this type of intervention for only those cases where the patient is so impaired, that they are unable to function for the most part. Most abused women do not present in this manner. Another problem with this type of reporting is that it could inadvertently result in discouraging victims from seeking treatment services. Lastly, it was not clear how adult protective services could intervene in these cases and what leverage they would have to force the perpetrator into treatment .
Confidentiality: Reporting of Domestic Violence by Health Professionals
California Penal Code Section 11160-11163.5 provides mandatory reporting for any health practitioner provides medical services for a physical condition caused by domestic violence. This includes individuals employed in a physicians office, health facility, clinic, local or state public health department or a clinic or other type of facility operated by a local or state public health department. The injury must meet at least one of the following criteria.
The health practitioner must make report immediately or as soon as practically possible by telephone to the local law enforcement agency. A written report shall be prepared and sent to the local law enforcement agency within two working days of receiving the information regarding the person.
Originally this law was written to include mental health professions. But there was concern that such a mandate would discourage victims from seeking mental health services. Although this law is primarily directed to physicians and other medical personnel, mental health professionals who working within these mandated settings may be required to report abuse disclosed by victims seeking medical services.
Confidentiality With Regard to Fellow Group Members
When treating perpetrators in a group setting, the program can not guarantee that confidentiality will not be violated by group members. In order to address this issue, programs should require that all group members sign a mutual agreement to confidentiality. In this agreement programs should require that patients promise to hold confidential all communications made by participants and all information obtained from or about any participant while in a group therapy session. Programs should ask participants to make these mutual promises of confidentiality to help to ensure that each member of the group will feel more comfortable revealing personal details about their lives enabling the therapist to obtain as much information as possible. This, of course, is necessary to receiving the maximum benefit from the treatment process. Although this measure does not guarantee that all members will abide by the rule, it does set the expectation that can then be addressed clinically or administratively when a client does violate his/her agreement.
As previously noted confidentiality is both an ethical issue and essentially involves the restriction on the volunteering of information (with certain limited exceptions) outside the courtroom - whereas privilege is a legal issue involving rules of evidence involving the right to withhold testimony in a legal proceeding. The issue of privilege becomes relevant when a therapist receives a subpoena to produces records or testify in a legal proceeding. Like confidentiality, privilege stems from our constitutional right of privacy, particularly when it comes to special relationships, such attorneys and their clients, clergy and their penitents, physicians and their patients and, of course, therapists and their patients. The premise upon which privilege is based is that it would make it very difficult for people to be honest with attorneys, therapist, etc. if they didn't have some protection from outside sources. However, these protections are not absolute, there are exceptions. For example, In California, the exceptions to the psychotherapist-patient privilege are set forth in Section 1010 of the Evidence code. These statutes define who is considered to be a psychotherapist and what information or under what basis the privilege is not covered. However, like most legal and ethical issues, these exceptions are not always clear. Therefore, clinicians will need to consult with legal counsel when situations involving privilege arise in the course of their work.
The most common privilege exception is the one referring to a clients danger to self, other or the property of others. In California, this exception is Section 1024 of the Evidence Code. The specific wording of the code is as follows:
There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and disclosure of the communication is necessary to prevent the threatened harm.
Therapist typically utilize this statute when needing to initiate an involuntary commitment of a patient. People often wonder how this statute relates to the Tarasoff ruling. Like most issues in law, the answer to that question is fairly complicated. Tarasoff refers to situations when a patient presents a serious danger of violence to an identifiable person(s). Section 1024 of the Evidence Code appears to overlap with Tarasoff in that when a client makes a serious threat of violence toward an identifiable victim, the therapist is required to take steps to protect the intended victim of violence. The therapist is permitted to violate confidentiality pursuant to the Tarasoff mandate or through Section 1024 of the Evidence Code. However, when patients present to be a danger to self (suicidal) or others (high lethality risk) the therapist may utilize Section 1024 of the Evidence Code to break confidences and either initiate an involuntary hospitalization or communicate with others necessary to prevent the potential harm. However, given the history of the duty to protect law and the research in prediction of dangerousness, therapists should be extremely careful about when and how they utilize this statute to violate confidentiality.
In most cases, clients will be referred post sentencing and therefore already on probation. However, this may not always be the case. Therapists need to be familiar with laws governing privilege, particularly when a client is asked to disclose acts of violence prior to trial. Certain statements made by clients may be discoverable unless there exists a confidentiality agreement between the certified treatment providers and the local district attorney or prosecutors office. Certain exceptions in evidentiary procedure may require the therapist to testify against their client in a court of law. Most therapists will choose to testify when ordered by the judge rather than be found in contempt of court and face a jail sentence, a fine or both. Therefore it is critical that therapists inform their clients of this limitation to confidentiality in these cases.
What happens when you receive a subpoena for records?
First instinct should be to claim privilege and not produce records. First you need to contact the patient. Then you may want to contact the patients attorney once your have procured a signed authorization to release information. In general you will take direction from your patient and her/his attorney. If the law allows the records to be released (for example if the client is preparing a mental state defense), then it is usually best to send the records to the patients attorney and let that person release them to the requesting party. If the patients attorney does not want the records released, that person will usually file a motion to quash the subpoena. In criminal and civil trials the judge will ultimately rule on the admissibility of the records and then both parties must comply with the courts rulings. Once again, it is important to know the psychotherapist-patient privilege codes because in some situations there is no privilege and therefore records will be admissible in court proceedings and that you and your client should know this fact ahead of time. Therapists are strongly encouraged to seek legal council whenever confidentiality or privilege issues occur in a case.
Legal Issues: Patient Access to Records
California Health and Safety Code, Section 1795, specifies that every person has the responsibility for decisions regard their own health and therefore has access to information regarding their condition. This statute provides that patients shall be entitled to inspect their own records upon presenting to the health care provider a written request and upon payment of reasonable clerical costs incurred in the locating and making the records available. The health care provider must then permit such inspection within five working days after receipt of the written request. Copies of records must be transmitted within 15 days after receiving the written request. The written request from the patient must specify the records to be copies and must be accompanied by a fee to defray the costs of copying (.25 or .50 cents per page from microfilm) plus any additional clerical costs incurred in making the records available. The health care provider may require reasonable verification or identity prior to permitting inspection or copying of patient records, providing this requirement is not used oppressively or in a discriminating fashion to frustrate or delay compliance. The provider will not be liable for any consequences which result from disclosure of the patient records. Failure to comply with this request constitutes unprofessional conduct which can result in licensing board sanctions. If the provider determines that there is a substantial risk of significant adverse or detrimental consequences to a patient in seeing or receiving a copy of their records, the provider may decline as long as they follow certain statutory mandates:
This statute also indicates that a health provider can provide summary of the clinical record. Summaries must be available within 10 working days (Could be 30 days if record is large). The summary may include the following information:
Most States have an equivalent statute with regard to patient access to records. Therapists are encourage to familiarize themselves with their local requirements so that they can accurately comply when a patient makes such a request.
How long should we keep records?
Probably no less than seven years after the termination of therapy and at least one year after the minor has reached 18. The American Psychological Association mandates that psychologists maintain the full record for three years or that full record or summary be kept for an additional 12 years. Record keeping appears to be an increasing area of focus both for professional organizations and governmental bodies.
Most ethical codes recommend against dual relationships. Because of their influential position with respect to patients, therapists are expected, base on ethical principles of practice, to avoid exploiting the trust and dependency of their patients. Therefore therapists should avoid dual relationships with patients that are reasonably likely to impair professional judgment or lead to exploitation. A dual relationship occurs when a therapist and his/her patient engage in a separate and distinct relationship either simultaneously with the therapeutic relationship, or during a reasonable period of time following the termination of the therapeutic relationship. Not all dual relationships are unethical, and some dual relationships cannot be avoided. When a dual relationship cannot be avoided, therapists should take appropriate professional precautions to insure that judgment is not impaired and that no exploitation occurs. The most common types of dual relationships are when therapists engage in sexual intercourse, sexual contact or sexual intimacy with a patient, or a patients spouse or partner, during the therapeutic relationship, or during the two years following the termination of the therapeutic relationship. Other acts which would result in unethical dual relationships include, but are not limited to, borrowing money from a patient, hiring a patient, engaging in a business venture with a patient, engaging in a close personal relationship with a patient or entering into therapeutic relationships with persons with whom they have had a sexual relationship.
Some domestic violence clients seek therapy to increase their chances of prevailing in either civil or criminal court. Therefore, a client may request their therapist contact their attorney to help provide information for their case. Therapists may end up serving the client in two capacities, and thereby entering into a dual relationship. Once again, not all dual relationships are unethical, only those that are reasonably likely to impair professional judgment or lead to exploitation. However, it is not always easy to determine with foresight which dual relationships will turn out alright and which ones will become problematic. Therefore, it is generally prudent practice to avoid all dual relationships if at all feasibly possible.
For example, consider the following case scenario to see where the above situation can possibly lead. A client presents to enter into a domestic violence treatment program. The client is charged with assault with a deadly weapon and therefore the potential consequences includes incarceration. The client asks the therapist contact his attorney, to seek if there is anything the therapist can do to help his case. Here is the first dilemma. Is the evaluator going be the clients therapist or expert witness/advocate in court or both? Although these roles may not always be mutually exclusive, it is generally not a good idea to mix them. Take for example the evaluating therapist who decides to also testify for a client during the trial phase. If this therapist becomes the treatment provider during the probationary phase of the process, they may end up having to report additional acts of violence that possibly may result in the client being incarcerated. Of course, this is assuming the client stays with the evaluating therapist who was not able to convince the jury of a more favorable disposition in the criminal case, in the first place. Additionally, expert witnesses are suppose to be objective, with no investment in the outcome of the case other than to present their clinical findings or professional opinion to assist the trier of fact. A therapist, on the other hand, is more typically viewed as a support and advocate for their client. Acting in both capacities can result in a compromise in both roles. The appearance of objectivity is necessary for effective expert testimony. A treating therapist acting an expert witness can appear as having a bias or financial or personal interest in the outcome of the case. At the same time, a treating therapist who is working to develop a therapeutic alliance may appear unnecessarily distant or uninvested to a client who is wanting someone to fight on his/her behalf, not to mention the disappointment that may develop within the client as a result of an unfavorable disposition. Clearly, these roles may not be compatible. Recent ethics revisions by the American Psychological Association, discourage therapists who serve in a therapeutic capacity to refrain from serving as an expert witness and visa versa. Therefore, it is recommended that therapists choose one role or the other and not try to help their clients in too many ways.
Ethical Issues: Client Fees
Money is almost always an issue when treating client with less than ideal motivation. The vast majority of persons seeking treating for violence are doing so under duress. They are either referred by the criminal justice system or being pressured by their partner or family. Monetary issues are rarely straightforward and therefore are likely arise for multiple reasons. First, many domestic violence clients are generally less motivated than other clients who usually seek services as a result of their own realization of their need for treatment or the value of such services. The domestic violence client is usually not recognizing that he/she is having a problem at all. These clients typically view their partner or the system as the problem rather than themselves. Although some of these clients may be have been shocked into recognizing their need for treatment as a result of their arrest and conviction, however these more-motivated individuals are far and few between. If one does not see the need for or value of therapy, they are certainly not going to want to pay for it. Another reason clients may bring up financial issues is because many clients who enter into treatment through the criminal justice system are poor, unemployed or underemployed. Many of these clients have multiple psycho-social stressors violence only being one of them. Those clients who are a part of the working-poor in this country may not have qualified for public legal assistance and therefore may have paid exorbitant legal fees as a result of their defending themselves in court. Additionally, many male clients do not see the value of psychotherapy and therefore this attitude is likely to get played out in the financial arena. For many clients, their culture may include prohibitions of talking to non-family members about personal problems, let alone paying for the services. For some people, seeing a therapist creates tremendous feelings of vulnerability for clients in that the act itself is a symbolic acknowledgment of the clients need. These vulnerable feelings may include fears of dependency on the therapist. Many clients do not understand why one must pay for caring. In therapy, what one is paying for is not material and therefore is not always immediately apparent to the client. For these and other reasons, money represents a multitude of issues for the court mandated client and therefore must be addressed both pragmatically as well as clinically. Therapists must address fee issues with clarity and directness with their clients.
Many private therapists and domestic violence programs hope that the probation officers or courts can help to resolve financial issues with court-mandated clients. This is an inappropriate use of the criminal justice system. When clients accrue a large balance, it is usually the therapists fault and therefore the courts should not be responsible for remediating the situation. Unfortunately, most therapists have not received any formal training in graduate school on either the clinical or pragmatic issues related to finances. Money issues often getting acted out by both the client and the therapist. The dance can be so subtle, that neither the client or therapist may be aware they are engaged in this complicated interaction.
The simplest way to avoid financial acting out is for therapists to set their fee and remain firm as to the amount, how its paid, when its paid, and what happens when its not paid. From the onset of therapy, clinicians should make their financial arrangements with patients understandable. Fee policies should be in writing. It should be provided to the client either when the initial appointment is scheduled or at the first session. Clients must agree to fee policies before being accepted into the program. Fee policies generally should include charges for canceled or missed appointments, as well as any interest to be charged on unpaid balances. The fee policy may also include information about increases in fee, such as the amount of notice clients will receive prior to fee increases, and the maximum amount each fee increase. Therapists should also give their clients reasonable notice to patients with unpaid balances of their intent to sue, or to refer for collection. Whenever legal action is taken, therapists should avoid disclosure of clinical information. Whenever unpaid balances are referred to collection agencies, therapists should exercise care in selecting collection agencies and will avoid disclosure of clinical information. All of this information should also be included in a financial policy.
Generally it is not a good idea to accept goods, services, or other non-monetary remuneration from patients in return for professional services. Bartering is specifically prohibited by many state licensing agencies as well as professional organizations. Such arrangements often create conflicts and may lead to exploitation or distortion of the professional relationship.
Insurance is another area where clients may act-out. They will ask therapists to accept the payment from the insurance company as payment for services. Of course therapist must understand that this is not only unethical, but it is illegal. Such practices constitute insurance fraud. Insurance companies pay for services with the understanding that clients will be contributing to the expense. If a clinician charges $100 for a service and the insurance pays eighty percent, then the client must pay the twenty dollar balance. If the therapist accepts the $80.00 as payment for services, then the services are in reality only $80.00. Therefore the insurance company is only obligated to pay $64.00.
Another way that therapists place themselves in a compromised position is when they manipulate the diagnosis either to get coverage or to minimize the seriousness of the diagnosis. However, therapists should represent facts regarding services rendered and diagnostic information fully and truthfully to third party payers otherwise run the risk of insurance fraud.
One way of avoiding financial problems is for individual clinicians and programs to set their fees based on: the general economic status of the population being served, what it costs to provide the service, and community standards. Sliding scale fees or co-payment schedules can raise concerns about discrimination unless there is a very clear basis for how the fee is calculated. Particularly in group treatment, unspoken dynamics regarding fee can get played out in the group process. Therefore, it is simpler for therapists to determine a fee that the vast majority of clients can reasonably afford so that every client is paying the same fee for service.
In the real world events occur that may affect a clients ability to pay. When these situations arise, clinicians must be extremely careful with how the fee issue is handled. Alternatives may include reducing a fee for a period of time, running a balance of unpaid fees, stopping treatment and referring to a low fee agency, assisting the client in obtaining public assistance, procuring funding from other sources (a scholarship fund or assistance from the court). There is some question among ethicists, as to whether having the client establish a large balance is in fact an unethical dual relationship. Professionals who argue against this practice believe that the therapist is engaging in two distinct relationships with the client. One of being their therapist, the other in effect of lending the client money for services. In addition, providing the client with a large balance can be viewed as being exploitative, not to mention drastically impacting the therapeutic relationship. For these reasons we do not recommend this particular course of action. No matter what method the therapist utilizes to resolve the situation, any change in fee or financial matters must be thoroughly explained to the client so that there is no confusion as to how the client will pay for the therapy or repay for the services provided.
It is a general ethical standard that therapist continue therapeutic relationships only so long as it is reasonably clear that patients are benefitting from the relationship. It is unethical to maintain a professional or therapeutic relationship for the sole purpose of financial gain to the therapist. The primary goal of treatment is to insure family safety by helping clients learn alternatives to using violence to cope with life's problems. Yet, how long should this treatment last? How do we know when we have achieved the goal of stopping the violence with a client? These are difficult questions to answer. Many clients stop their violence for fear of being arrested or going to jail for violating probation. Other clients develop a strong commitment to the change process and as a result transform their lives.
Research indicates that approximately 40-50% of clients re-offend within two years post treatment. Studies also suggest that only approximately less than 10% of clients completely desist from all forms of violence after two years post treatment. This means the vast majority of clients continue to use psychological violence, even if they stop their physical violence. State mandates for domestic violence treatment or education vary from state to state. Lengths of intervention range from four to twelve months. No matter what the statistics indicate or what the state mandates with regard to treatment, clinicians are ethically obligated to evaluate each client and make specific treatment recommendations based on their evaluation.
Given the growing research on the topology of perpetrators, it is unrealistic to believe that one approach or set of interventions will bring about a change in all individuals. Although there may be overlap, each client needs to be evaluated and treated on their own unique set of circumstances. Clients who have had established patterns of violence for many years and are in a great deal of denial may receive different recommendations and interventions from those individuals who have only acted violently once or twice, genuinely feel remorse for their actions and are ready to change their lives. Obviously, the former population presents particular difficulties for the treating clinician, one of which is when do you consider someone not benefitting from the treatment interventions.
Unfortunately, no psychometric tool has been developed to date that accurately assesses a persons benefit from domestic violence treatment. Therefore the clinician must rely on clinical data, partner reports and peer-evaluations to make this determination.
Therapists should routinely evaluate whether or not a client is benefitting from the treatment process. In order to assess this, clinicians need to be very clear as to their treatment goals and behavioral markers related to their goals. The most important question in determining whether or not to terminate a client is to determine how well the client has achieved the primary therapeutic goals as indicated by the clinical data.
Programs that utilize patient evaluation forms (a periodic assessment written by the therapist based on the clients performance) look to these evaluations to assess progress over time. Additionally, one should theoretically be able to track a patients progress by reading the clinical chart. In programs that have contact with their clients partner, can also review those contact records to assess whether or not the client is making adequate progress. These sources should give the therapist, as well as any objective evaluator, a good idea of how the client has advanced in the program.
Given the complexity of issues seen presented by domestic violence perpetrators, the high risk nature of the population and the need for clarity to third parties it is important that clinicians organize their conceptualization the case and keep track of their interventions in a concise manner. Here is where a formalized treatment plan can be extremely helpful.
Treatment plans typically consist of clinical goals, objectives and methods. The goal is an overall psychological, cognitive or behavioral change the therapist and client determine is the stated goal of therapy. The objectives are the steps one takes to reach the goal. The methods are the techniques the therapist employs to achieve the objectives and thereby realize the overall therapeutic goals.
Not all clinicians utilize treatment plans in such a formal way. Most professionals have in mind the clinical goals and how they are being achieved. However, given the clinical complexity of domestic violence cases, it is a good idea to use a treatment plan a means to organizing and conceptualizing the treatment. A standard treatment plan describe the overall goals (e.g., stopping violence), objectives (e.g., anger management) and methods (e.g., time-out). However, stopping violence is rarely sufficient to address the range of clinical issues most domestic clients present in therapy. Therefore, additional clinical goals will be necessary for a treatment plan to be complete. There is some evidence that addressing childhood abuse issues early in therapy is more effective with clients with personality disorders (other than antisocial personality disorder). In these cases, violence is a means to regulate the intense emotional affect that stems for these early childhood experiences. Expecting the client to control the defense, without also exploring the origin of and working through the intense emotions and negative cognitions associated with the abuse, may be too unrealistic for the client. Therefore for significant number of clients a second treatment goal may related to childhood abuse issues. Additionally, many clients present with psychoactive substance abuse and dependency disorders. For these disorders, particularly those that rise to the level of dependency, clinicians may want to require client to attend adjunctive substance abuse treatment. However, whether the client is in adjunctive treatment or not, one treatment plans goal should include some reference to controlling psychoactive substance use.
The treatment plan is an excellent tool that may help the clinician organize the clients clinical material in such a way that the clinician may effectively assist the patient in staying focused on the tasks at hand in therapy. The treatment plan also helps clinicians to prioritize their objectives and interventions when confronted by the multitude of issues presented by clients. Lastly, and perhaps most importantly, the treatment plan allows the clinician to track the process of treatment so that clients can be effectively evaluated for progress reports.