Legal and Ethical Issues

Question 1

ADVERTISEMENTS

Answer 1

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:

1. full name as filed with the BBS;
2. license or registration number; and
3. complete title or an abbreviation of the title that has been identified as being acceptable by the BBS.

Question 2

BARTER

Answer 2

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.

Question 3

CLIENT RECORDS

Answer 3

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.

Question 4

CONFIDENTIALITY

Answer 4

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.

Question 5

CONSENT OF UNEMANCIPATED MINORS

Answer 5

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.

Question 6

ACCESS TO THE RECORDS OF MINORS

Answer 6

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.

Question 7

BREACH OF CLIENT CONFIDENTIALITY

Answer 7

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.

Question 8

CONTINUING EDUCATION (CE)

Answer 8

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.

Question 9

DOMESTIC PARTNERSHIP

Answer 9

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)].

Question 10

DISSOLUTION OF MARRIAGE

Answer 10

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.

Question 11

DUAL RELATIONSHIPS

Answer 11

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.

Question 12

EMANCIPATED MINORS

Answer 12

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).

Question 13

EXCEPTIONS T0 PRIVILEGE

Answer 13

The psychotherapist-patient privilege does not apply when

1. the client authorizes a release of information;
2. a therapist is legally mandated to breach confidentiality
3. the client has disclosed a significant part of the information to a third person; or
4. 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).

Question 14

HIPAA’S PRIVACY RULE

Answer 14

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

Question 15

INFORMED CONSENT

Answer 15

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
• the limits of confidentiality.

In order for a consent to be truly informed, three conditions must be met: capacity, comprehension, and voluntariness.

Question 16

INSURANCE FRAUD

Answer 16

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

Question 17

INTERRUPTION OR TERMINATION OF THERAPY

Answer 17

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.

Question 18

INVOLUNTARY COMNIITMENT

Answer 18

Regulations related to involuntary commitment are provided in the Lanterman-Petris-Short Act.

Involuntary commitment begins with a 72-hour hold (a “5l50”). 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 with a recommendation to enter a psychiatric hospital voluntarily

Question 19

MARRIAGE LICENSE

Answer 19

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.

Question 20

PERSONAL PROBLEMS

Answer 20

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.”

Question 21

PRIVILEGE/HOLDER OF THE PRIVILEGE

Answer 21

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.

Question 22

REFERRAL FEES

Answer 22

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(0).

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.

Question 23

REPORTING CHILD ABUSE AND NEGLECT

WHEN AND HOW TO MAKE A REPORT

Answer 23

PC Section 11 166(3) 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 the 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.

Question 24

REPORTING CHILD ABUSE AND NEGLECT

TYPES OF REPORTABLE ABUSE

Answer 24

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.”

Question 25

REPORTING ELDER/DEPENDENT ADULT ABUSE

WHEN AND HOW TO MAKE A REPORT

Answer 25

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.”

Question 26

REPORTING ELDER/DEPENDENT ADULT ABUSE

TYPES OF REPORTABLE ABUSE

Answer 26

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.”

Question 27

SCOPE OF COMPETENCE

Answer 27

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.

Question 28

SCOPE OF PRACTICE

Answer 28

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.”

Question 29

SEXUAL RELATIONSHIPS WITH CLIENTS

Answer 29

MFTs are legally and ethically prohibited from having sexual relationships with current clients and others, and engagng 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 MFTs license.

Question 30

SUBPOENA

Answer 30

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.

Question 31

SUPERVISED WORK EXPERIENCE

Answer 31

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.

Question 32

SUPERVISOR QUALIFICATIONS

Answer 32

Supervisor qualifications are specified in 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.

Question 33

TARASOFF DECISION

Answer 33

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.

Question 34

TYPES OF CHILD CUSTODY

Answer 34

As required by FC Section 3040, child custody is granted in the following order of preference:

1. joint custody
2. either parent according to the best interests of the child
3. the person or persons in whose home the child has been living in a wholesome and stable environment, or
4. 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.

Question 35

UNPAID FEES

Answer 35

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).

Question 36

UNPROFESSIONAL CONDUCT

Answer 36

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
• 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.”