Legal and Ethical Issues with Problematic Trainees

Association of Psychology Postdoctoral and Internship Centers

Seventh Membership Meeting and ConferencePortland, Oregon

Stephen Behnke, JD, PhDAPA Ethics Office

April 17, 2009

The 2009 APA Student Ethics Writing Prize!

www.apa.org/ethics

$1000Submissions due in December

Roundtrip to 2010 APA Convention in San Diego, with three nights stay

Student presents winning paper at Convention

Paper is published in Ethics and Behavior

Five Thoughts

Regarding

Legal and Ethical Aspects of Responding to Problematic

Trainees

Five Thoughts

1.The relationship among law, ethics, and good psychology training

2.Assessment and remediation plans3.The ethics of “Gatekeeping”4.Resources5.A note on the issue of stigma

Five Thoughts

I.The relationship among law, ethics

and good psychology training

Not to be construed as legal advice

Good law, good ethics, and good psychology training practices go

hand-in-hand

Notice and Process

Central to both law and ethics

APA Ethical Standard 7.02 Descriptions of Education and Training

Programs

Psychologists responsible for education and training programs take reasonable steps to ensure that there is a current and accurate description of the program content (including participation in required course- or program-related counseling, psychotherapy, experiential groups, consulting projects, or community service), training goals and objectives, stipends and benefits, and requirements that must be met for satisfactory completion of the program…

APA Commission on AccreditationGuidelines and Principles for Accreditation of

Programs in Professional Psychology (2008)

Domain E: Student-Faculty Relations

4. At the time of admission, the program provides the students with written policies and procedures regarding program and institution requirements and expectations regarding students’ performance and continuance in the program and procedures for the termination of students.

An Example of Notice:

Competency Benchmarks Document (July 2004)

Product of the Competency Benchmarks Work Group convened by the APA BEA in

collaboration with the Council of Chairs of Training Councils

Competency Benchmarks Document (July 2004)

Students and trainees in professional psychology programs (at the doctoral, internship, or postdoctoral level) should know—prior to program entry, and at the outset of training—that faculty, training staff, supervisors, and administrators have a professional, ethical, and potentially legal obligation to: (a) establish criteria and methods through which aspects of competence other than, and in addition to, a student-trainee's knowledge or skills may be assessed (including, but not limited to, emotional stability and well being, interpersonal skills, professional development, and personal fitness for practice)...

An Example of Notice:

Competency Benchmarks Document

This document represents the product of the Assessment of Competency Benchmarks Work

Group convened by the APA Board of Educational Affairs in collaboration with the Council of Chairs

of Training Councils (CCTC)…(June 2007)

Competency Initiatives in Professional Psychology

Education DirectorateAPA Website

www.apa.org/ed/graduate/competency.html

Competence as the cornerstone of ethics

Competency Initiatives in Professional Psychology

• Culture of competence emerging

• Competency initiatives by related organizations

• APA initiatives on assessing and defining competence

• Competency assessment toolkit for professional psychology

• Resources related to students with competence problems (remediation plan template)

A Note on Competency Initiatives in Professional Psychology

APA Ethical Standard 2.05 Delegation of Work to OthersPsychologists who delegate work to employees, supervisees, or research or teaching assistants…take reasonable steps to…(2) authorize only those responsibilities that such persons can be expected to perform competently on the basis of their education, training, or experience, either independently or with the level of supervision being provided; and (3) see that such persons perform these services competently.

Ensure that whatever trainees are asked to do, supervising faculty are competent to do (e.g., language)

Strong convergence between principles in law, ethics, and training

A good working relationship with your attorneys will help prevent situations from becoming

adversarial

Try to work with, not against, your attorneys; educate your attorneys about what you do

Orientation of APA General Counsel:

How can we help you achieve your goals?

• Make clear to trainees in writing what is expected of them

• Make clear to trainees what policies apply if they fall short of

what is expected of them

• You be clear what policies apply if trainees fall short of what is

expected of them

The Law of No Surprises• What is expected of trainees?

• What happens if a trainee falls short of expectations?

• Whether a particular trainee is meeting program expectations

• The status of a particular trainee in the program vis-à-vis a remediation plan

• Be thoroughly familiar with the process your program has set forth

• Follow your process carefully

• Document that you have followed your process

• Program faculty speak with one, not multiple, voices regarding process

Wester, S. R., Christianson, H. F., Fouad, N. A., & Santiago-Rivera, A (2008). Information processing as problem solving: A collaborative approach to dealing with students exhibiting insufficient competence. Training and Education in Professional Psychology, 2, 193-201.

APA Ethics CodePrinciple C: Integrity

Psychologists seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology…

An interesting article from theMontana Kaimin

A Quotation

"We are our own worst enemies. In the guise of being humane, we fail to tell

students the truth."

Professor Nabil F. HaddadChair, Department of Psychology

University of Montana

Beware of the “rubber band” response to problematic

trainees

How far is your rubber band stretched?

Gilfoyle, N. (2008). The legal exosystem: Risk management in addressing student competence problems in professional psychology training. Training and Education in Professional Psychology, 2, 202-209.

Five Thoughts

II.Assessment and Remediation

The Notion of “Problematic” Entails an Assessment

Every problem has a history and a context

McCutcheon, S.R. (2008). Addressing problems of insufficient competence during the internship year. Training and Education in Professional Psychology, 2, 210-214.

A Question:How much of the variance belongs to

whom/where?

Assess at individual and system levels

Forrest, L., Elman, N., & Miller, D. (2008). Psychology trainees with competence problems: From individual to ecological conceptualizations. Training and Education in Professional Psychology, 2, 183-192.

Beware of the “pot pourri,” “kitchen sink” and “more is

better” approaches to remediation plans

Write a focused remediation plan

Tie the remediation plan to your assessment of the problem

A trainee’s remediation plan follows from

an assessment of the trainee’s deficits that follows from

the program’s identification of competencies required for successful

completion of the program

Three Assessment-related Questions:

• How does a program assess a trainee’s competence?

• Do we ever really know what our trainees are doing?

• At the outset of the training program, would we ever consider assessing a trainee’s

“baseline ethical understanding”

Baseline Ethical Understanding

• Contact outside of sessions?• Contact after therapy ends?• Accepting gifts?• Disclosing personal information to client?• Self disclosures on the Internet?

Tie the remediation plan to your assessment of the problem

A Question:

Which aspect of your trainee’s problem or challenge will this aspect of your

remediation plan address?

Tie the remediation plan to your assessment of the problem

Focus on behaviors that need to change rather than diagnoses

Remediation Plan Templatewww.apa.org/ed/graduate/competency.html

APA Ethical Standard 7.04:Student Disclosure of Personal Information

Psychologists do not require students or supervisees to disclose personal information in course- or program-related activities, either orally or in writing, regarding sexual history, history of abuse and neglect, psychological treatment, and relationships with parents, peers, and spouses or significant others except if (1) the program or training facility has clearly identified this requirement in its admissions and program materials or (2) the information is necessary to evaluate or obtain assistance for students whose personal problems could reasonably be judged to be preventing them from performing their training- or professionally related activities in a competent manner or posing a threat to the students or others.

A cautionary note regarding therapy as an aspect of

remediation

APA Ethical Standard 7.05Mandatory Individual or Group Therapy

(a)When individual or group therapy is a program or course requirement, psychologists responsible for that program allow students in undergraduate and graduate programs the option of selecting such therapy from practitioners unaffiliated with the program.

(b)Faculty who are or are likely to be responsible for evaluating students' academic performance do not themselves provide that therapy.

Five Thoughts

III.The Ethics of “Gatekeeping”

Training as “Gatekeeping”

Gatekeeping involves:

1) A passage between

2) Two or more places with the

3) Authority to allow passage, or not, and the

4) Responsibility for that decision.

An Ethical Dilemma in Training

Principle A: Beneficence and Nonmaleficence

vs

Principle E: Respect for People’s Rights and Dignity

Benefiting/Not harming the client

vs.

Allowing trainees to make their own mistakes, an inevitable and important part of their development

Gatekeeping involves considering and balancing multiple ethical responsibilities:

To the publicTo the trainee

To the professionTo your program

To the other trainees in the cohort

Would you refer a close friend or family member to this individual?

Beware of the

Promoveatur ut Amoveatur

Principle

The ethics of feedback in the gatekeeping process

A return to notice and process

APA Ethical Standard 7.06 Assessing Student and Supervisee Performance

(a) In academic and supervisory relationships, psychologists establish a timely and specific process for providing feedback to students and supervisees. Information regarding the process is provided to the student at the beginning of supervision. (emphasis added)

(b) Psychologists evaluate students and supervisees on the basis of their actual performance on relevant and established program requirements.

Commission on Accreditation Guidelines & Principles (2008)

Domain E: Student-Faculty Relations

4. …Students receive, at least annually, written feedback on the extent to which they are meeting the program’s requirements and performance expectations. Such feedback should include:(a) Timely, written notification of all problems that have been noted and the opportunity to discuss them;(b) Guidance regarding steps to remediate all problems (if remediable); and(c) Substantive, written feedback on the extent to which corrective actions are or are not successful in addressing the issues of concern.In all matters relevant to the evaluation of students’ performance, programs must adhere to their institution’s regulations and local, state, and federal statutes regarding due process and fair treatment of students.

A significant challenge in training:

When should the program intervene and what intervention is most appropriate at that time?

When should the program intervene and what intervention is most

appropriate at that time?

Primarily remediation or discipline?

Your answer will have implications for your process

APA Ethical Standard 3.05:Multiple Relationships

Multiple multiple relationships exist within training programs,

rendering an appropriate response complicated

Multiple relationships can get in the way of implementing a good remediation plan

A potential impediment to responding to problematic trainees:

Beware of the impulse to be helpful and do good

Five Thoughts

IV.Important Resources

Important Resources1) APA Ethics Code (www.apa.org/ethics)2) APA Education Directorate (www.apa.org/ed)3) Association of Psychology Postdoctoral and Internship

Centers (appic.org)

4) APA Guidelines: Multicultural guidelines; Guidelines for working with older adults; Guidelines for psychotherapy with lesbian, gay, and bisexual clients. (www.apa.org)

5) Your jurisdiction’s statutes and regulations6) Council of Chairs of Training Councils

(www.psychtrainingcouncils.org/)7) Association of Directors of Psychology Training Clinics

(www.adptc.org)8) Association of State and Provincial Psychology Boards

(ASPPB.org)

Five Thoughts

V.A Note on the Issue of Stigma

The Americans with Disabilities Act

• Disability that substantially limits a major life activity

• Can complete essential requirements of program with “reasonable accommodations”

Does not require change in nature of program, lowering program standards, undue expense

APA Office on Disability Issues in Psychology

Anju Khubchandani(202) 336-6038

How disability-friendly is your program?

A Question:

Do you view working with a trainee with a disability

primarily as an imposition or as an opportunity?

National Association of Law Students with Disabilities

www.nalswd.org

Final Observations

First Final Observation:

FERPA(Family Educational Rights and Privacy Act)

Rarely an impediment to a good faith, reasonable disclosure to

others in an educational institution with a need to know

Second Final Observation:Consider responding to problematic

trainees as a competence in an of itself

Who in your training program has this competence?

“To the extent we become better teachers, students will become better professionals” McCutcheon, 2008

Third Final Observation:An important subject to consider:

Legal and Ethical Aspects of Responding to Problematic

Faculty Members and Supervisors

“To the extent we become better teachers, students will become better professionals” McCutcheon, 2008

Fourth Final Observation:

Get students involved and active in professional

associations!

Fifth and Final Observation:APA Convention in Toronto

Saturday, 4-5:50pm, Room 801BThinking Together:

APA and ASPPB Explore Where Ethics and Licensure Converge

Thank You,

APPIC, for including the APA Ethics Office in APPIC’s

Seventh Membership Meeting and Conference!

(202) 336-5930sbehnke@apa.org