Update on Legal and Ethical Issues in

Behavioral HealthApril 15, 2016: WellSpan

Mike Diller, PsyD John Gavazzi, PsyD ABPP

Glen Moffett, Esquire Tim Norton, Esquire

Today’s Topics

• Duty to Protect Through Warning

• Boundaries: Crossings, violations, and “small town” dilemmas

• Self-Care as Positive Ethics: Competence

Duty to Protect through Warning

Emerich v. the Philadelphia Center for Human Development

Basic Facts• Gad Joseph participated in psychotherapy with Mr.

Scuderi at PCHD

• Joseph had a history of violence toward Teresa Hausler, his live-in partner

• She broke off the relationship and moved to Reading

Basic Facts

• On June 27, 1991, Joseph phoned his therapist and advised that he was going to kill Ms. Hausler.

• A session was scheduled at 11 am. At that session, Joseph indicated that he would kill Hausler if she returned to the apartment to collect her belongings.

Basic Facts• Mr. Scuderi recommended that Joseph voluntarily

commit himself. He refused; however, he stated that he would not hurt Ms. Hausler. Session ends at noon.

• At 12:15 pm, Hausler phones Scuderi, explained that she is returning to their apartment. She wanted to know about Joseph’s whereabouts.

Basic Facts

Mr. Scuderi instructed Hausler to not to go to the apartment and return to Reading.

Pennsylvania Supreme Court Decision

Under certain circumstances, a mental health professional has a duty

to protect by warning a potential third-party victim

Some specifics from the Court

1. When the patient has communicated to the professional, a specific and immediate threat of serious bodily injury against a specifically identified or readily identifiable third party

2. And when the professional determines (or should determine under the standards of the mental health profession) that the patient presents a serious danger of violence to the third party

Some specifics from the Court

3. Then the professional bears a duty to exercise reasonable care to protect by warning the third party against such danger

Lack of clarity in decision

1. “A specific and immediate threat" of serious bodily injury is not well defined

Temporal issue in play

2. “Serious danger of violence" is not well defined

Involves prediction of violence

Important points to note

A careful, thoughtful, and clinically sound assessment must be conducted in the appropriate cases to determine whether the patient presents a serious danger of violence to a third party.

(Future liability may attach if such an assessment is not conducted in an adequate manner.)

Important points to note

The clinician is balancing the need to protect others in the community with the patient’s right to privacy, which is a

cornerstone of psychotherapy.

Community Beneficence versus Autonomy/Fidelity

Helpful HintsConduct a thorough risk assessment

a. Is the threat immediate?b. Is the victim clearly identifiable?c. Does this rise to the level of serious bodily harm or death?d. Not every utterance of violence is a threat.e. Evaluate risk factors

Helpful HintsIf the criteria for warning is not met, but violence remains an issue, it needs to be addressed in therapy

Ongoing focus of treatment

Document any strategies, plans, or updated evaluations

Helpful HintsIf the criteria are met, then a warning needs to be

issued.

a. Who needs to be warned?

b. How is the warning communicated?

c. How much information is shared?

Helpful HintsDocumentation is crucial in such circumstances,

whether or not a warning is issued

• Document relevant points

• Detail violence assessment

• Document any consultations

• Record the decision-making process

Discussion, Concerns, Vignettes, Dilemmas

Audience Participation

Boundaries: Crossings, Violations and Small

Town Issues

Part 2

The What and Why of Boundaries?

• Boundaries refer to the limits placed on the treatment relationship between MHP and patient

• Boundaries are needed because of the inherent power imbalance in the treatment relationship

• MHPs have fiduciary responsibility to their patients, meaning that they will be cared for fairly and appropriately.

• Need to avoid exploitation of the power imbalance

Boundaries are Context-Dependent

Generally considered the therapeutic “frame”

• Type of Therapy (psychodynamic, CBT, etc.)• Treatment Contract/Informed Consent• Geography – small town, rural vs. urban• Setting – military, clinic, private, hospital• Cultural differences/expectations/ethnicity• Faith-based, religious, spiritual

Boundary CrossingsBoundary crossings are inevitable

• Benefit the patient

• Time limited

• Identified as uncommon by the MHP

• Part of the treatment plan

Boundary Violations• Exploiting the patient or relationship

• No direct or indirect benefit to patient

• Can be harmful to the patient

• All sexual relationships with patients are boundary violations and unethical.

Self-DisclosureCrossings Potential Violations

• Disclosing credentials

• Disclosing training

• Pictures/Awards on wall

• Artwork/dress

• Disclosing own parenting style

• Describing family of origin issues

• Detailing substance use

• Outlining current stressors

Potential Areas of Concerns

• Treating colleagues

• Supervision Issues

• Social Media

• Forensic/Legal issues

• Gift Giving

• Business relationships

• Touching/hugging

• Non-sexual social relationships

• Stock tips

Small Town Ethics/Boundaries

• Higher possibility of dual/multiple relationships

• Limits of resources, placing strain on competence

• Geographic/professional isolation

• Community values and expectations

Discussion, Concerns, Vignettes, Dilemmas

Audience Participation

Self-Care as Positive Ethics:

Competence

Part 3

Reaching for Excellence

• We all want to provide high quality of care.

• We use our brains (cognition) and our bodies (compassion/emotions) as part of treatment.

• As an “instrument” of psychotherapy, we have to ensure we are physically, emotionally, and mentally healthy to provide high quality of care.

• Self care relates to competence

Warning Signs• All the good signs and symptoms of depression,

anxiety, or stress-related illnesses

• Thinking about work, responsibilities, & patients

• Burnout, Compassion Fatigue, & Vicarious Trauma

• Withdrawal, isolation, and deception

We all know what to do, but

• Patients can easily pick up when MHPs are not paying attention, distant, irritable, impatient, detached, or preoccupied (in other words, they can see the flames of burn out)

• MHPs are notorious for not seeking help for their difficulties. MHPs do not make the connection between burnout and impairment.

• Males are less likely to engage in career-sustaining help than females.

Resilience and Work• Resilience is the process of adapting well in the face of

adversity, trauma, tragedy, threats or significant sources of stress

• Resilience takes a plan. It is not a trait.

• MHP resilience correlates to positive outcomes in psychotherapy.

• Need to connect emotionally with patients and be present with them

Building Resilience• Developing expertise

• Ongoing CE options

• Self-Reflection

• Meditation/Mindfulness

• Exercise

• Developing social connections

• Developing peer consultation support

• Psychotherapy

• Supervision

What are your solutions?

• What do you to improve resilience?

• Is it helpful to lay out your plan? Or write it down?

• How do you remain compliant with your plan?

• What checks or balances do you have in place?

• How much latitude do you have in your work setting?

Discussion, Concerns, Vignettes, Dilemmas

Audience Participation

Evaluations, Questions or Concerns

Thank you for your participation and attendance

john.gavazzi@gmail.comwww.ethicalpsychology.com