Dealing with trouble!

Professionals have a responsibility to keep themselves informed on current professional standards, ethics and legal issues governing their practice area. Waiting until you encounter a problem will be too late. Your professional liability insurance is extremely important as you cannot buy retroactive coverage and defending yourself can be very expensive. Upon entering practice you should do all of the following:

• Join your professional association. Your professional association may have legal consultants to assist you if problems arise.
• Keep yourself current on changes in laws governing confidentiality, mandated reporting and client boundaries.
• Purchase the highest level of insurance coverage available through your profession’s liability carrier. Even though you may be covered by your employer’s malpractice insurance, if you ever face a complaint you’ll need an attorney to defend your interests.

If you are a professional who has received a complaint, think you might, struggle with  professional ethical issues, have or fear you might violate boundaries, or if you are already facing charges and need an assessment, our Consultation and Training services are available to you for a negotiated fee.

We strongly urge you to be proactive in getting the help you need before there are serious consequences that jeopardize your clients and your practice.

Some of the common ethical violations we deal with include:

•  Sexual relationship with client or vulnerable person
•  Boundaries crossing and over-involvement
• Confidentiality violations

Contact Gary Schoener, Director, Consultation and Training

Problems come in many sizes. Some can be handled informally, some require mediation and others call for expert assistance.

1. Informal complaint or grievance

Do your best to respond immediately to letters of complaint or grievances presented by clients. Remember the customer is always right. If a client is dissatisfied and wants his or her money back, think carefully before you say no. A formal complaint can be costly, time consuming and emotionally grueling.

2. Formal complaint to administration
If you work for a clinic, hospital, agency or other institution, the agency itself may receive a complaint.

• Be certain the pertinent records are available and securely stored so no relevant information will be unavailable.
• Examine them to make sure they are complete.
• If there are gaps, you can always create additional records with more detail as long as you date them correctly and indicate why they were created.

3. Call from an investigator representing a board or the Attorney General’s office

• Do not discuss a client’s case unless you have a signed release of information allowing you to do so.
• If you find yourself feeling defensive in response to the investigator’s questions, make reference to your feelings so that the official record will contain an explanation.

4. Subpoena or subpoena duces tecum

• Determine whether their request is a legitimate one. That is, does it meet the test of a reasonable request by the Board to assist its investigation?
• If data requested was collected in connection with a substance abuse evaluation or treatment program, it is protected by federal confidentiality regulations and cannot be released without a court order.
• To determine whether to release information concerning a client’s records ask yourself:
  • Does the client consent? If so, you can safely release the information.
  • Does the client refuse to consent? If so, he or she has the right to have an attorney move to quash or withdraw the subpoena in this situation.
  • Is the nature of the request such that you can offer to list the contents of the files with identifying data edited or redacted?

When we believe we’ve handled a case poorly or when the outcome has been unfortunate, we often want to be proactive and to make a report to the board. However, it's important to seek consultation, both legal and professional, before embarking on a response to a letter of complaint.

• When consulting colleagues, remember they may be under an obligation to report the conversation if they are licensed. In Minnesota many licensed professionals are obligated to report professional misconduct discussed in therapy.
• If you consult an attorney, be clear you are obtaining legal consultation so that all the information is covered by attorney-client privilege.

Most mental health professionals are unfamiliar with the legal arena and find it frightening. Educate yourself and be prepared to work with your attorney.

• Don’t hesitate to ask your attorney questions about the law, the rules of the court, the setting and the proceedings themselves.
• Ask your attorney how and whether you’ll be able to communicate during the proceedings.
• Consider visiting the hearing room or courtroom beforehand to familiarize yourself with the seating arrangements and setting.
• Talk to other people who’ve been through the same process.
• Do your homework.
• Be sure you are knowledgeable about the issues. Assist your attorney by doing research.
• Help locate a qualified expert witness.
• Doing your own research will:
  • Help you handle anxiety and feelings of helplessness that are endemic to the situation
  • Reduce legal costs
  • Provide a better defense
• Reread the licensure law, the rules of the board and your profession’s code of ethics. Get a copy of the standard texts in the field. For example the American Psychological Association has a series of texts on the law and mental health for many states. Check the APA’s website http://www.apa.org/  Kenneth Pope has a website with materials about professional standards and regulation. It may be found at www.kspope.com.