This Page Includes: The Empty Chair: Making Our Absence Less Traumatic for Everyone (off-site practical article about preparing for our sudden absence from our practice) WA State Healthcare Privacy: Sinking to the Level of HIPAA  (May 2005) Dual Relationships In a Small Community What Is an Informed Consent and How Do I Get One? The Dilemma of Dual Relationships Gifts From Clients The Fee In Therapy: If You've Got the Money, Honey; I've Got the Time! Clinical Record Keeping: Damned If You Do; Damned If You Don't! Ethical Concerns Under Managed Care Practices   WA State Healthcare Privacy: Sinking to the Level of HIPAA by Judy C. Roberts, MA, LMHC Our current legislature recently passed a bill (5158) that brings the level of client privacy and control over one’s own healthcare information down to the level of HIPAA. The petition for this change was made by the State Hospital Association, but its enactment will affect all healthcare, including mental health treatment and our clients’ (formerly more private) information. THE OLD... In WA State, the Uniform Healthcare Information Act (UHCIA - RCW 70.02) governs the disclosure of healthcare information. In the past, healthcare providers (including therapists, counselors and analysts), were not allowed to disclose information about a patient/client unless there was a statutory exception or a written authorization signed by the patient/client. There were some exceptions in this law that allowed disclosures relating to providing health care; quality improvement, legal, actuarial, and administrative services; research; directory information; public health and law enforcement activities as required by law; and judicial proceedings. Also, the UHCIA stipulated that all health care providers must “chart” all disclosures of healthcare information, except for disclosures to third-party payors. This charting requirement meant that a written record of all client information disclosures became a part of the patient/client’s individual health care information, which made it accessible to the patient/client at their request. The UHCIA also required that a health care provider must honor a request of the client/patient (essentially a signed authorization for release of information), and stipulated what elements were legally required in such a written request. A legally compliant authorization was considered valid until the stated expiration date, or if there was no date specified, the authorization automatically expired in ninety (90) days. Also authorizations to disclose health care information for future health care could only apply to services that were provided within 90 days of the client’s signing the authorization. (An expired authorization could be re-signed and renewed for another 90 days, but this stipulation made it clear that the client intended to extend the authorization.) THE NEW: 1. With enactment of this new State bill (5158), three new definitions are added to the UHCIA that closely replicate HIPAA definitions: “Health care operations” - Activities of a health care provider, health care facility, or third-party payor related to their business, including conducting quality improvement; reviewing the competence and qualifications of health care providers; underwriting and premium-rating; conducting or arranging for medical review, legal, and auditing services; conducting business planning and development; and carrying out business management and administration functions.” “Payment” - Activities of (1) a third-party payor to obtain premiums or provide coverage and benefits, or (2) a health care provider or facility or third-party payor to obtain or provide reimbursement for health care services. “Treatment” - The provision, coordination, or management of health care services by health care providers or facilities, including coordination of health care with a third party and consultation with or referral to another health care provider or facility. 2. The old requirement for clinicians (all treatment providers) to “chart” disclosures of health care information and to make that charting a part of the client’s official treatment record is removed under the newly modified law. It is replaced with the lesser requirement that a health care provider (or facility), provide an accounting of disclosures of an individual’s healthcare information for only the six years prior to the date the patient asks for such an accounting. And more importantly, the changes to the UHCIA law also include a list of exceptions— that is, disclosures that are NOT required to be included in that accounting: • Disclosures made for treatment, payment, and operations of the health care provider; • Disclosures made to the client/patient at his/her request; • Disclosures and use of client information permitted or required by law; • Disclosures made in response to an authorization signed by the client; • Disclosures of client information for directory purposes (like in a hospital); • Disclosures made to people involved in the patient’s care; • Disclosures made for national security or intelligence purposes; • Disclosures made to correctional institutions or law enforcement officials; • Disclosures made that do not include patient/client identifiers. 3. The 90 day limitation on the duration of authorizations for release of information that do not contain a specific expiration date has been removed. The prohibition on releasing information regarding future health care treatment more than 90 days after the client signed the authorization is also removed. In its place the newly revised UHCIA now requires that a valid authorization must contain an expiration date or an event that triggers the expiration. 4. Health care providers or facilities, and/or third party payors may disclose a client/patient’s health care information without a specific authorization for purposes of its own operations or the operations of another health care provider or facility, or to a third party payor (without the patient/client’s authorization) if the other entity (to whom the info is released) had a relationship with the client/patient. 5. Health care providers, facilities, and/or third party payors may disclose a client/patient’s health care information without an authorization, to law enforcement authorities if the provider, facility, and/or third party payor believes in good faith that the health care information constitutes evidence of criminal conduct. 6. Health care providers or facilities may disclose a client/patient’s health care information without an authorization if it is for the purpose of payment. In addition to grieving this significant loss of client/patient privacy made legal by these changes in WA State law, I also was quite affected to see that none of our mental health professional associations testified against passage of this bill. In fact, there was no testimony from anyone against its passage. We sit silently and passively by while our skimpy privacy rights are brushed away.       Dual Relationships In a Small Community by Judy C. Roberts, MA, LMHC Introduction: Generally speaking, our professional ethics codes describe the potential problems inherent in dual relationships as: • The potential for a conflict of interest that compromises the benefit to the client; • The inherent power differential that exists between parties; • The distortion of the professional role in the therapeutic relationship due the existence of a secondary role relationship. Professional ethics codes clarify that it is the responsibility of the clinician to prevent harm to one’s client resulting from the distortion of the clinical relationship due to the existence of a secondary relationship. Therefore, it becomes the responsibility of the clinician to continually assess the distortion inherent in a multiple role relationship and its impact on the client and the boundaries with that client.   Ethics codes caution the clinician to: • Use care to prevent the intrusion of the clinician’s personal needs into the clinical relationship; • Maintain awareness that the nature of a therapeutic relationship may unrealistically intensify the client’s feelings toward the clinician— thus requiring maximum professional objectivity on the part of the clinician; • Avoid a professional treatment relationship with a client toward whom your professional judgment will be compromised by prior or other client contact or information. Examples might include: a member of one’s own family, close friends, associates, employees, or others; • Avoid when possible, and do not initiate, personal relationships with current or former clients whose feelings toward the person of the clinician may still be derived from or influenced by the former professional relationship. All of the above recommendations are affected by the clinician’s ability to assess the dynamics of a multiple role relationship, including its complications, resultant inhibitions, and/or potential damage to the therapeutic relationship and the therapy process.   Uniqueness of Small Communities Schank & Skovholt** point out that in small communities, some community involvement on the part of an individual who happens to work as a clinician, lessens suspicion and increases their approachability. The implication is that generating the trust necessary for a member of a small community to approach a clinician for professional services may actually require the involvement of the clinician in the community as a private citizen. While it may make sense for a clinician in an urban practice to refuse to take on a new client when the clinician has a preexisting relationship with that person, such a policy in a rural or small community practice may well mean a clinician will have no clients, nor will there be totally anonymous assistance available for individuals desiring mental health services. Due to the complexity of small communities (including rural and closed communities), we cannot impose the ethical standards of urban practice on small or rural communities and their clinicians. In fact, the APA Ethics code acknowledges this by stating, "...it may not be feasible or reasonable for psychologists to avoid social or other nonprofessional contact with persons such as patients." Schank & Skovholt observe that in small communities, clinicians frequently know their clients in a variety of ways and routinely have more out-of-session contact with their clients. They hypothesize that such contact is probably not the cause of harm in dual relationships, but rather whether the client and clinician stay in their appropriate roles in relationship to each other in those various settings. Thus, the authors suggest that successful handling of out-of-session contact is more likely achieved by controlling the kind of contact rather than the amount of outside contact. These authors as well as other professional resources suggest that risk may be minimized by observing the following: • The clinician should have an understanding of the decision-making rationales regarding risk of harm in dual relationships which are reflected in our professional codes of ethics. • The clinician should be able to identify a specific rationale for accepting the increased risk of participation in a multiple role relationship. • The clinician should clarify with the client at the beginning of treatment (and as appropriate throughout treatment), the nature of their multiple roles and what expectations and boundaries must exist for these roles. • The clinician should document their rationale for accepting the increased risk of the multiple relationship, and the initial clarification discussion of roles and role expectations and boundaries in the form of an informed consent to treat contract. • The clinician should maintain stated time-limits for all sessions. • In conversations with the client, the clinician should keep alive the topic of the multiple role relationship and its impact. • The clinician should make maximum effort to protect confidentiality and explain its limits to the client. This discussion should likely be tailored to the specific nature of the multiple relationships. • Documentation of treatment progress should include acknowledgment of any overlapping relationships in such a way as to minimize misunderstandings between client and clinician. • The clinician should seek ongoing consultation & appropriate discussion of multiple role relationship cases as a way to gain an additional perspective and to decrease personal isolation. • The clinician should strive toward self-knowledge, and having a life outside of work that lessens the chances of the clinician knowingly or unknowingly using clients for social gratification. *The term "small community" is intended to convey both rural communities, and closed communities that are characterized by its members holding something in common, i.e., the deaf community in an urban city. ** Implications drawn from Janet Schank & Thomas Skovholt’s article, "Dual-Relationship Dilemmas of rural and Small-Community Psychologists," published in Professional Psychology: Research and Practice, February 1997, by the American Psychological Association.     What Is an Informed Consent and How Do I Get One? by Judy C. Roberts, MA, LMHC Both Washington State law and the ethical codes of a variety of professional organizations instruct mental health care providers to obtain an informed consent for treatment from each of their clients when therapy begins. The informed consent doctrine is a legal concept that began in the field of medicine and expanded more recently to mental health care. In its most basic form, it is a requirement that all patients be made aware of the nature and risks of a medical procedure by a physician. Without such informed consent, a procedure may be viewed by the court as having been unauthorized and could become the basis for a charge of negligence. The process of securing an informed consent for treatment raises questions among mental health professionals (i.e., How much information is enough? Will it damage the potential treatment outcome? How can someone understand the process of therapy until they've been through it? etc.), and objections by some clinicians who view their treatment as requiring more spontaneity than securing a complete informed consent allows.. Regardless of what misgivings we might have, it would likely be the first line of legal inquiry in the event of charges of negligence or malpractice, or any legal proceeding. From the legal perspective, informed consent contains three elements: 1) capacity, which has to do with the client's ability to make rational decisions; 2) comprehension, which means that the clinician must convey adequate information clearly and assess that the client has understood it sufficiently to make a reasonable decision regarding treatment; and 3) voluntariness, which means the client must agree to treatment voluntarily. The more commonly cited informed consent issues that should be discussed with clients at the outset of therapy include: a general description of the therapeutic process and techniques you might use, your qualifications to treat this client's particular issues, treatment goals, the risks and possible side-effects of therapy (including the possibilities of worsening symptoms and disruptive life changes), duration of treatment, expense (both emotional and financial), the availability of alternative methods of treatment, an estimate of successful outcomes (including the option of no treatment) , the limitations of confidentiality, record-keeping and your client's right to examine their record, confidentiality issues associated with third-party reimbursement (including diagnosis information), the services provided by you as a therapist (including your availability outside of session times), and the expectations you have of the client. To some of us, this seems an overwhelming list of issues to attempt to discuss with a client in the initial session(s), particularly when our clients are most interested in getting on with talking about their presenting concerns. Many therapists have adopted the use of an informed consent statement or contract that addresses in a general way most of the issues listed above. Issues specific to a particular client can be discussed more directly. The disadvantage of this approach is the lack of opportunity to assess the client's understanding of the information. Written promises can be treated as evidence of contractual liability, so prepare your statement cautiously. Sample statements are sometimes included in professional materials such as L.H. Haas and J.L. Malouf's Keeping Up the Good Work: A Practitioner's Guide to Mental Health Ethics, (1989), Professional Resource Exchange, Inc., Sarasota, FL. You might consider viewing informed consent as an ongoing process with each client, particularly in the beginning phase of treatment. It would be wise to document informed consent discussions. Working with minors, families, and seriously disturbed clients presents more complexity in obtaining informed consent and should be researched carefully. The process of obtaining an informed consent for treatment can also be an exercise more positive and therapeutic than just protecting oneself legally. When a client begins therapy they are frequently vulnerable and feeling desperate. They may accept without question whatever a therapist suggests. For many clients the therapy process is a new experience. They often do not realize they have rights, they are unclear about what is expected of them, and what they should expect of a therapist. It is our responsibility, and an opportunity as their therapist to teach them about their rights, and to protect those rights. When we respectfully approach them to discuss informed consent issues, we have an opportunity to encourage them to develop a healthy sense of autonomy and personal power.   The Dilemma of Dual Relationships by Judy Roberts, M.A., LMHC A dual relationship occurs when a professional assumes two roles simultaneously or sequentially with a person seeking help. We tend to think of the more obvious forms of dual relationships first, i.e., bartering with a client for goods or services, counseling a friend or acquaintance, serving in a counselor/educator role, dating a former client, etc. But would you accept a referral of a friend from a personal friend? Would you agree to see the checker at your grocery store when her marriage suddenly falls apart? Do you slide your fee for a client who is having financial problems? Are you also your client's partner's therapist? Have you attended a wedding, art showing, or a performance of one of your clients? Do you sometimes see a former client at your own 12 step meeting? These are all examples of dual relationships. They can sometimes be difficult to recognize and can evolve in subtle ways, such as the time a client who was employed by a software company, offered to purchase from his employer (at a significant discount) and resell to the therapist, a normally pricey software program. Nearly every ethics code for all the mental health disciplines addresses the issue of dual relationships and they all are fairly consistent with the following section of the new ACA ethics code: A.6. DUAL RELATIONSHIPS - a. Avoid When Possible. Counselors are aware of their influential positions with respect to clients, and they avoid exploiting the trust and dependency of clients. Counselors make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. (Examples of such relationships include, but are not limited to, familial, social, financial, business, or close personal relationships with clients.) When a dual relationship cannot be avoided, counselors take appropriate professional precautions such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs. The codes do not forbid dual relationships because they are sometimes unavoidable. We should be aware, however, that every time we enter into a dual relationship, or a dual relationship emerges, the possibility exists that the role blending will present an ethical dilemma involving a conflict of interest or our impaired judgment. A major difficulty is the lack of clear cut boundaries between the roles. Are you a customer when you buy your groceries from your grocery checker client, or are you his or her therapist buying groceries? Are you a disappointed/enthralled concert attendee or a parental-figure therapist who just sat through a client's solo performance? Most of the professional literature suggests that not all dual relationships are harmful and that the degree of harm falls on a continuum. I agree. The value of certain dual relationships can outweigh any negative factors. But the literature also points out that some of the professionals who have sex with their clients tend to justify their behavior by saying the relationship was intended to be beneficial or healing for the client. It's very possible that this logic serves as a strategy for justifying inappropriate behavior in more than just cases of sexual abuse of clients. The major problem with dual relationships is, of course, the exploitation of the client. Dual relationships should only be entered into when the risks of harm are small and when there are strong offsetting ethical benefits for the client. We can assess for harm by considering certain factors when contemplating entering a dual relationship. Are the role expectations incompatible? Are the responsibilities of each of the roles too divergent? Will you as the therapist experience divided loyalty? Will your own natural self-interest impair your objectivity? Will your inherent power and prestige as an individual's therapist allow you to unduly influence your client's behavior in other settings in a way that causes your client some harm? To the degree that we miss or misunderstand the harm, our clients may feel exploited, confused, hurt, betrayed, and/or angry. Clients may be ambivalent with conflicting feelings of anger and fear of the loss of the therapeutic relationship. One fact we must not ignore is that a dual relationship to some degree distorts the therapeutic relationship, and a therapeutic relationship needs to be based on a reliable set of boundaries. We have the responsibility to be continually assessing that distortion and its impact on our boundaries. We have the responsibility and legal obligation to maintain a reliable set of boundaries and to prevent harm to our clients that results from that distortion.   Gifts From Clients by Judy C. Roberts, MA, LMHC Query from a colleague:   "Occasionally a client will bring me a gift.  They're usually not anything big, but things like a picture, a pair of earrings, some little thing they've brought back from vacation, etc.  I don't really feel like it's wrong to accept these kinds of gifts and I would not want to hurt a client's feelings by refusing a gift, but I always have a little question in my head about whether it's really OK to be accepting them." The ethical codes of mental health disciplines do not specifically address the question about gifts other than their cautions about not doing anything to exploit clients. These cautions about exploitation are grounded in the ethical principle of fidelity which means that in therapeutic relationships we put the needs of our clients first. The literature suggests that mental health treatment providers have a range of responses to gift-giving by clients. Some always refuse gifts as a matter of principle. Most clinicians accept small gifts and believe that to refuse would be a rejection of the client's expression of appreciation or an outright insult and counter-therapeutic. The question might be then, "When is a gift small?" It would also seem wise to consider whether the giving of the gift is a therapeutic issue or some potential manipulation. These questions address murky issues and the answers are not always easy to discover. The gift may be a sincere expression of appreciation, may be given as a veiled or unconscious invitation for a more social relationship, or perhaps a request to allow the client more latitude in their acting out behaviors. In some cases, when the client wants something from the therapist like a positive evaluation, the gift might be a bribe. What are we to do? The mental health ethics literature suggests asking ourselves some evaluative questions about each gift giving. What are the apparent motives? Is it an acting out of something that is going on in the relationship? How does receiving the gift affect how you feel about the client? Will the gift have an impact on treatment? What is the value of the gift? (Be certain to consider the dollar value in relation to the client's income.) Is there a context for the timing such as a holiday, the end of treatment, or does the timing appear random? It would be wise to invite the client at some point to tell you about the gift, how they decided to give it to you, etc. If you feel uncomfortable accepting a gift either because of its value or it seems inappropriate for clinical reasons you should give some thought (preferably ahead of time) to how you might decline acceptance. It would be helpful to express a positive, caring feeling to the client along with your refusal (i.e., "It makes me feel very good that you have such a positive reaction to our work together, but I can't accept this."). Take responsibility for not being able to accept the gift rather than implying that the client made a mistake in offering it. Be sensitive in how you process the gift giving. You might initially accept it and then later bring it up in the context of a discussion about a clinical theme such as the client's pattern of "buying" acceptance or their using gifts or their money to smooth their way in relationships. If a client arrives at a session with an expensive gift that cannot be returned, you might invite the client to consider donating it to an organization or individual in a way that would allow the client to express his or her gratitude without the therapist benefiting so directly. And finally, attempt to be relaxed about it. Your discomfort in such a situation will likely result in the client feeling uncomfortable.   The Fee In Therapy: If You've Got the Money, Honey; I've Got the Time! by Judy C. Roberts, MA, LMHC Some thinker has suggested that money is the most emotionally meaningful object in contemporary life, with food and sex running close behind. Like food and sex, money is powerful as an emotional metaphor, and it also serves a very practical function in our lives. We might discuss our sex lives with our friends, but how many of us have divulged how much money we made last year? Most of us don't discuss such things except with our partners and our accountant--and occasionally an IRS agent. Money truly does appear to be "The Last Taboo". Our culture contains complex conflicts about money. Money is held in high esteem, and yet is also condemned. We tend to treat someone with lots of money as if they are somehow superior to others, yet we also consider it in poor taste to display an open desire for money. Our historical Puritan ethic places a positive emphasis on thrift, hard work, and triumph over adversity, and at the same time also forbids the enjoyment of the money accumulated by thrift and hard work. Both having money and not having money often produce feelings of guilt. While we typically devote a considerable amount of time to thinking about money, we as a culture have also found numerous ways to keep our distance from money. We write checks, use credit and debit cards, sign up for automatic withdrawals from bank accounts, arrange for electronic transfer of funds, etc. One might think that such an object (money), loaded as it is with so many conflicted feelings would be used to provide a wealth of clinical material about each of our clients. Yet we typically ask very few questions about the finances of most our clients. It would probably be safe to say that most of us become quite anxious when we must discuss the topics of money and payment issues with clients, or even with each other. We each have an emotional past with money. We had a lot. We had too little. Our parents were secretive or penny-pinching. Mother lived through the depression and still hoards canned food. Dad is over-generous, embarrassing us at holidays. Our best friend was envious of our boat and weeks of summer at the lake. The girls in the grade above made fun of our clothes bought at Sears. A holiday in Europe meant we were "stuck up". Grandma tried to buy our attention away from mother with expensive gifts and we let her. Grandpa still doesn't trust banks. An ivy league college education on scholarship left us living in the dorm and cleaning floors in the student union building in front of our peers. These experiences determine our attitudes, beliefs and values about what money will and will not do, what it means and is for, what it will really buy and from what it will isolate us, what it means about us and our worth, etc. I have noticed a pattern among therapists to occasionally brave a confessional discussion about our habits with what we refer to as the "therapeutic frame". Usually such a discussion occurs among friends who are also colleagues or in an on-going consultation group. We talk about stopping and starting late or on time, outside-the-session contact with clients, a fixed fee vs. a sliding scale, payment at the time of the session or allowing a client to run a balance, billing practices, whether to really charge for a missed session, charging for telephone time, report-writing, etc. Most of us are looking for an idea of either what is customary, so we can adopt the practice, or a new twist on a policy that for some reason seems more doable to us, given our own comfort level. What we often neglect is a carefully considered approach to fees and fee-setting that is not only congruent with our theoretical orientation of practice, but an integral part of the therapeutic process. We seem to want to treat money and fees as an administrative issue--totally separate from the therapy itself. We might literally move out of our therapy chair to accept payment or as a way to unconsciously signal the client to drop the cash or check on our desk rather than hand it directly to us. We may long for the days at the agency where the secretary was the one dealing with the money. Most of us are uncomfortable with the idea of discussing money and yet we devote most of our waking hours to an activity that allows us to accumulate it--or at least hold it for a few days. Our feelings of entitlement cause us discomfort and we find other excuses to justify our being paid. We tell ourselves and each other that the client will only value his or her treatment if it costs them something. We suggest that without a significant fee a client is more apt to stay in treatment longer than necessary. We talk about the fee being necessary to counteract the feelings of guilt in the client which come from his or her anger at the therapist. What we seem to have more trouble talking about is that we are entitled to payment since we provide an invaluable though intangible service to our clients. Through some process we tend to settle on a set of payment guidelines. I recently attended a workshop entitled, "A Therapeutic Approach to the Financial Relationship". It was conducted by two presenters, one a clinician and the other a non-clinician bookkeeper-type individual who runs a billing service for therapists. The therapist talked briefly in the beginning about what Freud had to say about charging a fee, about what little research has been done addressing issues about the fee, and listed some of the factors affecting our attitudes towards money. Most of the presentation was taken up by the billing person, and it was clear from watching the audience that this was the part of the workshop during which they were the most intent on taking notes. The presenter shared her most successful and most advised tips for collecting the fee. She actually gave us specific words to say to our clients, (i.e., "How are you paying today?" "Do you have insurance that you need assistance with?"). The audience wanted optimal concrete guidelines--and I certainly wrote them down! There seemed to be little consideration of promoting a clinically productive exploration of the client's feelings about money or payment of the fee. There was also no talk about how our own discomfort with money might affect the therapy process. We settle on a set of payment guidelines. We even write them into our disclosure statement as required now by State law. And then we hope our clients will have the "decency" to spontaneously adhere to them so no discussion nor disagreement need actually occur. If you recognize these feelings (and you'll notice I knew exactly how to describe them) it suggests the possibility we are protecting ourselves from our own difficulties concerning money and our own conflicts about entitlement and the meaning of money. What would it be like to have a more conscious approach to charging a fee in exchange for the therapeutic hour? How do you define what the payment is for? Is the fee a payment for services rendered? If so, how do you explain charging for a missed session when no actual service is rendered? Are our clients leasing our time? Or, are they paying for a relationship with us? When we fail to examine money issues, including our fee, with any individual client, we are missing a potentially significant opportunity to focus on such conflicts as dependency and self reliance, giving and receiving, responsibility and infantilization, exploitation and altruism, pride and guilt. When the feelings of both the client and the therapist in relation to the role of money within the therapeutic relationship are ignored, it often creates an unspoken conspiracy to avoid some painful issue, either real or imagined. Such a conspiracy is certainly not in the client's best interest. Dr. G.A. Williston DiBella suggests three stages for clinicians toward addressing the issue of money and therapy. The first stage is a willingness to contemplate money issues. The second stage is to be aware of the phases of treatment in which money complications are most problematic and the most visible. These would include the times we state a standard fee, lower our fee, raise our fee, slide our fee-scale, collect our fee, deal with late payments, etc. The third stage is to develop better procedures and attitudes about money being a part of the therapeutic relationship. This stage is going to be up to you.     Clinical Record Keeping: Damned If You Do; Damned If You Don't! by Judy C. Roberts, MA, LMHC Case One: A troubled woman requests therapy from you and remains as your client for two years. She is a difficult client to work with and you experience her as pushing on your boundaries on numerous occasions. During her treatment you learn that she has had several previous therapy experiences with other therapists. A year or so after she ends treatment with you, a letter arrives from her requesting a copy of her record. She explains that she is intending to write a book about her therapy experiences and wants access to all her mental health records. Case Two: A young man has been raised by his aunt and uncle since his parents died when he was just one year old. He began experiencing a reactive depression and was referred to you when on his sixteenth birthday his uncle died from a heart attack. After nine months of successful therapy he was doing well and eventually applied to and was accepted by a college away from home. He was gone for several years, but when his aunt died, he came back to see you for several sessions. He expressed interest in reviewing his record of his prior treatment with you. You recall that when you did his initial intake and met privately with his aunt and uncle they disclosed to you that his father shot and killed his mother and then committed suicide. The young man was never told, but it is in his record as part of his developmental history. The above cases exemplify the kinds of circumstances that can alternately cause clinicians to experience anxiety about their own professional safety and anguish about the potential for client harm or distress as a result of the clinician's practice of keeping clinical records. Rumors and professional surveys suggest that there is a wide range of record-keeping practices among clinicians. Some, through neglect or conscious choice do not keep any clinical records, while other clinicians carefully document nearly every word their clients say. Some clinicians suggest that the only certain way of protecting client records from subpoena is to not keep any records. Others are concerned that without adequate documentation they as the clinician might become the victim of a successful false memory lawsuit or a charge of malpractice. It is true that without any records or notes there is nothing to be released to either the client or the courts. But this solution also means there is nothing to document your delivery of competent treatment or to remind you of important issues brought up in sessions, emergent themes, etc. Clinical standards of practice suggest that appropriate record keeping is necessary to support adequate treatment. We might wish that our client records would only have to include notations about session content, notes to ourselves about our hunches, reminders of what our consultant suggested we explore with the client, etc. But cultural trends have resulted in clinical records having multiple functions and audiences. Of course they still retain the ostensible function of being a clinical tool. They should be used to remind us of significant issues and perceptions, and serve as adequate documentation of the client's therapy process. In the event that another clinician must assume the responsibility for the mental health care of our client, the record should contain sufficient information to support that transition of care. The second function of our clients' records is to serve as legal documents. This becomes the case in the event of a malpractice action, or regulatory complaint against a therapist; legal actions involving the client such as a lawsuit or divorce proceeding; and in child custody cases. The final function of the client's clinical record is to substantiate claims made to third party payers. In this instance the record must at a minimum document the amount, nature, and duration of services. With the advent of managed care the intrusion into the client's clinical record has become quite serious, with some managed care companies actually claiming ownership of the record. In recent years a legal trend has emerged that allows our clients the right to examine and obtain copies of their clinical records. Such is the case in Washington State. Typically it is assumed that ownership of the record belongs to the individual, institution or agency that constructed it-- despite what some managed care companies are attempting to assert. But clients do have the right to review and make changes to their records. This legal right has prompted clinicians to write their clinical notes with the consideration that their clients may read them someday. This eventuality, hopefully, has had an affect on what we all write in our clients' charts. But what can you do about your impulse to jot down your clinical suppositions and reminders? Apparently a somewhat common practice is to keep what has been referred to as "dual records," "shadow notes," "working notes," or "a personal journal." The idea is that while the official client record might be subpoenaed or copied for a client at their request, a second set of notes would not be considered a part of the official record and therefore not discoverable. I am not certain that former Senator Bob Packwood would support this practice anymore. It didn't seem to work for him. The problem is that if a criminal lawsuit occurs and you receive a subpoena duces tecum (which translates: show up in court and bring any and all files, documents, reports, papers, and notes regarding the case in question), to keep such personal notes out of court would require you to lie under oath. Although there may be a way to use such a "dual records" system that would involve routine review, integration and destruction of the second set of notes, this practice is considered controversial. What should a clinical record include? The usual suggestions are: identifying client data, dates and types of service, fees and payment records, assessment information, a treatment plan, notes on consultations, a treatment summary, copies of signed releases, and a copy of the signed disclosure statement. It is the other component, the treatment notes, that include the most variation. Some of that variation is a natural result of the types of treatment clinicians provide. Records for cognitive-behavioral therapy would likely look quite different than the process notes of an object relations psychotherapist. The treatment record ought to include accurate, current, and pertinent documentation of the therapy sufficient to support competent treatment and to permit planning for continuity of care. In addition to the above minimal required information, clinicians are increasingly prompted (often by their liability insurance companies) to document their treatment in a defensive manner. This might include an explanation of significant client/therapist treatment decisions with attention paid to what the choice is expected to accomplish, why the therapist believes it will be effective, any risks involved and why they are justified, and alternative treatments that were considered and why they were rejected. Clinicians are encouraged to write from the perspective of future readers (not a happy thought). If you are treating a suicidal client you might seriously consider documenting your assessment of suicidal risk, the options considered for suicide prevention, and possible treatments. Details of emergencies should be documented as they are frequently the triggers for malpractice lawsuits. One might document the cooperation or resistance to the client's treatment acted out by the client's significant others. If something goes wrong you then have some support that treatment compliance was handicapped by someone other than you. If you determine to take a calculated risk with a client, allow yourself to think out loud in the record. While this might ultimately reveal in court an error in judgment, it would be preferable to a judgment of negligence. When writing, focus on facts. Do not include hunches or value judgments. Delete emotional statements and personal opinions. Use precise language. Use only adjectives that are defined, necessary and clinically appropriate. When possible replace an adjective with a verb that describes the client's behavior (i.e., "Johnny is cruel" - bad idea; "Johnny hits his sister with a stick" - much safer!). You should have a solid reason for including data that describes illegal behaviors, sexual practices, or other sensitive information about the client that may embarrass or harm him or her should the record by disclosed. Most clinicians have received instruction regarding standard release of information forms and how to introduce these forms to clients. Perhaps what we have not thought about is the blanket disclosure form our clients routinely and maybe unknowingly sign when they request third party reimbursement for their therapy. Such blanket forms technically allow the insurance or managed care company to ask for any and all client information. A fully informed consent prior to treatment suggests that we need to be telling/cautioning our clients about the extent of the access to their private information they gave away to their insurance company, possibly the Medical Information Bureau, and in some cases their employers when they signed that blanket disclosure form. (Or is it a form of extortion when the client cannot get the benefits they or their employer has already purchased unless they are willing to disclose very personal data?). As our practice matures, the accumulation of records often threatens to take over our "lockable" space and we begin to wonder just how long we have to keep client records. While the responses to this question vary somewhat, the recommendations made by the American Psychological Association appear to be emerging as a clear and precise standard: "(a) that the full record be retained intact for 3 years after the completion of planned services or after the date of last contact with the user, whichever is later; (b) that a full record or summary of the record be maintained for an additional 12 years; and (c) that the record may be disposed of no sooner than 15 years after the completion of planned services or after the date of last contact, whichever is later." It is our responsibility as therapists to make plans for our clients' records in anticipation of our death, incapacitation, or the closing of our practices, whichever comes first. We need to make provisions for the retention or transference of our records and to arrange for continuity of services to our clients. We ought to have a written set of instructions in either our wills or our practice records that specifies the disposition of the records we have created and maintained. Ideally, these instructions would authorize a designated mental health clinician to assume control of our records and be available to former clients to either review the records and make recommendations or arrange for their transfer to a health care provider of the client's choice. In the event that a therapist does not make such arrangements, another therapist acting under the auspices of a local professional standards committee, ought to assume management of the records.       Ethical Concerns Under Managed Care Practices by Judy C. Roberts, MA, LMHC Managed care is an economic strategy alleging to provide care of equal or better quality for less money. There are no ethics codes that guide managed care companies and no regulatory agencies providing oversight. Questions for Our Attention: • Is the client aware that sensitive data and extensive information is being given to managed care reviewers or being studied and copied by insurance company auditors? In such a case, is the documentation we compile on a client benefitting them or potentially harming them? • To whom might the managed care company make secondary disclosures? Employer?   Data Bank?   Personnel Office?   Supervisor? • What are the security procedures in place to protect sensitive client data? • Given ethical prohibitions against abandoning clients, what is done about clients who are not ready for termination but further treatment is not authorized? What is our ethical obligation? WA State law now says we can contract privately with the client, which would mean them paying out of pocket, but what if the client cannot pay or cannot pay our usual fee? Is the client really given a fully informed consent about what they are buying when they purchase or try to use their mental health care benefit? • Client’s best interest is sometimes sacrificed for necessity of establishing "medical necessity." To meet "medical necessity" we must assign the client a diagnosis of a mental disorder that will stay in his or her permanent medical record the rest of his/her life. • Temptation to "mold" (diagnosis up) the diagnosis to meet the criteria of medical necessity to help the client receive needed treatment. • Honesty and candor may be sacrificed to the task of convincing a case manager of the patient’s need for authorization or continuance of treatment. • Fully informed consent process short-circuited by gag clauses. • Trust hurdles introduced through: Referral by zip code;   Utilization review’s on-site investigations;   Mandatory interviews with unknown evaluators;   No guarantee of length of treatment. • Client’s best interest may succumb to protection of one’s "economic credentialing." • Client’s best interest may succumb to loyalty to HMO policy. • Capitation may become an economic incentive to reduce the level of care. • Advocacy for one’s patient may succumb to protection of one’s continued membership on a panel. • Client’s best interest sometimes sacrificed when a choice is made for less expensive care, perhaps by the use of a less experienced and/or expensive clinician. • The therapeutic alliance may be seriously compromised by the insertion of the omnipotent HMO and its gatekeepers into the relationship. • The need for confidentiality may be sacrificed for the pro-business decision to amass client information and the building of computer-linked medical data banks. • For many patients, managed care practices re-enact: Abandonment; Chaos; Unpredictability; Repeated change in care-takers. Are such reinactments really in the client’s best interest? • What to do about treatment of the chronically mentally ill for whom needed or appropriate treatment is not authorized? • Is the client at an information disadvantage regarding treatment options? • The client’s best interest may not be served when brief treatment is the only modality offered. (See Martin Seligman's article in Professional Psychology: Research and Practice, "Managed Care Policies Rely on Inadequate Science") • Is the inability to establish or maintain proof of "medical necessity" an ethical justification to deny treatment? • How do we justify the "paternalistic" dictates of the care manager over the client’s choices? • Can one practice professional autonomy when the care manager determines treatment modality, duration and intensity; and when the insurance company dictates what type of records we are to keep on our clients regardless of the format we find to be beneficial in supporting the treatment we offer. • Can one honor a client’s request to keep certain information confidential while under contract to provide information on demand to the managed care company? • Is the client’s best interest compromised when medication is recommended as a cost containment strategy? • Can switching medications to which the client has adapted and on which the client is functioning well, be justified based solely on cost? • What is our ethical duty when a client refuses medication that is recommended by the care manager? • A client’s best interest may be sacrificed when he or she is discharged prematurely from a hospital because of limited benefits for inpatient treatment. • Is it ethical to treat a patient with medication on an impatient basis until such time as the medication improves functioning to such a level that the insurance company demands discharge, knowing that as soon as the patient is discharged they will go off their medication? • What is our ethical duty when one of our clients is discharged prematurely from a hospital because of limited benefits for inpatient treatment? • How do we decide how much unpaid time to spend on an appeals process for further treatment authorization? • Should we provide information to a client during the informed consent process about our belief that they would benefit more from long-term treatment when their managed care company offers only up to eight sessions? • Would we actually be doing less harm to refuse to do brief treatment with some clients when we believe they need longer term care? • What do we do about clients who have reached their lifetime maximums for insurance benefits?