Online Course #4 Updated – Beginnings & Endings in Psychotherapy: Avoiding Some of the Ethical Pitfalls

 

Beginnings & Endings in Psychotherapy: Avoiding Some of the Ethical Pitfalls
Mary Alice Fisher, Ph.D., Clinical Psychologist, Executive Director of the Center for Ethical Practice

Not represented in that chart, the American Psychiatric Association provided an early “Resource Document on Principles of Informed Consent in Psychiatry” (APsyA, 1997), which contained numerous recommendations about types of information that might need to be provided to prospective patients (e.g., potential limits of confidentiality), as well as the appropriateness of reviewing the information throughout the relationship when changes occur, or as appropriate. However, this document has been superseded by the current Ethics Code, “Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry” (2013), which contains the following requirements:

“It is ethical to present a patient or former patient to a public gathering or to the news media only if the patient is fully informed of enduring loss of confidentiality, is competent, and consents in writing without coercion” (Ethical Principle 4-11); “make relevant information available to patients (Ethical Principle 5); “When significant relationships exist that may conflict with patients’ clinical needs, it is especially important to inform the patient or decision maker about these relationships and potential conflicts with clinical needs (Ethical Principle 8-3); “In informing a patient of treatment options, the psychiatrist should assist the patient in identifying relevant options that promote an informed treatment decision, including those that are not available from the psychiatrist or from the organization with which the psychiatrist is affiliated” (Ethical Principle 8-4).

The American Psychoanalytic Association Ethics Code contains a section entitled “Mutuality and Informed Consent.” It begins with a general Standard: “II. Mutuality and Informed Consent. The treatment relationship between the patient and the psychoanalyst is founded upon trust and informed mutual agreement or consent. At the outset of treatment, the patient should be made aware of the nature of psychoanalysis and relevant alternative therapies. The psychoanalyst should make agreements pertaining to scheduling, fees, and other rules and obligations of treatment tactfully and humanely, with adequate regard for the realistic and therapeutic aspects of the relationship. Promises made should be honored.” This is followed by seven specific ethical requirements.

Similarly, the AAMFT Code of Ethics (2015) contains a general informed consent standard:

Marriage and family therapists obtain appropriate informed consent to therapy or related procedures and use language that is reasonably understandable to clients. . . The content of informed consent may vary depending upon the client and treatment plan; however, informed consent generally necessitates that the client: (a) has the capacity to consent; (b) has been adequately informed of significant information concerning treatment processes and procedures; (c) has been adequately informed of potential risks and benefits of treatments for which generally recognized standards do not yet exist; (d) has freely and without undue influence expressed consent; and (e) has provided consent that is appropriately documented. (Standard 1.2, “Informed Consent”)

The concept of informed consent is not new. The requirement to inform patients about certain things has been present in professional ethics codes since their inception, even before the term “informed consent” was being used there. Its ethical importance has been discussed for many years in the professional literature. For example, in 1964, in discussing issues related to counseling in the schools, Peters noted the difference between “competent guidance seeking to gain informed consent versus authority misused toward uninformed coercion” (p. 3, emphasis added). In 1975, Strupp (1975) noted that “clients have a right to know what they are buying, and therapists have a responsibility to address this issue explicitly (p. 39).

In discussing the therapeutic contract more recently, Koocher and Keith-Spiegel (2016) note that “if a client and therapist expect to form a therapeutic alliance, they must share some basic goals and understandings about their work together” (p. 61). When they are not provided with adequate information and clarifications, patients are often left with harmful misunderstandings, and instead of obtaining the patient’s informed consent to receive services, the therapist may actually receive “uninformed consent” or “coerced consent.”

On the surface, informed consent is a simple process:
(1) The psychotherapist informs the prospective patient about certain things; and
(2) the informed patient then gives – or refuses to give – consent to participate in the services being offered.

As reflected below, however, the informed consent process can be more complicated than it might seem.

1. Initiating the Informed Consent Conversation with Prospective Patients

INFORMING WHEN? All professions emphasize the ethical importance of informing prospective patients about certain things very early in the relationship. For example, Fisher (2016) recommends that the confidentiality portion of the informed consent discussion take place before the prospective patient begins to share information that might later need to be disclosed without the patient’s consent. “You must give prospective clients enough information to allow them to make an informed decision about whether to confide in you in the first place” (p. 39).

Each Ethics Code imposes certain specific requirements, and the wording varies. For psychologists, the APA Ethics Code (2017) requires that the initial informed consent conversation take place “at the outset of the service” (Ethical Standard 3.07); that the discussion about the limits of confidentiality take place “at the outset of the relationship . . . and thereafter as new circumstances warrant” (Ethical Standard 4.02); and that therapy patients be informed “as early as is feasible” (Ethical Standard 10.01). For counselors, the informed consent conversation must take place before the therapy relationship begins because the ACA Ethics Code (2014) stipulates that “clients have the freedom to choose whether to enter into or remain in a counseling relationship and need adequate information about the counseling process and the counselor” (Ethical Standard A.2.a). Similarly, the NASW Ethics Code (2017) requires that social workers “provide services to clients only in the context of a professional relationship based, when appropriate, on valid informed consent (Ethical Standard 1.03).

Ethically, it is important to remember that informed consent is not a one-time thing. This is especially important as it relates to the discussion of limits of confidentiality. See discussion below, “Re-Opening the Informed Consent Conversation.”

INFORMING HOW? The initial informed consent conversation is an interactive process that involves a dialogue between the provider and the prospective client/patient: The prospective therapist provides the required information and the prospective patient is invited to respond to the information and to ask questions to clarify. The informed patient is then in a position to decide whether or not to consent to participate in psychotherapy.

Psychologists are required to “use language that is reasonably understandable” (APA Ethical Standard 3.10) and to “provide sufficient opportunity for the client to ask questions and receive answers” (APA Ethical Standard 10.01). Social workers “should use clear and understandable language” and “provide clients with an opportunity to ask questions” (NASW Ethical Standard 1.03a). Counselors must review the relevant information both in writing and verbally (ACA Ethical Standard A.2.a).

It can be helpful to provide written information, which the prospective patient can refer to during the initial conversation and then take home to review and use for raising any subsequent questions. In fact, some Ethics Codes require that information be presented to patients in writing during the informed-consent process. For example, “counselors have an obligation to review in writing and verbally with clients the rights and responsibilities of both counselors and clients” (ACA Ethical Standard A.2.a); and if bartering will be involved, this must be documented in a written contract (ACA Ethical Standard A.10.e). If they will be providing “technology-assisted services,” marriage and family therapists are required to “advise clients and supervisees in writing of these risks, and of both the therapist’s and clients’/supervisees’ responsibilities for minimizing such risks” (AAMFT Ethical Standard 6.2). As described below, there are also some legal requirements about providing information in writing or using written intake forms.

Samples of written informed consent forms are available. However, it is important to avoid “canned forms” that do not accurately describe the actual policies in your own setting. If using the published forms described here, or in borrowed forms provided by a colleague, it is essential that you review the carefully and adapt them to your own policies. The Trust (formerly the APA Insurance Trust) (2013) provides samples of informed consent forms for psychotherapy, child therapy, collateral participants, and for forensic cases. Pomerantz & Handelsman (2004) provide suggestions for written informed consent forms. Murphy & Pomerantz (2016) offer a consent process for telehealth cases. Kraft (2005) has provided an adolescent consent form to be signed by both the adolescent and parents.

Professional ethicists warn that while written materials can be important as a supplement to the informed consent process, they are not a substitute for a discussion that includes interaction with the prospective patient about the written information being provided. Written forms should not be used simply to ensure ethical or legal compliance with paperwork requirements, but also to help patients understand the process of psychotherapy and to understand the information about what the rules will be (Knapp & VandeCreek, 2012).

Too often written materials are designed around legal requirements rather than ethical requirements. Long before HIPAA, research suggested that when psychotherapists focus on legal compliance, their written materials may fall short on ethically-appropriate information: “The majority of forms contained the legally mandated information; fewer forms contained ethically desirable information. . . . Results indicate therapists are obeying the law, but do not appear to be taking advantage of the opportunity to provide their clients useful information in an accessible way” (Handelsman, Martinez, Geisenddorfer, Jordan, Wagner, Daniel, & Davis, 1995, p. 119). More recently, Pomerantz and Handelsman (2004) have provided an updated list of questions that therapists might provide to prospective patients in advance, as a way of facilitating the informed consent process.

Furthermore, written materials are not helpful unless they are written in language that the patient can understand. Research results have suggested that clinicians’ forms are sometimes at the reading level of a college senior, which is beyond the reading level of many patients (Handelsman et al., 1995).” Harris (2003) has warned that patients may now receive so much written material that even sophisticated prospective patients are unable to understand it.

Finally, with prospective patients whose first language is not English, the psychotherapist may need to use an interpreter to be sure the conversation and forms are understood. However, since this can raise confidentiality issues, the psychotherapist must be prepared to “educate interpreters on the need for confidentiality” (Knapp, Younggren, VandeCreek, Harris, & Martin., 2013, p. 205). “In order to avoid client intimidation or undue invasion of privacy” and to avoid delegating interpretation responsibility to someone for whom that role would create a dual relationship or conflict of interest, “therapists should refrain from using family members or community authority figures as interpreters whenever possible. (Fisher. 2013, p. 163).

INFORMING ABOUT WHAT? As reflected in Figure 1 and in the online version of that chart, each professional Ethics Code has a list of information that must be provided to prospective psychotherapy clients. However, psychotherapists are advised not to limit themselves to the minimum content that is required by Ethics Codes. “The exact information that should be given to the patient will depend on the patient’s needs and expectations” (Knapp, 2012, p. 84). In other words, the informed consent conversation should be tailored to the needs of each
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prospective patient, and therapists are ethically free to add any information that might be important for that particular prospective patient to know. It can help to ask oneself, “What would the average person want to know?”

Lists of what should be included among the information provided to prospective psychotherapy clients (beyond the language of the Ethics Code) indicate some degree of collective agreement as well as some points of distinction. For example, many authors recommend that the informed consent process include information about the therapy approach or orientation, specific procedures to be employed, the therapist’s qualifications, the goal or purpose of the therapy, potential benefits or risks, alternatives to the proposed treatment, administrative and pragmatic issues (such as scheduling and payment, including discussion of third-party payment, if applicable), and confidentiality policies. (Pomerantz, 2012, 317-318)

Pope & Vasquez (2016) suggest that it can be important to clarify issues such as therapist availability between sessions, emergency plans, and backup availability. Discussion of possible therapist absences (e.g., vacations, holidays, etc.) can not only provide prospective patients with important information for their own planning, but it can also require therapists to exercise good forethought about their own schedules and boundaries, in order not to begin the relationship with availability promises that may be impossible (or even clinically inappropriate) to keep. “The process of clarification encourages the therapist to consider carefully his or her own needs for time off, away from the immediate responsibilities of work. Such planning helps ensure that the therapist does not become overwhelmed by the demands of work and does not experience burnout” (Pope & Vasquez, 2016, p. 170).

Finally, Davis (2008) suggests that this initial conversation also include information about possible endings. This could include policies about what the plan will be if client finances (or third party payments) no longer cover costs of services; if the services being provided are not benefiting or may be harming the client; or if client conduct is inconsistent with the safety and integrity of the work. (See further discussion of this issue in Part II.)

2. Informing Prospective Patients about the “Limits of Confidentiality”

All mental health professions have an ethical requirement to inform prospective patients about the potential limits of confidentiality. (See Figure 1, above.) This conversation allows them to know in advance the circumstances when information about them might be disclosed to others without their consent. In addition to the Ethical Standards in Figure 1, marriage and family therapists must “review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required” (AAMFT, 2015, Ethical Standard 2.1).

Patients have a right to be informed about the conditions and potential risks before giving or renewing their consent to receive services. This means that, unless therapists intend to protect confidentiality unconditionally, they have an ethical obligation to inform prospective patients about what the “conditions” will be. This ethical obligation is reflected in every therapist’s ethical standards. (Fisher, 2013, pp. 57-58)

This can be one of the most important aspects of the informed consent process, and it is one that many therapists consider the most difficult. The list of “limits” may be long, and the therapist may not be sure in advance exactly what the potential disclosures might be. The discussion can seem disruptive of the initial process of joining with the prospective patient; and some therapists fear that if they are completely honest about the times when disclosures might be made without the patient’s consent then the prospective patient might decide not to confide. However, none of these clinical concerns can erase the ethical necessity of having a thorough conversation about the limits of confidentiality.

Confidentiality ethics requires more than just protecting confidential information. Because confidentiality will be conditional, psychologists have an initial informed consent requirement—an ethical obligation to inform prospective clients about the foreseeable conditions in advance, before obtaining their consent to receive services. In other words, it would be appropriate to begin a professional relationship without discussing the limits of confidentiality only if confidentiality had no limits. (Fisher, 2011a, 336-337)

Advance preparation is essential. Patients must be informed about the confidentiality limits that will be imposed voluntarily in the setting as well as limits that can be imposed by law. The information provided to prospective patients must be “setting-specific,” so no borrowed forms will suffice unless they have been adapted to the actual rules in the clinician’s own setting. This is true whether the setting is a private practice, a group practice, an outpatient clinic or agency, or an inpatient setting (Fisher, 2013).

Although not required in most Ethics Codes, before fulfilling the ethical responsibility to inform patients about the limits of confidentiality, it can be helpful to begin by describing the underlying rule about protection of confidentiality.

The patient has a right to be told about two things: (1) the confidentiality rule, as the therapist intends to apply it; and (2) the exceptions to the rule that the therapist reserves the right to make. For most therapists, the rule can be stated as simply as “I will disclose nothing without your consent.” The ethical rule can still be accurately captured in that familiar old sentence. But this statement must be immediately followed by a description of the “conditions” the therapist might place on that promise: “There are some important exceptions to that rule, some of them because of my voluntary policies, and some of them because of disclosures that are required by law” (Fisher, 2008, pp. 3-4). Many therapists stumble or fall short when trying to be specific about these exceptions. (Fisher, 2013, pp. 61-62)

Figure 2 can be helpful in deciding what one’s policies are (or should be) about limits of confidentiality in your own setting. Once that is clarified, it can also be used as a checklist for organizing the information for the informed-consent conversation with prospective patients, and for preparing to present it in understandable language (e.g., language that is far more understandable than a standard HIPAA form!). Important points can also be provided in writing to patients for use as an outline during the initial discussion of limits of confidentiality. Finally, once completed, this written document is also something the prospective patient can take home to read more thoroughly and bring back along with any lingering questions.

     3. Informed Consent for Use of Certain Technologies

Advances in technology are happening very rapidly, and many of the new technologies are being used in (or adapted for use in) psychotherapy. Some mental health professional ethics codes have not yet “caught up” with all of the ethical issues raised by the use of technology. However, the current Code of Ethics of the American Counseling Association (ACA, 2014) devotes an entire section to the topic of “Distance Counseling, Technology, and Social Media,” including important ethical standards relevant to informed consent for the use of technology in providing psychotherapy services. (See ACA Ethics Code Section H.) The more recent Code of Ethics from NASW (2017) does not provide a separate section, but it does intersperse new technology standards within many of the existing sections. A review of these standards would be useful for psychotherapists of any profession who employ technology when providing services.

The American Psychological Association (APA) provides a separate document containing recommendations about the use of technology: Guidelines for the Practice of Telepsychology (2013). More recently, APA published an accompanying Casebook: A Telepsychology Casebook: Using Technology Ethically and Effectively in Your Professional Practice (Campbell, Millán & Martin, 2018). In its Chapter on “Informed Consent,” this Casebook contains an “Informed Consent Self-Assessment Checklist.” This is a very useful instrument for mental health service providers of any profession.

     4. Informed Consent in Multiple-Person Therapy

Ethics codes often impose additional informed consent requirements in multiple-person therapies. For example, counselors who are providing couples and family counseling must clearly define who will be considered ‘primary client(s)’ and discuss expectations and limitations of confidentiality. “Counselors seek agreement and document in writing such agreement among all involved parties regarding the confidentiality of information. In the absence of an agreement to the contrary, the couple or family is considered to be the client” (ACA Ethical Standard B.4.b). Similarly, psychologists who provide therapy to couples or families “take reasonable steps to clarify at the outset (1) which of the individuals are clients/patients and (2) the relationship the psychologist will have with each person. This clarification includes the psychologist’s role and the probable uses of the services provided or the information obtained” (APA Ethical Standard 10.02). When social workers provide therapy “to two or more people who have a relationship with each other (for example, couples, family members), social workers should clarify with all parties which individuals will be considered clients and the nature of social workers’ professional obligations to the various individuals who are receiving services” (NASW Ethical Standards 1.06d; 1.07f,g). Marriage and family therapists (whose services frequently involve multiple-party therapy) have a requirement to “obtain appropriate informed consent” but are given few instructions about exactly what information to provide: “The content of informed consent may vary depending upon the client and treatment plan” (AAMFT Ethical Standard 1.2). However, they are required to “review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required” (Ethical Standard 2.1) and must “inform clients or supervisees of the potential risks and benefits associated with technologically-assisted services” (Ethical Standard 6.1). In multiple-party cases, the discussion of confidentiality is more complicated than with individual psychotherapy cases. For example, potential participants need to know what rules will apply if the psychotherapist receives information from one party when other parties are not present (e.g., by letter, phone call, text, or individual session). Potential psychotherapists are free to choose their rules (e.g., (1) the individual’s confidentiality will be protected; or (2) all information received from one party will be disclosed to the other participating parties; or (3) there will be a case-by-case decision about what to disclose to other parties, at the psychotherapist’s discretion; etc.) The important thing is that during the informed consent process the rules will be made clear in advance to all parties involved, so everyone knows what the rules will be when deciding whether or not to give consent to participate.

Obviously, in multi-person cases, the informed consent responsibilities can be different across persons, but each involved person should be informed about what the rules will be as applied to them. In multi-person cases, it can be misleading to rely on the question, “Who is the client?” That question produces a singular answer, but the informed-consent responsibilities apply to all parties involved in the case, not just to the primary client or patient (Fisher, 2009, 2014).

For example, psychotherapy cases often include persons who are “collateral” to the therapy but who are not themselves patients. This could include parents of child therapy patients; adult children who accompany elderly parents; etc. For the content to be covered in informed consent process with persons who are collateral to the therapy but who are not themselves patients, The Trust (a malpractice insurer) has provided a very useful “Outpatient Services Agreement for Collaterals” (2006) that explains their rights. For example, it explains that collateral participants do not have the same confidentiality rights as the patient(s).

For prospective group therapy clients, it is suggested that the psychotherapist may want to provide information “unique to that modality of therapy, such as the impossibility of guaranteeing that fellow group members will not break confidentiality, or the risk that fellow group members could be verbally or physically aggressive toward the client” (Pomerantz, 2012, p. 321). When providing group therapy, psychologists are ethically required to “describe at the outset the roles and responsibilities of all parties and the limits of confidentiality. (APA Ethical Standard 10.03). Social workers “should inform clients involved in family, couples, marital, or group counseling of the social worker’s, employer’s, and agency’s policy concerning the social worker’s disclosure of confidential information among the parties involved in the counseling” (NASW Ethical Standard 1.07(g)). Social workers also have a further ethical obligation to seek agreement among the parties involved concerning each individual’s right to confidentiality and obligation to preserve the confidentiality of information shared by others. Social workers should inform participants in family, couples, or group counseling that social workers cannot guarantee that all participants will honor such agreements” (NASW Ethical Standard 1.07 (f)). Marriage and family therapists, when contracting for group services involving technology, must make participants aware of “risks and responsibilities associated with technology-assisted services” (AAMFT Ethical Standard 6.2).

     5. Informed Consent in Other Specific Circumstances

When services are provided at third party request, there are additional items that will be included in the informed consent interview. As noted in Figure 1, item V, this includes discussion of the therapist’s relationship with all involved parties. For example, if a patient is referred by a social service agency, it is helpful to create a contract with that agency in advance, stipulating who will pay for the services, as well as what information (if any) will be disclosed to the referring agency. Unless such matters are understood in advance, it will be impossible to inform the prospective client about the potential limits of confidentiality, and about the therapist’s relationship to the referring agency.

Similarly, if services are ordered by the court, it will be important to know what the court’s order specifies about matters such as which party (or parties) will pay for the services, as well as what types of information will be provided to the court. (See Figure 1, item VIII.) These understandings must be provided to the prospective client in advance. If necessary, the court’s order may need to be amended or supplemented to clarify these understandings.

In both of the case situations described above, therapists are sometimes advised to clarify “who is the client.” In fact, some ethics codes recommend this. However, as noted in the previous section, this question presumes a singular answer, and this is not ethically helpful, since the therapist has ethical responsibilities to all of the parties involved in the case. (See Fisher, 2009, 2013, and 2016). For example, in the cases above, the social services agency or the court would be the “referring client,” and perhaps the “payer,” and the therapist must clarify the ethical
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responsibilities to those entities, as well as to the “therapy client,” whose confidentiality may be limited by the contract (or understanding) with the “referring client” or “payer.”

Re-Opening the Informed Consent Conversation

Years ago, there was discussion about whether the informed consent process was a “one-time event” at intake or as an “ongoing process” that continues throughout the relationship. “The event model treats informed consent as a procedure to be performed once in each treatment course, which must cover all legal elements at that time. The process model, in contrast, tries to integrate informing the patient into the continuing dialogue between physician and patient that is a routine part of diagnosis and treatment. We suggest that the process model has many benefits” (Liz et al., 1988, p. 1385).

But now, ethically speaking, the ethical requirements are clear. “Obtaining consent is not a discrete event; rather it is a process that should occur throughout the relationship between clinician and patient” (Willliams, 2008, p. 11). “The patient may consent to an initial psychological, neuropsychological, and medical assessment as well as to a course of individual therapy based on an initial, very provisional treatment plan. Later the assessment results, the patient’s response to treatment and changing circumstances may lead to a radical revision to the treatment plan. The patient needs to understand these revisions and agree to them” (Pope & Vasquez, 2016, p. 188).

Some Ethics Codes require that for the duration of the relationship, the informed consent discussion must be re-opened whenever warranted, or whenever it is unclear whether the client/patient understood the initial discussion. For example, APA Ethical Standard 4.02b requires that psychologists initiate a new conversation about limits of confidentiality “as new circumstances may warrant.” This includes changes in the providers policies, as well as changes in agency policies or state laws. Fisher (2016) recommends that discussion of the limits of confidentiality should be reopened “whenever some change in circumstances increases the risk of disclosure, thus allowing the client to weigh the risks of confiding further” (Fisher, 2016, p. 39).

Similarly, ACA Ethical Standard A.2.a. states that “informed consent is an ongoing part of the counseling process” and requires that counselors “appropriately document discussions of informed consent throughout the counseling relationship.” Furthermore, ACA Ethical Standard B.1.d states that “at initiation and throughout the counseling process, counselors inform clients of the limitations of confidentiality and seek to identify situations in which confidentiality must be breached.” Similarly NASW Ethical Standard 1.07e requires that the informed consent discussion of confidentiality and its limits should occur “as soon as possible in the social worker–client relationship and as needed throughout the course of the relationship.” Finally, AAMFT Ethical Standard 2.1 reminds marriage and family therapists that there may need to be “repeated” conversations about limits of confidentiality (Ethical Standard 2.1).

Pomerantz (2012) has suggested that it difficult to overstate “the salience of the benefits of informed consent, even in difficult or precarious clinical situations.” Citing risk-management literature, he emphasizes that “when it is well conducted, informed consent has the potential to
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benefit the therapist as well as the client. Not only is clinical outcome enhanced, but also the risk of questionable practice and a subsequent complaint, lawsuit, or other such action against the therapist is reduced. As such, it is advisable to consider revisiting informed consent during times of crisis or impasse in therapy, for the sake of all parties involved” (p. 329, emphasis added).

B. LEGAL CONSIDERATIONS ABOUT CLINICAL BEGINNINGS

In addition to the ethical requirements described above, psychotherapists and counselors have some legal requirements that affect their decisions about how to begin clinical relationships. These can arise from both state and federal laws and regulations. In some respect these can mirror (and therefore can legally reinforce) the professional ethical requirements described above. In other respects, however, they can be very different from (or sometimes be in conflict with) professional ethical standards.

It is therefore important to remember that ethical requirements and legal requirements have two very different sources, with ethical requirements arising from one’s own profession whereas legal requirements arise from legislatures and judges whose primary focus is not always on the best interest of psychotherapy patients. This is why most Ethics Codes contain provisions which make it a professional’s ethical responsibility to respond in certain ways when laws conflict with ethical standards. Knapp and colleagues also addressed this possibility in their 2007 article, “When ethics and laws collide.”

At times the laws under which psychologists function may appear to contradict generally recognized ethical values and/or good clinical care. When these circumstances arise, psychologists must determine if a conflict really exists and, if so, seek solutions that reconcile respect for the law with their ethical values. (Knapp, Gottlieb, Berman, and Handelsman, 2007, p. 54)

It is not unusual for this ethical-legal conflict to arise regarding issues of confidentiality. Psychotherapists who take the time to consider this possibility in advance will be prepared, not taken by surprise. This will also help the therapist be ready to discuss the possibility of such legally-created disclosures when describing the limits of confidentiality with prospective clients.

Psychologists faced with an ethical–legal conflict about confidentiality can best protect their clients if they have made some important ethical and personal decisions in advance. According to Knapp, Gottlieb, Berman, and Handelsman (2007), “at times, psychologists may decide to follow the law despite their ethical concerns. At other times, they may determine that a conscientious objection is warranted” (p. 54). In either case, the psychologist must understand the distinctions, predict the ethical–legal conflicts and their possible consequences, and make some difficult decisions in advance, using a structured decision-making process that takes into account both ethical duties and laws. (Fisher, 2012, p. 335)

     1. State Laws & Regulations

Unlike Ethics Codes, which apply nationally to all psychotherapists of a given profession, laws and licensing regulations vary widely from state to state. In spite of these differences, there are some consistencies across states. For example, every state has statutes and/or licensing regulations that require mental health professionals to inform prospective patients about certain things before providing services. There is considerable overlap across states, and one item on every state’s list is “limits of confidentiality”. (See links to examples of such state laws and regulations in “Examples of Federal and State Laws Affecting Confidentiality” on the website of the Center for Ethical Practice.)

Some state licensing boards also provide guidance about specific topics for psychotherapists. For example, the Virginia licensing boards for psychologists, social workers, and counselors each provide guidance documents for providers who are considering whether to begin a case that would involve the use of technology in the provision of intervention or supervision services.

States also sometimes have jurisdictional regulations that govern whether services can be provided to persons who are not licensed in that state. This can affect whether a therapist is legally free to begin a relationship with a prospective patient (or continue a relationship with a current patient) if the patient is sitting in another state where the therapist is not licensed. Each state’s rules are different, making it legally important for prospective psychotherapists to inform themselves before beginning a long-distance therapeutic interaction. Before providing services, therapists are advised to contact the appropriate licensing board in the state where the patient is sitting.

If your state already provides a list of all the laws and regulations that might create limits of confidentiality, that will certainly be helpful in preparing for the initial informed-consent discussion. Otherwise, perhaps the list provided in Figure 2 (above) will be helpful in searching for relevant examples of each type of potential disclosure required by your own state’s statutes and regulations, and for making your own list to match the actual policies in your setting. Without such planning, it will be difficult to be adequately prepared for the initial ethically- and legally-required conversation about confidentiality and its limits.

[RELEVANT VIRGINIA STATUTES AND REGULATIONS:  If you practice in the state of Virginia, the following information should be helpful. The state of Virginia has more than its share of laws and regulations that affect beginnings. Most of these have to do with laws and licensing regulations that can impose limits on the level of confidentiality that Virginia clinicians can promise to prospective patients. First, there are a list of specific regulations from several Virginia licensing board Practice Standards. These require clinicians to inform patients about certain things. Second, there are links to charts from the Center for Ethical Practice which direct you to Virginia laws that can limit confidentiality by requiring you to disclose or report confidential patient information in certain circumstances. Third, there are links to charts with details about Virginia’s reporting laws. All these charts provide links that take you directly to the text of the relevant Virginia laws. Obviously all such laws affect the initial informed-consent conversation, as well as any later conversations in which clinicians might need to remind the patient about the legal information that was previously discussed at intake, including the legally imposed limits of confidentiality.

Regulations from Virginia licensing boards:

Virginia Board of Counseling:

Practice Standard #B.7: Disclose all experimental methods of treatment and inform clients of risks and benefits of such treatment.

Practice Standard #B.9: Inform clients of the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services to be performed, the limitations of confidentiality, and other pertinent information when counseling is initiated, and throughout the counseling process as necessary. Provide clients with accurate information regarding the implications of diagnosis, the intended use of tests and reports, fees, and billing arrangements.

Practice Standard #B.11: Determine whether a client is receiving services from another mental health service provider, and if so, refrain from providing services to the client without having an informed consent discussion with the client and having been granted communication privileges with the other professional.

Practice Standard #D.4: Recognize conflicts of interest and inform all parties of nature and directions of loyalties and responsibilities involved. Practice Standard #F: Persons licensed by the board shall advise their clients of their right to report to the Department of Health Professions any information of which the licensee may become aware in his professional capacity indicating that there is a reasonable probability that a person licensed or certified as a mental health service provider, as defined in §54.1-2400.1 of the Code of Virginia, may have engaged in unethical, fraudulent or unprofessional conduct as defined by the pertinent licensing statutes and regulations.

Virginia Board of Psychology:

Practice Standard #B.11: Inform clients of professional services, fees, billing arrangements and limits of confidentiality before rendering services. Inform the consumer prior to the use of collection agencies or legal measures to collect fees and provide opportunity for prompt payment

Virginia Board of Social Work:

Practice Standard #B.6: Ensure that clients are aware of fees and billing arrangements before rendering services.

Practice Standard #B.7: Inform clients of potential risks and benefits of services and the limitations on confidentiality and ensure that clients have provided informed written consent to treatment.

Practice Standard #B.10: As treatment requires and with the written consent of the client, collaborate with other health or mental health providers concurrently providing services to the client.

Practice Standard #B.12: Recognize conflicts of interest and inform all parties of nature and directions of loyalties and responsibilities involved.

Practice Standard #D.4: [regarding Dual Relationships:] Recognize conflicts of interest and inform all parties of the nature and directions of loyalties and responsibilities involved.

Practice Standard #E Upon learning of evidence that indicates a reasonable probability that another mental health provider is or may be guilty of a violation of standards of conduct as defined in statute or regulation, persons licensed by the board shall advise their clients of their right to report such misconduct to the Department of Health Professions in accordance with § 54.1-2400.4 of the Code of Virginia.

Virginia Statutory Laws:

Virginia Health Records Privacy Law: § 32.1-127.1:03

Virginia laws affecting confidentiality: CHART: https://centerforethicalpractice.org/virginia-confidentiality

Virginia reporting laws: statutes: https://centerforethicalpractice.org/virginia-reporting-laws

Virginia reporting regulations: licensing Boards: https://centerforethicalpractice.org/virginia-reports-misconduct

Other Virginia laws affecting informed consent by requiring certain disclosures:

§ 54.1-2411; “Practitioner Self-Referral Act” (Requires Informing Clients of Financial or Other Interests in the Services to Which You Refer Them)

§ 54.1-2400.1: Requires Informing Prospective Clients About “Duty to Protect” if Client Threatens Harm to Others

§ 5 4.1-2400.4: Requires Informing Clients How to Report Misconduct by Another Provider (“Duty to Inform”)

§ 54.1-2400.6; § 54.1-2400.7; § 54.1-2400.8: Requires Informing Health Care Provider Clients About Your Legal Requirements About Reporting Them in certain circumstances; Immunity § 54.1-2405: Informing Current or Recent Clients If Records Will Be Transferred ]

2. Federal HIPAA Regulations

Any mental health professional who electronically transmits patient-identifiable information will have numerous legal requirements under HIPAA (the Federal Health Insurance Portability and Accountability Act). The HIPAA Regulations were developed by the U.S. Department of Health and Human Services to fulfill the requirements of that Act, but enforcement rests with the U.S. Office of Civil Rights. (For links to useful information about HIPAA, see the website of the U.S. Office of Civil Rights: http://www.hhs.gov/ocr/hipaa/links.html)

Under the HIPAA Regulations, patients have certain legal rights and psychotherapists are legally responsible for informing prospective patients about these rights in a “Notice of Privacy Practices.” The rights include the following:

• Right to be informed in advance about the provider’s privacy/confidentiality policies;
• Right to obtain access to their own records;
• Right to place certain conditions on how they are to be contacted;
• Right to request limitations on disclosures;
• Right to obtain documentation of disclosures made without patient consent
• Right to request amendments to their records

Regarding the first item on the above list, note that the HIPAA “Final Rule” (or “Omnibus Rule”) has a new requirement: Any disclosure the prospective patient was not informed about in the initial “Notice of Privacy Practices” will require the patient’s explicit consent at the time of the disclosure.

The “Notice” given to prospective patients must now inform patients of this fact, so it must now include a statement such as: “Uses and disclosures not described in this Privacy Notice will be made only with your authorization.”

This means the initial “Notice of Privacy Practices” must include an accurate description of the actual disclosure policies and potential confidentiality limits in their own setting. This makes it very important that practitioners use a setting-specific “Notice” rather than a “canned” HIPAA form.

These Federal HIPAA Regulations, although supposedly designed to protect clients’ privacy rights, actually allow broad disclosure of confidential information without the client’s consent in many circumstances.  Many have complained that, in this respect, the HIPAA Regulations actually reduced client confidentiality rights because the HIPAA list of “legally-allowed disclosures” goes far beyond those ordinarily considered “ethically-allowed” by most mental health professions.

Note, however, that although the HIPAA Regulations require psychotherapists to inform clients about certain things (as above), the HIPAA Regulations do not legally require that psychotherapists disclose anything to non-clients.. Be sure to note this difference between “legally-allowed” and “legally-required ” disclosures. It is ethically important to remember that whereas your profession’s Ethics Code may allow you to disclose confidential information whenever you are legally required or legally allowed to do so, your Ethics Code does not require you to disclose something simply because disclosure is legally allowed in a particular situation.  The fact that HIPPA legally allows broad disclosures without the client’s consent does not mean you are legally required to disclose in all those situations; and you are certainly not ethically required to do so.  If someone presses you to disclose information without the client’s consent and quotes a HIPAA section that allows you to do so, you are free to refuse to provide the information unless/until the client gives consent, except when your state laws require you to disclose it (e.g., by reporting child abuse as required by law).

One advantage of the HIPAA Regulations is that they require prospective clients/patients to be informed in advance about the potential “limits of confidentiality.” The downsides of HIPAA include the following facts:

(1) The legally-required “Notice of Privacy Practices,” if well constructed, can provide accurate information, but it is not a consent form. By signing the form, patients are simply acknowledging that the “Notice” was received. It is not a consent form.

(2) many practitioners use a HIPAA form that is too complicated for most patients to understand and too long for them to bother to read, so patients may give consent to receive services without understanding important details about the true “limits of confidentiality” that might apply; and

(3) when practitioners borrow forms from others they may be using a “Notice of Privacy Practices” that they do not themselves understand or which they have not actually read carefully, and which does not accurately describe their own actual confidentiality policies.

     3. Legally Binding Contracts

Mental health professionals often sign legally binding contracts that can limit their options about how relationships will begin, as well as what the rules will be regarding the limits of confidentiality.

          a. Group Practice Contracts & Agency Employment Contracts

Psychotherapists who belong to a group practice or who work for an agency or institution must be clear about their employment agreement and know how that affects the promises that can be made to patients at intake. For example, practitioners who change employment settings are sometimes surprised to learn that their contract stipulates that patient records generated by their work belong to the group practice or agency, not to the therapist.  Additionally, they may not know that their contract prevents them from establishing a new competing practice nearby.

In employment settings where there is no contract, such matters are often not discussed or clarified in advance.  However, some of these involve things that patients have a right to be informed about before they begin a therapy relationship.  This makes it ethically important to be clear in advance about any employment conditions that would affect patients’ rights.  This would include any disclosure or access policies in the agency or setting that will affect patients’ confidentiality rights.

          b. Managed Care Provider Contracts

If you are a managed care provider, you have signed contractual agreements which allow many of the decisions about fees, services, and confidentiality to be made by others.  As a result, the informed consent conversation becomes more complex and requires more preparation.

In order to be prepared to inform prospective patients honestly, you must understand the terms and limitations imposed by your own contractual agreements with managed care organizations.   Read your managed care contracts carefully.  If you have questions, you are encouraged to request clarification, preferably in writing.

Managed care contracts can affect all the subjects that must be covered with prospective patients:

1. Regarding professional services: How will you explain to prospective patients that the nature of services they receive may be guided more by their reimbursement plan than by optimum treatment that might otherwise be available for their problem? How will you explain that they may be reimbursed for significantly fewer sessions than the number they will actually need?  What will you say to prospective patients who will obviously need further services, but who will be unable to afford your fee?  If you have a “capitated contract” with any third party payor, how do you explain that this creates financial incentives to limit treatment?
2. Regarding fees: Does your provider contract allow you to discuss the disadvantages of using the available benefits?  Are you contractually free to bill the patient for “uncovered” services? Are you prepared to provide patients in advance with a statement of your “intended fees after managed reimbursement ends”?
3. Regarding billing arrangements:  What do your provider contracts say about billing for services beyond those covered by the managed care reimbursements?  What will you say in advance about billing arrangements after the managed reimbursement ends (e.g., will you bill on a “partial payment plan” schedule if the patient requests?  Will you charge interest on the unpaid balance?)?
4. Regarding patient records:  Who owns the records?  Who will have access to them?  How long will they be retained?
5. Regarding limits of confidentiality: In addition to the “standard” limits of confidentiality, what will you tell prospective patients about further limits that can be imposed by the managed care entity, as stipulated in your provider contract (e.g., the patient’s treatment file can be audited and read by non-clinicians as part of a compliance review)? (Davidson & Davidson, 1996)

C. PRACTICAL ETHICS: INTEGRATING ETHICAL, LEGAL, & CLINICAL RESPONSIBILITIES

How do the ethical and legal requirements above fit into the clinical goal of establishing a relationship with a new client?  We suggest the following perspective:

1. Engage in careful forethought and planning. Fumbling through the informed-consent discussion is not a helpful way to begin a clinical relationship. Good preparation can prevent therapist hesitation and defensiveness, can ensure that the information given to prospective patients will be accurate and can avoid over-reliance on written forms at the expense of a collaborative conversational process. Remember that this initial informed-consent conversation is the beginning of a clinical process. It is in the patient’s best interest that you conduct this initial conversation well.
   
2. Develop intake forms that accurately reflect your actual policies. If you borrow forms, carefully adapt them to your own setting. Include (1) the information required by your professional ethics code (see Figure 1, above); (2) legal information applicable to your state and setting; and (3) any additional information specific to your own practice setting.
3. Before the initial contact, when scheduling the first appointment, explain to prospective patients that the first meeting will be an evaluation session, during which you will be deciding whether or not you think you can be helpful, and prospective patients will be deciding whether or not to choose you as their therapist. (This will avoid misunderstandings such as those that arise if the prospective client believed that by scheduling the initial meeting, the clinician has already decided to described to be this person’s psychotherapist.) [See also “Initial Contact” in the Model provided at the end of this course in Figure 6.]
4. Provide prospective patients with simple, understandable written information about your availability in emergencies and the potential limits of confidentiality, including disclosures you might make voluntarily in your setting, as well as those that can be imposed by law. (See list in Figure 2, above)
5. Engage prospective patients in conversation about the information you have provided, and invite them to ask questions. Clarify your role with each involved party: Define your role with each party clearly and specifically (e.g., are you their psychotherapist; parent consultant; agency consultant, etc.?); clarify the limits of confidentiality in each role (e.g., limits of confidentiality for minors will be different from the confidentiality offered to adult patients; collateral parties will not be offered the same level of confidentiality as patients, etc,); and in multiple-party cases indicate any role differences across parties (e.g., in couple therapy, the roles and the rules will likely be the same with both parties, but they will be different from each other if the case is structured as individual therapy with a spouse present as a collateral party).
6. Maintain a clinical perspective and professional posture throughout the process. Remember that the goal of this informed-consent process is to protect the patient’s right to be informed about policies and risks before consenting to accept your services; but it is also a clinical beginning, and it helps set the tone/structure for the therapeutic relationship going forward. Do not enter the conversation defensively, “belittle” the discussion, provide excuses for the informed consent process, or apologize for it (e.g., “I wish we didn’t have to begin this way, but this is legally required,” etc.).  Instead, introduce it as a way of being sure that prospective patients understand the important information they need to understand before deciding whether to begin therapy with you. (e.g., “Before you begin telling me what brought you here, I need to explain some important things, especially about the fact that while confidentiality is the rule in psychotherapy, it will have some limits, because there are some things I can’t keep secrets about . . . .”).

D. ETHICAL PITFALLS: POTENTIAL IMPEDIMENTS TO A “TRULY INFORMED” CONSENT PROCESS*

*This section relies heavily on the following ethics text:
Pope, K.S. & Vasquez, M.J.T. (2016).  Ethics in Psychotherapy and Counseling:  A Practical Guide. Wiley, Hoboken N.J., Chapter 19, “Informed Consent and Informed Refusal” pp. 185–203

Pope and Vasquez (2016) suggested that one trap can involve “resenting consent as a formality to be gotten out of the way” (p. 185).  This posture can lead to any number of behaviors that fall short of protecting the patient’s informed-consent rights.

What is the most redoubtable obstacle to valid consent?  It is the still-prevalent attitude that obtaining consent is a necessary chore, a . . . hurdle to jump over.  Too often “consenting” a patient is reduced to the mechanistic imparting of information from clinician to patient or, worse still, the mere signing of a consent form, rather than the two-way, meaningful conversation between clinician and patient it should be.  If we can change this mindset and view obtaining consent as an ethical duty first and foremost, one that is central to respecting the autonomy and dignity of patients, then we will have taken a major step towards first-class consent. (Sokol, 2009, p. 3224).

Numerous things can interfere with carrying out the ethical and legal informed-consent responsibilities described above.  The list below illustrates some possible obstacles, but this list is not exhaustive.  As you read it, add items from your own personal experience, as well as issues created by your own clinical setting.

1. Therapist Reluctance. If we consider informed consent as a “chore” to be gotten out of the way, we are at risk for reducing the informed-consent process to “the mechanistic imparting of information from clinician to patient or, worse still, the mere signing of a consent form, rather than the two-way, meaningful conversation between clinician and patient it should be. If we can change this mindset and view obtaining consent as an ethical duty first and foremost, one that is central to respecting the autonomy and dignity of patients, then we will have taken a major step towards first class consent” (Sokol, 2009, p. 3224).

Pope & Vasquez (2016) concur: “Viewing consent as an obligation and burden makes it hard to meet the needs of patients . . . A first step in remedying the situation is to recognize that informed consent is not a static ritual but a useful process (p. 186).

Some therapists are especially concerned about beginning the relationship with a discussion of limits of confidentiality, or other potential risks.  For example, therapists may be aware that potential clients can sometimes arrive with the misconception that confidentiality will be absolute, so they may be unpleasantly surprised when informed about its many potential exceptions.

Some complain that it feels too much like beginning the relationship with a Miranda Warning.  In one national survey, although 80.2% of psychologists said they considered it very important to inform prospective patients about the limits of confidentiality, only 59.5% said they ordinarily did so before therapy began; 10.9% said they would discuss it “only when the issue arises;” and 2.2% said they rarely or never talked about it.  (Somberg, Stone, & Claiborn, p. 156). This means that many therapy patients are at risk of confiding very personal information without knowing that the therapist might later disclose it to someone else without their consent. (Fisher, 2013, p. 69)

Conversely, some therapists argue that discussion of the limits of confidentiality will be unnecessary because patients already know the rules and limits about confidentiality.

Therapists offer numerous rationales for short-cutting or omitting the ethically required informed consent conversation about confidentiality. Sometimes these involve rationalizations that reflect a blatant disregard for the client’s informed consent rights. For example, one study indicated that of those who sometimes neglected to tell prospective patients that confidentiality might be breached, 46.7% either considered the conversation “not relevant or necessary” or were deliberately “avoiding the negative impact” of explaining confidentiality’s limits. Of those therapists who completely skipped the informed consent conversation about confidentiality, 13.3% did so because they believed the patient “already has knowledge of the issue” and 7.5% because they believed patients were “unable to understand.” (Somberg, Stone & Claiborn, 1993, p. 157)

Note that some of these rationales ignore the fact that the limits of confidentiality can vary from clinician to clinician, and from setting to setting, so it is actually impossible for any prospective patient to already have accurate knowledge of the limits that a particular psychotherapist will impose on confidentiality.

2. Clinical Concerns. Some clinicians fear that beginning with an informed-consent conversation will undermine the clinical process. It is important for therapists to understand that regardless of how well based their clinical concerns or other worries might be, ethically speaking, these clinical concerns are completely irrelevant! Prospective patients have a right to be informed in advance about information that might affect their decision to begin therapy, and therefore such conversations are ethically required, regardless of their clinical impact.

Clinically speaking, it may be preferable to begin a relationship by listening, not by explaining that what is about to be said may not remain confidential.  Ethically speaking, however, psychologists who place conditions on confidentiality are not free to treat discussion of this risk as irrelevant or unnecessary, no matter how clinically inconvenient. (Fisher, 2008, pp. 3-4).

We may as clinicians fear that providing adequate information to patients and explicitly obtaining their consent will somehow derail therapy and may in fact have detrimental consequences for our patients.  The research has not supported those fears.  The process of informed consent tends to be beneficial.  A variety of studies have indicated that the use of informed consent procedures makes it more likely that patients will become less anxious, follow the treatment plan, recover more quickly, and be more alert to unintended negative consequences of the treatment (Handler, 1990).  Debra Pinals (2009) wrote that “informed consent can enhance the therapeutic alliance and help improve treatment adherence” (p. 33). (from Pope & Vasquez, 2016, p. 196)

In other words, when the therapist enters well prepared and without defensiveness, the informed consent conversation can be a helpful way to begin to develop a trusting relationship.  Actually, recent research continues to suggest that a well-conducted informed consent conversation can actually have positive benefits for the therapeutic relationship.  Prospective patients respond well when therapists provide important information and provide copies in writing that prospective patients can take home with them; invite questions and respond to them undefensively; and then if the prospective patient agrees to commence therapy, obtains the informed patient’s signature to document their voluntary consent to receive services under the described conditions.  Research across the years suggests that prospective patients perceive such therapists as more trustworthy and more expert (Barnett, 2007; Fisher & Oransky, 2008; Handelsman, 1990; Pomerantz, 2012; Sullivan, Martin, & Handelsman, 1993; Wagner, Davis, & Handelsman, 1998).

3. Lack of Preparation and Overreliance on Written Forms. As we noted above, “nothing blocks a patient’s access to help with such cruel efficiency as a bungled attempt at informed consent” (Pope & Vasquez, 2016, p. 185). An effective informed consent process requires a great deal of forethought and preparation. Psychotherapists who have not engaged in adequate preparation will be much more likely to “bungle” the process because they will be unable to present the necessary information and unable to answer questions honestly and undefensively.

An unprepared therapist may delegate the informed-consent process to others or may be more likely to rely on written forms rather than having an interactive conversation.  If providers do not respect the concept of informed consent, or if they consider it a “burden” rather than an ethically important process that protects the patient, then they are less likely to prepare in advance for the initial conversation (Fisher, 2013). In fact, the prospective therapist must be prepared to provide certain information in advance, as required by his/her professional Ethics Code and by HIPAA (as described above).  If desired, this information can be provided to prospective patients in writing in advance, and it may actually be presented to them initially by others, but it the psychotherapist’s responsibility to be sure the prospective patient understands the information, especially the information about potential risks (e.g., about the limits of confidentiality and the possibility that certain information shared with the provider may need to be reported or disclosed).

Engaging in forethought and preparation about the informed consent process can benefit the psychotherapist as well as the patient, because it encourages the psychotherapist to reflect carefully on the practices and policies that will be described to the prospective patient.

The informed consent process can ensure that clients have an accurate grasp of some of the ground rules of psychotherapy. In the process, the therapist can be informed as well. . . A prerequisite to communicating information to clients is to develop that information in the first place. As such, creating and exercising an informed consent process helps therapists think through the various aspects of their practices, in the process clarifying the process for themselves more thoroughly than it might have been if informed consent was not sought. (Pomerantz, 2012, p. 316)

Unprepared therapists are more likely to rely on a set of forms and to try to let the forms do the work. Psychotherapists in clinics, agencies, or hospitals may not even handle the intake forms themselves.  “The client who shows up for an initial appointment may be handed an imposing-looking form by the receptionist, asked to read it, sign it, and return it before seeing the therapist.  The form itself may have been crafted by the clinic’s or hospital’s attorney and may not even have been reviewed by a clinician” (Pope & Vasquez, 2016, p. 199).  In such cases it is important for the therapist to take responsibility for reviewing the main points covered on the informed consent forms, inviting prospective patients to ask questions, and being sure they understand what they have signed.

Research continues to reflect the problems created by relying on printed forms instead of adequately informing prospective patients.  One study found that patients presumed the forms were intended to protect providers, not to protect them or their rights (Akkad et al., 2006).  According to other studies, over half of prospective patients acknowledged that they did not even read the printed forms and many had “no or very little recall of the information they had been given” (Özham et al., 2014, p. 715).  Reasons given by patients included such things as being unable to understand the form or finding it too difficult to read.

In many settings, the consent form is presented by others, before a psychotherapist ever meets with the prospective patients for the first time.  The problem can be avoided only if the individual psychotherapists begin the relationship by explaining the information in simpler language appropriate to the patient, invites questions in a way that helps to create a real conversation, and ensures that they have actually received the prospective patient’s informed consent, not just a signature on a consent form.

4. Failure to Respect the Patient’s Right to Give “Informed Refusal.” Once a client has been adequately informed, the informed client can either (1) give consent to participate or can (2) refuse to give consent to participate in the service being offered. Some Ethics Codes require that prospective clients be informed about their right to refuse. For example, social workers are ethically responsible for informing clients of their “right to refuse or withdraw consent” (NASW Ethical Standard 1.03(s)).

“A client who does not like the specifications and risk-benefit statement offered by the therapist can generally decide not to seek treatment or to seek alternative care” (Koocher & Keith-Spiegel, 2016, p. 69); but exceptions include minors, others who have been deemed not competent to give consent, or clients who are participating involuntarily (e.g., only because ordered by a court).

Some Ethics Codes require that with clients who are not capable of giving consent, the psychotherapist has certain responsibilities.  Social workers must “provide an appropriate explanation to the participants,” inform clients “consistent with the client’s level of understanding” and “obtain the participants’ assent to the extent they are able” (NASW Ethical Standards 1.03(a) and 5.02 (f)).  Counselors, “when counseling minors, incapacitated adults, or other persons unable to give voluntary consent” must “seek the assent of clients to services and include them in decision making as appropriate” (ACA Ethical Standard A.2.d). Psychologists, before working with clients for whom “services are court ordered or otherwise mandated” must “inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated, and any limits of confidentiality, before proceeding (APA Ethical Standard 3.10(d)).  Psychologists providing services to “persons who are legally incapable of giving informed, are ethically required to “(1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such person’s preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law.  When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual’s rights and welfare” (APA Ethical Standard 3.10(b)).  Similarly, “When persons, due to age or mental status, are legally incapable of giving informed consent, marriage and family therapists obtain informed permission from a legally authorized person, if such substitute consent is legally permissible” (AAMFT Ethical Standard 1.2).

PART TWO:  ENDINGS

In an ideal world, therapists provide continuing service as long as it is needed and beneficial.  But few of us live in that particular world.

(Pope & Vasquez, 2016, p. 177)

Endings can sometimes be difficult, even if they are timely and mutually agreed upon, but they can be especially complicated when unplanned and untimely, or in situations when a psychotherapist finds the ending difficult for personal reasons.  Perhaps the most difficult of all are those endings that are initiated by the therapists against the wishes of the patient.

Ending any type of psychotherapy relationship is often hard to do, and as people who have devoted their lives to helping others, psychologists find approaching these issues in psychotherapy most difficult. Facing the need to terminate a professional relationship can be an unpleasant matter and may entail risk for the practitioner if not conducted appropriately. Very little attention has been devoted to this issue in the literature, and there is little empirical evidence regarding the extent to which problems with termination even exist. Therefore, we believe that practitioners are generally not well prepared to manage these situations when they arise. (Younggren & Gottlieb, 2008, p. 503)

A. ETHICAL OBLIGATIONS ABOUT PSYCHOTHERAPY ENDINGS

Every mental health profession has some Ethical Standards that affect therapists’ decisions about whether, when, and how to end clinical relationships.  As discussed later in Part III of this course, knowing these Ethical Standards can be helpful in planning the initial conversation with prospective patients, as well as in planning the ending.

 

_______________________________________________________________________

B. LEGAL CONSIDERATIONS ABOUT CLINICAL ENDINGS

Most legal requirements relevant to psychotherapy termination issues will be found in state licensing board regulations or statutes, and these vary widely from state to state.  Perhaps the most frequent legal requirements are those related to continuity of care, as well as those requiring therapists to justify all services rendered to clients as necessary and appropriate for diagnostic or therapeutic purposes.  There may also be legal regulations that require psychotherapists to maintain post-termination for a specified number of years; and legal regulations can require psychotherapists to delay post-termination romantic/sexual relationships with former patients.

[RELEVANT VIRGINIA STATUTES & REGULATIONS:

For Virginia clinicians, most of the legal considerations arise from licensing board practice standards.

Regulations from Virginia Licensing Boards:

Virginia Board of Psychology:

Practice Standard #B-7:  Withdraw from, adjust or clarify conflicting roles with due regard for the best interest of the affected party or parties and maximal compliance with these standards;

Practice Standard #B-8: Not engage in sexual intimacies or a romantic relationship with a student, supervisee, resident, therapy patient, client, or those included in collateral therapeutic services (such as a parent, spouse, or significant other) while providing professional services. For at least five years after cessation or termination of professional services, not engage in sexual intimacies or a romantic relationship with a therapy patient, client, or those included in collateral therapeutic services. Consent to, initiation of, or participation in sexual behavior or romantic involvement with a psychologist does not change the exploitative nature of the conduct nor lift the prohibition. Since sexual or romantic relationships are potentially exploitative, psychologists shall bear the burden of demonstrating that there has been no exploitation;

Practice Standard #B-10: Make reasonable efforts to provide for continuity of care when services must be interrupted or terminated;

Practice Standard #B-13: Keep pertinent, confidential records for at least five years after termination of services to any consumer;

Virginia Board of Social Work:

Standard of Professional Conduct #B-1: Be able to justify all services rendered to or on behalf of clients as necessary for diagnostic or therapeutic purposes.

Standard of Professional Conduct #B-2: Provide for continuation of care when services must be interrupted or terminated.

Standard of Professional Conduct #C-5: Maintain client records for a minimum of six years or as otherwise required by law from the date of termination of the therapeutic relationship with the following exceptions:

1. At minimum, records of a minor child shall be maintained for six years after attaining the age of majority or 10 years following termination, whichever comes later.
2. Records that are required by contractual obligation or federal law to be maintained for a longer period of time.
3. Records that have been transferred to another mental health professional or have been given to the client or his legally authorized representative.

Standard of Professional Conduct #D-2: Not have any type of romantic relationship or sexual intimacies with a client or those included in collateral therapeutic services, and not provide services to those persons with whom they have had a romantic or sexual relationship. Social workers shall not engage in romantic relationship or sexual intimacies with a former client within a minimum of five years after terminating the professional relationship. Social workers who engage in such a relationship after five years following termination shall have the responsibility to examine and document thoroughly that such a relationship did not have an exploitive nature, based on factors such as duration of therapy, amount of time since therapy, termination circumstances, client’s personal history and mental status, adverse impact on the client. A client’s consent to, initiation of or participation in sexual behavior or involvement with a social worker does not change the nature of the conduct nor lift the regulatory prohibition.

Virginia Board of Counseling:

Standard of Practice #B-4: Be able to justify all services rendered to clients as necessary and appropriate for diagnostic or therapeutic purposes;

Standard of Practice #B-5: Document the need for and steps taken to terminate a counseling relationship when it becomes clear that the client is not benefiting from the relationship. Document the assistance provided in making appropriate arrangements for the continuation of treatment for clients, when necessary, following termination of a counseling relationship;

Standard of Practice #B-6: Make appropriate arrangements for continuation of services, when necessary, during interruptions such as vacations, unavailability, relocation, illness, and disability;

Standard of Practice #C-5:  Maintain client records for a minimum of five years or as otherwise required by law from the date of termination of the counseling relationship with the following exceptions:

1. At minimum, records of a minor child shall be maintained for five years after attaining the age of majority (18) or 10 years following termination, whichever comes later;
2. Records that are required by contractual obligation or federal law to be maintained for a longer period of time; or
3. Records that have been transferred to another mental health service provider or given to the client or his legally authorized representative.

Standard of Practice #D-2: Not engage in any type of romantic relationships or sexual intimacies with clients or those included in a collateral relationship with the client and not counsel persons with whom they have had a romantic relationship or sexual intimacy. Counselors shall not engage in romantic relationships or sexual intimacies with former clients within a minimum of five years after terminating the counseling relationship. Counselors who engage in such relationship or intimacy after five years following termination shall have the responsibility to examine and document thoroughly that such relations do not have an exploitive nature, based on factors such as duration of counseling, amount of time since counseling, termination circumstances, client’s personal history and mental status, or adverse impact on the client. A client’s consent to, initiation of, or participation in sexual behavior or involvement with a counselor does not change the nature of the conduct nor lift the regulatory prohibition; ]

C. PREPARING FOR DIFFERENT POTENTIAL TERMINATION CONTEXTS

Most often, psychotherapists and their patients make joint decisions about ending treatment (Davis, 2008), but this is not always possible.  Below, we list only a few of the possible reasons that psychotherapy might end or might need to be suspended temporarily.  As noted later in Part III, many of these potential circumstances can be discussed as part of the initial informed consent process with prospective patients, before therapy ever begins.  When that has been done, patients are not taken by surprise by the therapist’s policies if they arise later.

     1. Termination Contexts

          a. Termination by Mutual Agreement. This is the least complicated type of termination. It can take place when treatment goals have been met or when there is a mutual agreement in advance about the number of available visits. It can also include transfers to a different provider or specialty service, if necessary and appropriate.

          b. Financially Driven Premature Terminations. This can include situations when patients unexpectedly lose employment or become unable to pay because of other changes in their financial circumstances. It can include unexpected changes in their third policy payer contract.  However, it can also include circumstances that were possible to predict at intake and should have been discussed then, before there was a commitment to begin the psychotherapy relationship. (This is required at intake by APA Ethical Standard 6.d.)  Unless potential financial limits are discussed at the beginning, patients often presume that the relationship will continue, even if they are not paying.  It is ethically and clinically inappropriate for the psychotherapist to allow patients to accumulate debts without ever directly addressing the issue. (Knapp et al., 2013).  If such an ending is predictable, it is ethically important to provide information that can help the patient have time to obtain other services.

          c. Patient is Not Benefitting or is Being Harmed. This may be determined by the patient’s perception, the therapist’s perception, or both. All professional ethics codes and many legal practice standards include this as a reason the therapy relationship may be or should be terminated.

          d. Patient Directly Threatens the Psychotherapist. Some professional ethics codes explicitly state that the psychotherapist may terminate with a patient in this circumstance. In their risk-management manual, Knapp et al (2013) similarly state, “We recommend that psychologists seriously consider terminating a patient immediately when the patient or a close friend or relative of a patient threatens to harm the psychologist” (p. 215).

Judge Hjelt believes the psychotherapist should terminate immediately if threatened with harm.

A number of years ago I sat in a room with approximately 400 psychologists at a program at the American Psychological Association (APA) convention in Washington, DC. It was one of the “ethical dilemma” sessions and had a number of different vignettes meant to highlight problems that a typical practitioner might encounter in his or her practice. One of the hypothetical vignettes posed the following question: “My client just threatened my life. How many further sessions are required to effectuate a legally and ethically appropriate termination? “After listening to a succession of psychologists in the audience weigh in with answers such as “at least two,” “five,” or “you cannot terminate therapy against a patient’s wishes,” I felt compelled to raise my hand and say words to the effect: “Folks, I’m not a psychologist, although I’ve been an APA member for a long time. I’m a judge in a court that hears cases when a Board of Psychology seeks to sanction a psychologist’s license due to ethical and standard of care violations. Let me humbly suggest that the answer is . . . ZERO” (Hjelt, 2011, p. 167)

          e. Patient Requests Termination or Fails to Keep Appointments. This would include explicit requests to end the relationship, or ctions such as unexplained patient absences or an unwillingness to accept the planned schedule of appointments. Therapist responses to this circumstance would need to depend upon the clinical circumstances.

          f. Psychotherapist-Initiated Terminations. In addition to some of the categories already described above, this could include cases in which the client engages in conduct inconsistent with the safety and integrity of the clinical work, including noncompliant or fraudulent behavior, actions disruptive to others in the setting, or other circumstances that compromise the feasibility or quality of service. (See Davis, 2008.)

Duty can become quite confusing and difficult to discharge when the psychotherapist feels that termination and referral are appropriate and the patient objects to this.  In this circumstance, the patient certainly has the right to object and hear why this is necessary, but the patient does not have a right to insist that the treatment continue over the objections of the responsible party — the psychotherapist.

          g. Therapist’s Unexpected Absence. This category can include therapist absences created by family emergencies, or by therapist illness, hospitalization, incapacitation, or death.

Ethics Codes require that providers make advance plans about unexpected absences (see Figure 3, above).  This can ensure continuity of patient care and handling of any required referrals and/or transfer of records.  For psychotherapists employed by agencies, there is usually a transition plan in place, with other clinicians available to contact patients and make referrals for continuity of care.  For psychotherapists in group practices, transition or emergency plans are sometimes in place or provided by the group contract; but this varies, and sometimes the individual clinicians must make advance plans on their own.

Psychotherapists in private clinical practice are strongly advised to put their own personalized plan in place.  Having a “Professional Living Will” (sometimes called a “Professional Advance Directive”) can provide for a chosen colleague to step into place to prevent an abrupt ending of available services in the event a therapist is struck by an unexpected illness, becomes incapacitated, or dies.  Pope & Vasquez (2016) provide helpful guidance in their article, Therapist’s Guide for Preparing a Professional Will.  The Center for Ethical Practice provides a sample at https://centerforethicalpractice.org/wp-content/uploads/SAMPLE-Professional-Living-Will.pdf

In the absence of such a clear plan, clients can be left with an abrupt and unexplained ending of their therapy relationship.  The planned contact with clients can be expedited so that clients are not left with a long silence, unexpectedly missed sessions, unanswered phone contacts, or unexplained silence.  The first contact should be from a clinician who is prepared to respond, not from an unprepared non-clinician (e.g., secretary or receptionist or billing clerk) or from a bereaved spouse (even if that spouse is a clinician).

2. Planning for Termination

     a. At intake, provide complete description of the therapeutic process, obtain informed patient’s consent to participate in this process, and provide reminders throughout treatment, as appropriate.

     b. Ensure that psychotherapist and patient collaboratively agree on goals for therapy and the ending of therapy.

     c. Provide periodic progress updates that include discussions of termination and provide pre-termination counseling.

     d. Help clients develop health and referral plans for post-termination life.

     e. Make sure you understand termination, abandonment, and their potential effects on patients.

     f. Consider developing (and updating) your professional will so it will be in place in the event of unexpected terminations created by your death or disability.

     g. Make the topic of termination part of your regular continuing education or professional development training.

     h. Monitor your clinical effectiveness and personal distress, since therapists who self-monitor and practice effective self-care are less likely to have inappropriate terminations or clients who feel abandoned.

Regarding the “pretermination counseling” mentioned in item “c” above, Vasquez et al. (2008) recommend the following:

Pretermination counseling prior to ending a therapeutic relationship may include:

*Providing clients with advance notice or negotiating together the end date of services,

*Reviewing gains made in treatment,

*Considering potential relapse risks and how to handle them,

*Addressing future challenges to be dealt with either outside of psychotherapy or when the patient returns to psychotherapy, and

*Offering referrals for alternative practitioners when the patient has ongoing treatment needs. (p. 657)

Other ethical recommendations about termination are available in professional ethics texts and published articles.  For example, see “Guidelines for terminating psychotherapy” by Shefet & Curtis (2005and “Leaving a Practice” by Barnett, Zimmerman, & Walfish (2014).

For example, see “Guidelines for terminating psychotherapy” by Shefet & Curtis (2005), and “Leaving a Practice” by Barnett, Zimmerman, & Walfish (2014).

D. CLOSING A PRACTICE: RELOCATION, RETIREMENT, ILLNESS, DEATH

These are special kinds of “endings.”  Psychotherapists are encouraged to seek consultation and support in planning in advance about such circumstances, since they sometimes require psychotherapists to navigate their way through multiple endings within a short period of time.

It is highly recommended that this advance preparation include the development of a “Professional Will” or “Professional Advance Directive.” (See “Therapist’s Unexpected Absence,” above, as well as the list of “Resources When Retiring or Closing a Psychotherapy Practice” in the ADDENDUM at the end of this course.)

The Ethics Codes for mental health professionals contain Ethical Standards related to relocating or ending a clinical practice, including standards about continuity of care:

ETHICAL STANDARDS RELATED TO ENDING A PRACTICE

PSYCHOLOGY: American Psychological Association (2017).  Code of Ehics

           3.12 – Interruption of Psychological Services

           6.02 – Maintenance, Dissemination, and Disposal of Confidential Records

          10.09 – Interruption of Therapy

          10.10 (c) – Terminating Therapy

SOCIAL WORK: National Association of Social Workers (2017). Code of Ethics

          1.07 (s, t) – Privacy and Confidentiality

          1.15 – Interruption of Services

          1.17 – Termination of Services

          3.04 (d) – Client Records
 

COUNSELING: American Counseling Association (2014). Code of Ethics

          A.2.b – Informed Consent in the Counseling Relationship

          A.11a – Competence Within Termination and Referral

          A.11b – Values Within Termination and Referral

          A.11c – Appropriate Termination

          A.12 – Abandonment and Client Neglect

          B.6.g – Disclosure or Transfer

          B.6.h – Storage and Disposal After Termination

          B.6.i – Reasonable Precautions

          C.2 h – Counselor Incapacitation, Death, Retirement, or Termination of Practice

As for client records, Ethics Codes require that they be maintained in a way that protects client confidentiality and complies with relevant laws.  However, no Ethics Code imposes a specific period of time for retaining records.  This is because each state has its own set of legal requirements about record retention and disposal times (e.g., see Virginia legal section, below).

However APA does have an extensive set of Record Keeping Guidelines (2007). While stipulating that psychologists must follow their own state’s legal requirements, they provide detailed recommendations about record keeping, including record retention recommendations:

The APA Record Keeping Guideline #7 contains only the following simple sentence: “The psychologist strives to be aware of applicable laws and regulations and to retain records for the period required by legal, regulatory, institutional, and ethical requirements.” However, the “Application” section of this Guideline contains the following extensive recommendation:

            “In the absence of a superseding requirement, psychologists may consider retaining full records until 7 years after the last date of service delivery for adults or until 3 years after a minor reaches the age of majority, whichever is later. In some circumstances, the psychologist may wish to keep records for a longer period, weighing the risks associated with obsolete or outdated information, or privacy loss, versus potential benefits associated with preserving the records (See Guideline 8).

            “There are inherent tensions associated with decisions to retain or dispose of records. Associated with these decisions are both costs and benefits for the recipient of psychological services and for the psychologist. A variety of circumstances can trigger requests for records even beyond 7 years after the psychologist’s last contact with the client. For example, an earlier record of symptoms of a mental disorder might be useful in later diagnosis and treatment. In contrast, the client may be served by the disposal of the record as soon as allowed. For example, the client may have engaged in behavior as a minor that, if later disclosed, might prove demeaning or embarrassing. Also, retaining records over long intervals can be logistically challenging and expensive for the psychologist. The psychologist is encouraged to carefully weigh these matters in making decisions to retain or dispose of records.”

STATES:  LEGAL REQUIREMENTS RELATED TO CLOSING A PRACTICE

Mental health professionals are responsible for learning the legal requirements imposed by their state laws and regulations.

[RELEVANT VIRGINIA STATUTES & REGULATIONS

Virginia laws relevant to closing a practice (e.g., retirement, relocation, disability, or death):

VIRGINIA LICENSING BOARDS:

Board of Psychology:

Practice Standard #B-10: Make reasonable efforts to provide for continuity of care when services must be interrupted or terminated;

Practice Standard #B-13: Keep pertinent, confidential records for at least five years after termination of services to any consumer;

Board of Counseling: 

Practice Standard # B.6: Make appropriate arrangements for continuation of services, when necessary, during interruptions such as vacations, unavailability, relocation, illness, and disability;

Practice Standard # C.5: Client records must be maintained for a minimum of five years or as otherwise required by law from the date of termination of the counseling relationship with the following exceptions:
     a. At minimum, records of a minor child shall be maintained for five years after attaining the age of majority (18) or ten years following termination, which ever comes later;
b. Records that are required by contractual obligation or federal law to be maintained for a longer period of time; or
c. Records that have transferred to another mental health service provider or given to the client or his legally authorized representative. []

Board of Social Work:

Standard of Professional Conduct # B.2: Provide for continuation of care when services must be interrupted or terminated.

Standard of Professional Conduct # C.5: Maintain client records for a minimum of six years or as otherwise required by law from the date of termination of the therapeutic relationship with the following exceptions:

a. At minimum, records of a minor child shall be maintained for six years after attaining the age of majority or 10 years following termination, whichever comes later;
b. Records that are required by contractual obligation or federal law to be maintained for a longer period of time;
c. Records that have been transferred to another mental health professional or have been given to the client or his legally authorized representative.

VIRGINIA STATUTE § 54.1-2405. Transfer of patient records in conjunction with closure, sale, or relocation of practice; notice required. ]

FEDERAL:  HIPAA LEGAL STANDARDS

The Health Insurance Portability and Accountability Act (HIPAA) requires Covered Entities and Business Associates to maintain required documentation for a minimum of six (6) years from the date of its creation, or the date when it last was in effect, whichever is later. HIPAA preempts state requirements if the state has a shorter retention period. If you have any questions specific to your state’s records retention policies, it is best to contact your legal counsel for their recommendations.

The HIPAA Privacy Rule requires that covered entities apply appropriate administrative, technical, and physical safeguards to protect the privacy of protected health information (PHI), in any form. See 45 CFR 164.530(c). This means that covered entities must implement reasonable safeguards to limit incidental, and avoid prohibited, uses and disclosures of PHI, including in connection with the disposal of such information. In addition, the HIPAA Security Rule requires that covered entities implement policies and procedures to address the final disposition of electronic PHI and/or the hardware or electronic media on which it is stored, as well as to implement procedures for removal of electronic PHI from electronic media before the media are made available for re-use. See 45 CFR 164.310(d)(2)(i) and (ii). Failing to implement reasonable safeguards to protect PHI in connection with disposal could result in impermissible disclosures of PHI.

Further, covered entities must ensure that their workforce members receive training on and follow the disposal policies and procedures of the covered entity, as necessary and appropriate for each workforce member. See 45 CFR 164.306(a)(4), 164.308(a)(5), and 164.530(b) and (i). Therefore, any workforce member involved in disposing of PHI, or who supervises others who dispose of PHI, must receive training on disposal. This includes any volunteers. See 45 CFR 160.103 (definition of “workforce”).

Thus, covered entities are not permitted to simply abandon PHI or dispose of it in dumpsters or other containers that are accessible by the public or other unauthorized persons. However, the Privacy and Security Rules do not require a particular disposal method. Covered entities must review their own circumstances to determine what steps are reasonable to safeguard PHI through disposal, and develop and implement policies and procedures to carry out those steps. In determining what is reasonable, covered entities should assess potential risks to patient privacy, as well as consider such issues as the form, type, and amount of PHI to be disposed. For instance, the disposal of certain types of PHI such as name, social security number, driver’s license number, debit or credit card number, diagnosis, treatment information, or other sensitive information may warrant more care due to the risk that inappropriate access to this information may result in identity theft, employment or other discrimination, or harm to an individual’s reputation.

In general, examples of proper disposal methods may include, but are not limited to:

• For PHI in paper records, shredding, burning, pulping, or pulverizing the records so that PHI is rendered essentially unreadable, indecipherable, and otherwise cannot be reconstructed.
• Maintaining labeled prescription bottles and other PHI in opaque bags in a secure area and using a disposal vendor as a business associate to pick up and shred or otherwise destroy the PHI.
• For PHI on electronic media, clearing (using software or hardware products to overwrite media with non-sensitive data), purging (degaussing or exposing the media to a strong magnetic field in order to disrupt the recorded magnetic domains), or destroying the media (disintegration, pulverization, melting, incinerating, or shredding).

Other methods of disposal also may be appropriate, depending on the circumstances. Covered entities are encouraged to consider the steps that other prudent health care and health information professionals are taking to protect patient privacy in connection with record disposal. In addition, if a covered entity is winding up a business, the covered entity may wish to consider giving patients the opportunity to pick up their records prior to any disposition by the covered entity (and note that many states may impose requirements on covered entities to retain and make available for a limited time, as appropriate, medical records after dissolution of a business).

E. ETHICAL PITFALLS: POTENTIAL IMPEDIMENTS TO ETHICALLY APPROPRIATE ENDINGS

Termination is a complex process that is affected by both patient and psychotherapist variables. Psychotherapists tend to blame problematic or premature terminations on the patient rather than on themselves (Murdock et al., 2010). Undoubtedly, certain categories of patients may complicate the termination process. But perhaps, in focusing on patient variables, we have paid too little attention to psychotherapist variables (Behnke, 2009; Boyer & Hoffman, 1993). (Fisher, 2011b, p. 163)

Patients can sometimes make psychotherapy endings difficult, and in such cases, clinical consultation can be important (Younggren, 2011).  However, therapists themselves can also bring issues that complicate terminations.

     1. Do Not Base Termination Decisions on Fear of Being Accused of “Abandonment”

Younggren and Gottlieb (2008) defined termination as “the ethically and clinically appropriate process by which a professional relationship is ended” and defined abandonment as the absence of that process. These authors further stated that “abandonment represents the failure of the psychologist to take the clinically indicated and ethically appropriate steps to terminate a professional relationship” (p. 500). According to these authors, and others, terminating a case over the objection of the patient or when the nature of the contractual relationship with the patient has changed may not only be appropriate, but (as reflected in Figure 3, above) it may be ethically necessary (Davis, 2008).

I have had the opportunity to do hundreds of risk management consultations over the years and have become greatly concerned about how distorted many clinicians’ views are regarding their duty when dealing with termination of the professional relationship. Frequently, when discussing a case where no progress is happening, conflict exists at every corner, payment for services has stopped, treatment goals have become lost, and patients are not compliant, psychologists often respond to the suggestion that they terminate with the question, “Isn’t that abandonment?” The answer to this question, of course, is, “No.” In these types of cases termination is not only likely to be appropriate but it is often also necessary and to do otherwise can actually put the treating  psychologist at risk. (Younggren, 2011, p. 161)

Often it is not termination itself that is problematic but how it is accomplished.  As reflected in the Ethical Standards listed above in Figure 3, under some conditions, clinicians have an ethical duty to terminate.

Although a client may object to ending treatment, the psychologist retains responsibility for making treatment decisions based on sound professional judgments.  Behind these judgments are the values in the Ethics Code and clinical experience.  Making a decision that a client does not like may be entirely appropriate if the decision is based upon sound clinical reasoning and is in the client’s best treatment interest.  To do otherwise could be viewed as inconsistent with our ethics.  (Behnke, 2009, p. 70)

Although it is not always easy to accomplish, and in some circumstances may be impossible, it is a psychotherapist’s ethical responsibility to try to provide a termination process, even if this is sometimes reduced to scheduling something as brief as one last-minute final session.

     2. Monitor Psychotherapist Issues That Can Affect The Termination Process

According to Davis and Younggren (2009), few psychotherapists include the topic of termination in their informed consent documents or discuss it at intake.  Fisher (2011b) focused on psychotherapist variables that might affect the termination process.  These variables might prevent the psychotherapist from raising termination at the beginning and might make it difficult for the psychotherapist to integrate termination issues into the therapy process as recommended above.

Once therapy begins, numerous psychotherapist factors might affect whether termination is discussed. Martin & Schurtman (1985) suggested that psychotherapists might  experience anxiety about termination because of such things as overconcern about whether it will be a “successful” termination; response to the patient’s termination  anxiety; or personal loss at the ending of what has been a meaningful therapy relationship. Others found that dissatisfaction with the results of treatment may be the most frequent psychotherapist hindrance to successful terminations, perhaps because the pending termination brings to the surface feelings of defeat and incompetency about the case (Brady, Guy, Poelstra & Brown, 1996). Conscious or not, such emotions might make it less likely that a psychotherapist would follow the advice to make reference to termination during the therapy or to raise issues of nonpayment or noncompliance that might lead to the need to end the relationship. Finally, reluctance to terminate can arise from practical concerns (e.g., financial worries; dwindling caseload) or from psychotherapist fears that the patient will be angry, retaliate, or file a complaint. (Fisher, 2011b, p. 164).

Psychotherapists who are personally uncomfortable with termination for any reason are less likely to initiate sufficient conversation about it at any stage of the psychotherapy relationship.  Davis and Younggren (2009) suggest that a psychotherapist’s competence in conducting a well-executed termination not only requires a strong ethical foundation and good clinical skills, but also taps such things as self-reflection and relationship capabilities.

The author suggests that questions such as the following might help psychotherapists recognize when they are doing things that unnecessarily complicate or hinder the termination process:

Figure 4 Psychotherapist Self-Reflection and Consultation About Termination1. Do my written informed consent documents and patient contracts mention patient responsibilities, including those related to termination?  If not, why not?2. At intake, do I discuss patient duties such as responsibility for participating in mutual goal-setting, monitoring progress, or planning for termination?  If not, why not?3. Do I re-open the conversation about termination if the contract needs to change (e.g., patient is making no progress; third party reimbursement is ending)?  If not, why not?4. Do I raise issues of nonpayment or noncompliance when they first arise, and consider the possible need for termination?  If not, why not?5. Do I dread ending particular therapy relationships?  If so, which ones, and why?6. As we approach the end of a therapy relationship, do I spend sufficient time exploring patients’ issues related to the ending, including negative as well as positive feelings about the therapy?  If not, why not?7. Do I remain aware of my possible role in complicating a termination, instead of just blaming the problems on patient variables?  If not, why not?8. Do I obtain consultation in cases involving difficult terminations?  If not, why not?(Adapted from Fisher (2011b), p. 164.)

Psychotherapists can use such self-reflection to remain aware of their possible need for ongoing consultation when facing difficult terminations. Psychotherapists who are unwilling to engage in self-examination will not likely benefit from the available resources, even when they come in the form of helpful ethical and legal recommendations. (Fisher, 2011b, p. 164)

PART THREE:
PUTTING IT ALL TOGETHER:
USING BEGINNINGS TO CREATE SAFER ENDINGS

“We contend that beginning and ending psychotherapy are not separatephases or components of therapy but are actually part of a continuum that requires professionals to adopt a longitudinal view of therapy that ties the various phases of treatment together.”

(Younggren & Davis, 2012, p. 418)

 A. FORETHOUGHT ABOUT ENDINGS FROM THE BEGINNING

Talking about termination during the initial informed consent conversation may be the most important thing one can do to reduce the likelihood of later difficulties with closure
(Younggren & Gottlieb, 2008).

“Effective termination begins during the initial psychotherapy session or another early session in which matters of informed consent are discussed. The most important thing a practitioner can do to reduce risk is to address the issue as a matter of informed consent from the outset. Through this mechanism, practitioners explain the details of the treatment relationship and make contracts with patients regarding what the psychotherapist will and will not do. This is also the time for the practitioner to explain what he or she expects of the patient. It is through this clarification of the professional–patient relationship that much of the difficulty associated with the closure of psychotherapy can be avoided.”  (Younggren, J.N. & Gottlieb, M.C. (2008). Termination and abandonment: history, risk, and risk management.  Professional Psychology: Research and Practice, 39, p. 502. Emphasis added)

Yet, reportedly, few psychotherapists include the topic of termination in their informed consent documents or discuss it at intake (Davis & Younggren, 2009). It is suggested that, even after the intake, termination should be discussed during the therapy process.

It is recommended that psychologists initiate a discussion of termination at three different stages of psychotherapy: (a) at intake; (b) during treatment, in anticipation of termination; and (c) when the ending actually occurs (Vasquez et al., 2008). The quality of such discussions might depend to some degree on the patient, and on the nature of the patient-psychotherapist relationship. But whether such discussions are actually initiated at each of these stages, and whether they are introduced in a manner conducive to effective interactions, would depend on psychotherapist variables, not patient variables. . . Intake is the appropriate time for a psychotherapist to introduce discussion of the patient’s duties. . . Failure to initiate that discussion may result as much from a general tendency to shortcut the informed-consent conversation as from avoidance of the topic of termination in particular.” (Fisher, 2011b, p. 163)

As suggested in previous sections of this course, there are important reasons for giving advance consideration to termination issues and integrating discussion of termination into the psychotherapy process from the onset of the relationship.

Psychotherapists should find it easier to accomplish this step where they have woven some discussion of termination into the collaborative tasks of psychotherapy from the outset of informed consent and throughout the duration of psychotherapy. (Davis & Younggren, 2009, 578)

Written intake materials can provide prospective patients with information about when the psychotherapist might initiate termination, such as “when feasibility or quality of service is compromised; services are not benefiting or harming the client; or when client conduct is inconsistent with the safety or integrity of the work” (Davis & Younggren, 2009, p. 576). Davis (2008) even provides sample paragraphs that psychotherapists can use to describe both their termination policy and patient responsibilities.

Effective termination begins during the initial psychotherapy session or another early session in which matters of informed consent are discussed. The most important thing a practitioner can do to reduce risk is to address the issue as a matter of informed consent from the outset. Through this mechanism, practitioners explain the details of the treatment relationship and make contracts with patients regarding what the psychotherapist will and will not do. This is also the time for the practitioner to explain what he or she expects of the patient. It is through this clarification of the professional–patient relationship that much of the difficulty associated with the closure of psychotherapy can be avoided.” (Younggren & Gottlieb, 2008, p. 502, emphasis added)

Failure to initiate that discussion may reflect a general tendency to shortcut the informed consent conversation.  (See “Impediments to Informed Consent, above.)  However, it may also reflect avoidance of the topic of termination in particular. Obtaining the prospective patient’s informed consent includes (a) providing clear information about what the rules will be and (b) obtaining the informed patient’s consent to accept the conditions described, including any conditions that might affect termination. Many psychotherapists are either reluctant to begin a therapy relationship that way, or are confused about the specifics of the process (Barnett, Wise, Johnson-Greene & Bucky, 2007; Somberg, Stone, & Claiborn, 1993).

Ethics Codes list numerous things that psychotherapists are required to inform prospective patients about (see Figure 1); and as described above, the legal requirements imposed by the HIPAA regulations lengthen the list.  The topic of “termination” is not always listed among the ethically- or legally-required intake topics. However, some ethics codes do contain a requirement to discuss foreseeable financial issues that might lead to a “premature” ending of psychotherapy.  (For example, see #6.04 (d) in above list of APA Ethical Standards )

Clarifying this before beginning psychotherapy can avoid a perception of “abandonment” when the adequate finances are no longer available.

Psychologists can often head off termination dilemmas by thinking ahead, say ethics experts. For example, a psychologist treats a woman until her insurance coverage expires, but when she can’t pay out of pocket, he explains that the relationship must end and facilitates her care to another provider. To avoid the misperception that the psychologist “dumped” the client, the psychologist discusses the treatment timeline at their first session, including the differences between short- and long-term therapy and what could happen if therapy was needed beyond what the woman’s insurance covered. If there are cases in which it’s apparent that a patient may have financial troubles at therapy’s start, give consideration before you take the case, say ethics experts. And make sure you are aware of clients for whom financial hardship is developing. (Smith, 2003, p. 50).

B. THERAPIST DUTIES VS. PATIENT RESPONSIBILITIES ABOUT BEGINNINGS AND ENDINGS

Therapist duties about termination were discussed in Part II above, but the patient’s responsibilities should not be ignored (Fisher, 2011b; Younggren, 2011).

Duty, in the case of a psychotherapeutic relationship, is actually bilateral in nature. Bilateral means not only that the psychologist has duties to the patients but patients also have duties to the psychologist. Although the duty of care falls upon the shoulders of the psychotherapist, patients share the responsibility for the maintenance of the relationship. That is, they have duties and responsibilities, to include contractual obligations, to the psychotherapist. These contractual obligations are usually set forth in the comprehensive informed consent forms that are commonly utilized in professional practices today. These forms outline what the psychotherapist is willing to provide to the patient, the rules for the provision of those services and the patient’s obligations as part of the treatment dyad. (Younggren, 2011, p. 161

Intake is the appropriate time for a psychotherapist to introduce discussion of the patient responsibilities that Younggren describes:

Patients also have a duty of compliance with treatment if they expect to get better and to have their psychotherapist remain in a relationship with them. This is because in psychotherapy the psychotherapist becomes a “fiduciary” in the treatment relationship. This type of fiduciary relationship is not simply a financial relationship but is actually much broader in both duty and obligation. It is a special type of relationship that requires that the patient have confidence and trust in the recommendations that are being made by the psychotherapist (Simon & Shuman, 2007). That is not to say that they have to agree with every suggestion the psychotherapist makes but they, at a minimum, have to see value in cooperating with at least some of what is being offered. This begins with regularly attending treatment sessions. A psychotherapist’s duty to treat patients is significantly reduced when they voluntarily fail to attend treatment sessions in a consistent fashion. Simply put, this lack of compliance on the part of patients is a violation of their responsibilities to the treatment alliance (Younggren et al., 2011, pp. 161-162, emphasis added).

Figure 5 THERAPIST’S DUTIES VS. PATIENT’S RESPONSIBILITIES ABOUT BEGINNINGS AND ENDINGSS   I.  Beginning the Therapy Relationship Therapist’s Duty to Provide Certain Information at Intake (Informed Consent Interview) Confidentiality and its limits Reimbursement expectations Potential duration of therapy Therapist’s availability Patient’s Responsibilities Potential reasons for termination (including those created by patient behavior) Others’ involvement (agency involvement, family collaterals, etc.) Patient’s Responsibilities as Relationship Begins Consent to accept therapist’s policies as described Participation in goal-setting II. Continuing the Therapy Relationship Therapist’s Duties Ongoing Providing clinical services competently, and appropriate to problem Being available in emergencies or providing alternate plan Re-opening issues discussed in informed consent interview, as appropriate Patient’s Responsibilities Ongoing Abiding by initial agreements re. policies, payment, behavior Attending scheduled therapy sessions Participating in therapy process   III. Ending the Therapy Relationship Therapist’s Duties About Endings Discuss termination throughout treatment, as appropriate Plan sessions for processing termination issues before ending, if possible Clinically, be open to processing patient’s disappointments or dissatisfactions End relationship; clarify whether or not door remains open for returning Patients’ Responsibilities Related to Endings Voicing any dissatisfaction with therapy or desire to terminate Participating in termination process, including processing issues raised

C. PLANNING THE TERMINATION PROCESS FROM THE BEGINNING

Zur, in reviewing how professional codes of ethics deal with the topic of termination, summarized as follows:

It is clear that each profession regards the informed consent process as essential for addressing termination and abandonment issues from the outset. Each mental health clinician must inform clients/patients how to contact him or her in between sessions should an emergency or crisis arise, each must make appropriate arrangements for coverage by a competent professional during periods of absence, and each must address the termination process as an essential phase of treatment.  (Zur, 2017, no pagination; emphasis added)

Vasquez, Bingham, and Barnett (2008) provide recommendations about the termination process that can help clinicians meet ethical and clinical standards. Some of these are listed in abbreviated form below.  Note the extent to which the preparation for termination begins from the very beginning of the relationship:

1. Provide complete description of therapeutic process at intake, obtain patient’s consent for this process, and provide reminders throughout treatment.
2. Ensure that psychotherapist and patient collaboratively agree on goals for therapy and the ending of therapy.
3. Provide periodic progress updates that include discussions of termination and provide pre-termination counseling.
4. Consider developing (and updating) your professional will in the event of unexpected terminations created by your death or disability.
5. Help clients develop health and referral plans for post-termination life.
6. Make the topic of termination part of your regular continuing education or professional development.
7. Monitor your clinical effectiveness and personal distress, since therapists who self-monitor and practice effective self-care are less likely to have inappropriate terminations or clients who feel abandoned.

(adapted from Vasquez, Bingham & Barnett, 2008, pp. 661-662)

As suggested by Younggren and Gottlieb (2008), talking about termination during the initial informed consent conversation may be the most important thing one can do to reduce the likelihood of later difficulties with closure.  Written intake materials can even provide information about when the psychotherapist might initiate the termination, such as “when feasibility or quality of service is compromised; services are not benefitting or harming the client; or when client conduct is inconsistent with the safety or integrity of the work” (Davis & Younggren, 2009, p. 576). Davis (2008) even provides sample paragraphs that psychotherapists can use to describe both their termination policy and patient responsibilities.

The author suggests the following model for the delivery of psychotherapy services as a way of integrating termination into the process from the beginning:

 

Figure 6 A Model for Integrating Termination into the Psychotherapy Process First Contact When scheduling an initial meeting, the prospective patient is informed that this will be an exploratory meeting, during which the therapist will be hearing about the presenting problem and deciding whether s/he can possibly be helpful, while the patient will be deciding whether to choose this person as his/her therapist. (Note that the decision has not yet been made about whether the therapist will decide to begin this relationship, or whether the prospective patient will decide to choose this therapist.  Framing it as “exploratory” will prevent the assumption that this decision has already been made.) Stage 1:  Obtaining Informed Consent & Beginning Clinical Evaluation The therapist is in an interview posture, providing information and obtaining consent to proceed with a clinical evaluation.  This stage may involve several sessions, by the end of which time there will be a mutual decision about whether this will be a therapy relationship.(a) providing information: Informing prospective patient about limits of confidentiality;  the nature and limitations of therapy; fees and third-party payment; etc.; inviting and responding to patient questions.(b) obtaining informed patient’s consent to proceed with evaluation(c) gathering information: Obtaining and weighing clinical and developmental history(d) evaluating prospective patient as a candidate for receiving psychotherapy services.(d) orally, or in the written informed-consent documents, there will be discussion of termination, including review of circumstances when that might occur. (See Davis, 2008.)Stage 1 ends when a mutual decision has been made about whether psychotherapy will begin.If yes, the relationship proceeds to Stage 2; if no, therapist provides referrals for services elsewhere, as appropriate.  Stage 2:  Transition from Intake to Formal Intervention This stage will vary depending upon the therapist’s theoretical orientation and the nature of the intervention being planned.  The therapist shifts from an interviewing posture to a clinical posture and may share with the patient a working formulation.  An explicit agreement is reached regarding the intended objectives of treatment and the procedure/approach to be followed in attempting to reach these goals. This goal-setting process can be very brief or can be extensive. Depending upon the nature of the planned therapy, the therapist may decide to be explicit in announcing the change in clinical posture and the resulting change in process, as the relationship shifts from evaluation and goal-setting to the formal intervention stage. Stage 3: Intervention & Termination Although the working alliance has been developing throughout previous stages, formal intervention commences with Stage 3. This stage continues until the relationship ends.  Termination will have been on the table from the beginning, and during this stage the psychotherapist should include that perspective throughout, as clinically appropriate.The formal ending process and providing of appropriate pre-termination recommendations will be the final parts of this stage.

 

Finally, we must count on clinical training programs to be alert to issues related to both informed consent and termination.  Classroom and supervision experiences can monitor trainees’ understandings about how beginnings can affect endings, and can foster trainees’ competence about both beginnings and endings.  For practicing clinicians, peer consultation groups can provide support for providing a clear initial informed consent process that not only affects how the relationship begins, but can directly affect how it ends.

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ADDENDUM:

RESOURCES WHEN CLOSING A PSYCHOTHERAPY PRACTICE

Most general ethics texts include chapters on this topic.  Below is a sample of other available resources.  (Complete citations are in the reference section at the end of the course.)

APA Practice Organization, Corporate Relations and Business Strategy Staff (2005, March 15). “Checklist for Closing Your Practice.”

APA Practice Organization, Legal & Regulatory Affairs Staff (2015, Feb. 26), “Handling Patient Record Retention and Access When Leaving a Practice.”

Barnett, J.E., Zimmerman, J. & Walfish, S. (2014), “The Ethics of Private Practice.” [see final chapter, “Leaving a Practice.”]

Holloway, J.D. (2003a). “Professional Will: A Responsible Thing to Do”

Holloway, J.D. (2003b). “Shutting Down a Practice.”

Koocher, G.P. (2003).  “Ethical and Legal Issues in Professional Practice Transitions.”

McGurk, W.S. & Advisory Committee on Colleague Assistance (2005, Nov. 8).  “Retirement:  Making a Successful Transition.”

Thomas, J.T. (2015, March).  “Closing a Practice: Practical, Ethical & Clinical Dimensions”

Wiley, M.O. & Spayd, C.S. (2014, June). “Closing a Professional Practice: Clinical, Ethical, and Practical Considerations.”

Copyright © Center for Ethical Practice (2020)

 

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The Center for Ethical Practice is approved by the American Psychological  Center for Ethical Practice is approved by the American Psychological Association (APA) to sponsor continuing education for psychologists. The Center maintains responsibility for this program and its content.

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The Center for Ethical Practice has been approved by National Board for Certified Counselors (NBCC) as an Approved Continuing Education Provider (ACEP No. 6768). The Center is solely responsible for all aspects of the programs. Programs that do not qualify for NBCC credit are clearly identified.

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The Center for Ethical Practice (provider #1287), is approved as an ACE provider to offer social work continuing education by the Association of Social Work Boards (ASWB) Approved Continuing Education (ACE) program. Regulatory boards are the final authority on courses accepted for continuing education credit. ACE provider approval period: 3/21/2021-3/21/2024. Social workers completing this course receive 4 ethics continuing education credits.

 

 

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