Why “Who is the Client?” Can Be the Wrong Ethical Question
Mary Alice Fisher, Ph.D.
4 CE Credits – 25 test items – $100
This page contains learning objectives, course outline and complete text for this CE course. You can read the course online, print the course or save it to your computer.
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Once you submit the online test, it will be automatically graded. You may take the test up to 3 times in order to pass (80% correct out of 25 questions). Once you pass, you will be required to complete an evaluation form, after which you will be able to immediately download a certificate of CE credits.
This is a beginning to intermediate course. After completing this course, you should be able to:
- Describe how the singular question, “Who is the client,” can be useful for clinical, reimbursement, or legal purposes.
- Explain why “Who is the client?” may not be helpful as an ethical question.
- Describe how ethical responsibilities might differ in individual vs. multi-client cases.
- Explain why it is ethically important to clarify your responsibilities to all parties in a case.
INTRODUCTION. WHY MIGHT WE ASK THE QUESTION?
A. Historical Perspective
B. When Might We Ask The Question?
1. Asking “Who is the Client?” as a Clinical Question
2. Asking “Who is the Client?” as a Reimbursement Question
3. Asking “Who is the Client?” in Legal Contexts
WHO IS THE CLIENT?
A. An Argument for NOT Asking This Singular Question as an Ethical Question
B. Ethical Pitfalls of a Singular Question & Advantages of a Plural Question
II. NEW ETHICAL QUESTION: “WHAT ARE MY ETHICAL RESPONSIBILITIES TO EACH PARTY IN THIS CASE?”
A. Ethical Advantages of the Plural Question in Clinical Practice
B. Ethical Advantages of the Plural Question in Training, Supervision, and Continuing Education
C. Ethical Advantages of the Plural Question in Clinical Consultation
D. Ethical Advantages of the Plural Question in Organizational Consultation
E. Ethical Advantages of the Plural Question in Agency & Educational Settings
F. Ethical Advantages of the Plural Question in Court-Related Cases
G. Ethical Advantages of the Plural Question in Coaching Relationships
III. DO THIRD-PARTY CONTRACTS AFFECT “CLIENT” STATUS?
A. Managed Care Contracts
B. Group Practice and Employment Contracts
C. Contracts for Providing Specific Clinical Services
IV. CASE EXAMPLES: USING THE PLURAL QUESTION IN INFORMED CONSENT CONVERSATION
A. Adult Therapy in a Case Involving Managed Care
B. Adolescent Therapy Case in an Agency Setting
C. Adult Therapy Case in a Group Practice Setting
D. Child Case in School Setting
E. Third-Party Referral Case
F. Court-Involved Case
G. Organizational Consultation Case
ADDENDUM: Adolescent Consent Form
“Who is the client?” The question is familiar to mental health professionals. Koocher (2007) believes that client identification issues are among the ethical challenges facing 21st century psychologists. The question has been asked for years, both in professional ethics texts and by practitioners themselves. The underlying premise of this course is that whether or not the “Who is the client” question is helpful, and whether or not it creates ethical complications, will depend upon the context in which it is asked and the way in which the case has been conceptualized.
In this introductory section, we will look at the history of the question and will consider how it has sometimes been useful as a clinical, reimbursement, or legal question. Then, in the main body of the course, we will consider why the question may not be helpful — and may actually create unnecessary dilemmas — when posed as an ethical question.
A. Historical Perspective
The issue of client identification is not new. Monahan addressed it in 1980 when he made Who Is the Client? the title of a classic monograph about the dilemmas psychologists faced when working in the criminal justice system. His observations are applicable to providers of any mental health profession, regardless of the context in which they might work: “What psychology appears to lack at the present time is an effective way to differentiate obligations owed to organizational as opposed to individual clients” (Monahan, 1980, p. 2).
In 1985, Keith-Spiegel and Koocher used “Who is the client” as a section title in the first edition of their ethics text. They broadened the issue by noting that mental health professionals not only had potential conflicts of interest, but also had plural ethical obligations:
“Many employment situations have varying categories of clients and distinct client need hierarchies. It is critical that the psychologist carefully consider and conceptualize these situations, since the needs of the different components may often compete or be mutually exclusive. For example, a psychologist could be requested to provide direct services for a person, while they are employed by an organization that is a government branch. In those circumstances, the psychologist might owe professional duties to all three entities (i.e., the individual client, the specific agency or organization, and government or society as a whole), although the specifics and clarify of the lines of obligation will obviously have great potential variability” (Keith-Spiegel & Koocher, 1985, p. 320, emphasis added).
Meanwhile, the issue was also being raised in school psychology literature, in a manner that reflected some of the conflicting opinions:
Ysseldyke (1982) acknowledged that that there was “the need to specify who the client is (student, parent, school)” (p. 551). Some argued that the child was the client (Hyman, 1983); some argued that the parents were the client, within which context the school psychologist could advocate for the child (Pantaleno, 1983; Trachtman, 1981). Some refused to name a single client, emphasizing instead that school psychologists have obligations to everyone affected by their services (Kicklighter, 1983). Segal and Watzlawick (1986) suggested that in some cases, the most concerned person, or the person most affected by the problem, should be considered to be the client (or at least the most promising “customer” for a potential intervention; p. 61). Observing the lack of consensus on the “clientage issue,” Stewart (1986) suggested that “one reason the client question persists may be that to the current time virtually no empirical data have been gathered on factors relating to the determination of client” (p. 296). No such research appeared. (Fisher, 2014, p. 185)
Meanwhile, articles addressing the “Who is the client?” question appeared in many other contexts, including literature about child therapy (Kendall & Morris, 1991); couple therapy (Schröder, 1991), multigenerational therapy (Duffy, 1986); and clinical consultation (Kramer, Kleindorfer, & Colarelli, 1992).
There have long been questions about client identification in industrial and organizational interventions. (See Kramer, Kleindorfer, & Colarelli, 1992; and Kramer, Kleindorfer & Colarelli-Beatty, 1994.) However, Hubbell (2004) suggests that articles in the organizational development literature continue to “either provide conflicting views on this point or ignore the question altogether” (p. 399).
The literature on this topic falls into three categories. Some authors do not explicitly address the topic or if they do address the question, do not answer it. Still another group of writers indicate that OD [organizational development] practitioners are sometimes viewed as being associated with management – since management typically pay their fees. This is a point of view that these authors generally try to refute. Another segment of the literature states, quite pointedly, what has become the fairly conventional view, that the OD practitioner should consider the entire organization as the client. (Hubbel, 2004, p. 400)
Finally, for psychologists who practice in the field of forensic psychology, the official answer to the “Who is the client?” question recently changed. The previous APA forensic guidelines, “Specialty Guidelines for Forensic Psychologists” (APA, 1991), used the word client only when referring to the person being evaluated. However, in the new guidelines for forensic psychologists (APA, 2013), the definition of client is used to mean only “the attorney, law firm, court, agency, entity, party, or other person who has retained, and who has a contractual relationship with, the forensic practitioner to provide services” (p. 20). Throughout these current APA forensic guidelines, the word client carries only this meaning, whereas the person being evaluated is described simply as the “examinee.”
Note that in many articles, books, and professional guidelines, the “Who is the client” question is treated as if it required a singular answer. In the next section, we will consider clinical, reimbursement, and legal contexts in which the singular answer might be helpful. However, in the main portion of the course, we discuss the frequent need for a different, plural answer when clarifying the ethical issues.
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B. When Might We Ask the Question?
1. Asking “Who is the client?” as a Clinical Question: Psychotherapists sometimes ask this question when developing a treatment plan. The question evokes a singular answer, so asking it as a clinical question can sometimes help identify which individual will be considered “the client” in the sense of being the “primary patient” — the person or entity that will be the focus of the clinical intervention.
Sometimes psychotherapists identify an individual as “the client,” even if others also participate in psychotherapy sessions or other clinical interventions. For example, a spouse, adult child, parent, guardian, or friend can be involved as “collaterals” to an individual’s treatment. When possible, it is important to identify these collateral roles early, since the initial informed consent interview must clarify the differing relationship the therapist will have with the various participants, as well as the differing rights of the parties (See sample collateral consent form from The Trust [formerly the American Psychological Association Insurance Trust], 2006). If a collateral enters the picture later during treatment, it is important to pause and conduct an informed consent conversation when they enter. An informed consent conversation with collaterals in a psychotherapy case might include the following information about the differential confidentiality rights: “The patient holds the primary right to confidentiality, so I will require his/her consent before sharing information with you outside the session(s) in which you are present; and I will disclose no information to you when the patient is not present, unless the patient has given explicit consent. In contrast, I do not promise you that same level of confidentiality; I reserve the right to share with the patient any information you provide to me.” (See Center for Ethical Practice, 2013, for confidentiality responsibilities in cases involving collateral participants, as well as a link to the Trust’s Collateral Contract, and quotations from it.)
Sometimes systems therapists will answer the “Who is the client?” question in the singular by identifying the couple or family system as “the client” if the dyad or the entire family unit will be the focus of the clinical intervention. In fact, the ethics code for marriage and family therapists stipulates that “the client in a therapeutic relationship may be more than one person” (AAMFT, 2015, Standard 2). Unlike the therapist’s differential responsibilities in individual cases that involve “collaterals” who are not patients, the therapist’s responsibilities in a couple or family therapy case may be exactly the same with each adult party involved. However, the therapist’s relationship with minor family members may need to be different, since there are some matters that can be clinically inappropriate to share with children; and the confidentiality promises to minors may need to be different, since certain information about them should be shared with their parents. In multiple-client cases, the rights and responsibilities of all parties can be identified and clarified at the outset, regardless of their status in the case.
As discussed in later sections, in clinical cases that arise from third party referrals, the question “Who is the client?” is sometimes used when trying to determine whether the “client” should be considered to be (a) the person who will be receiving the services or (b) the person or entity who made the referral and/or will be paying for the services and who may also expect to receive information from the provider of services; or (c) a person or entity who will receive collateral consultation services related to the case (e.g., parent(s) of a minor); or (d) some other third party. (See below, “Do Third-Party Contracts Affect “Client” Status?”)
It is important to remember that using this singular question to clarify clinical responsibilities must not obscure the fact that mental health professionals have ethical responsibilities to all the parties in the case, regardless of how they are named.
2. Asking “Who is the client?” as a Reimbursement Question: Third party payers often require that a single individual be named as the “identified patient” for reimbursement purposes, even if the case is clinically conceptualized as a couple or family case. For example, it may be necessary in a couple therapy case to ask, “Who is the client?” as a reimbursement question and accept its singular answer, even if this would be the wrong clinical answer (Fisher, 2012). In this reimbursement context, asking the question, “Who is the client?” is simply a way of seeking a singular answer to the question, “In whose name should I file a claim for financial reimbursement for this clinical work?”
When asked as a reimbursement question, “Who is the client?” ordinarily requires a singular answer to meet third-party payer requirements; and that answer may be different from the answer obtained when the question is asked from a clinical, legal, or ethical perspective. . . Ethically, what is important to remember is that for the person who is to be billed as the client, the psychologist is the only possible source of information about what will be sent to the third-party payer. For disclosures to reimbursement entities, the informed consent process therefore requires (a) designating the person under whose name the services will be billed; (b) informing that person about the nature of the information to be disclosed and the potential implications of disclosing it; and then (c) seeking explicit consent to make the disclosure. Once fully informed, the person can make a voluntary decision about whether to give consent for the planned disclosure or whether instead to give informed refusal. (Fisher, 2009, pp. 4-5)
However, the answer to this reimbursement question can also raise clinical, ethical or legal issues. Clinically, it may not be appropriate for the singular reimbursement answer to affect how the case will be clinically structured for intervention purposes, especially in multiple-party cases. Legally, the answer to the reimbursement question can have implications, since the person in whose name the case is billed may be considered “the client” for legal purposes when determining who has a right to obtain access to (or to control disclosure of) the treatment records or other confidential information in the case. Ethically, obtaining the reimbursement answer must involve discussion of its implications with the person who will be named. In other words, before giving consent to be named as “the client” for reimbursement purposes, the designated party has a right to be informed about the confidentiality risks and long-term financial complications potentially involved in being named in that role.
When clients request that their information be shared with an insurance company for reimbursement, psychologists can inform clients that information on insurance forms usually does not stop at the desk of the claims manager. In fact, the information likely is further shared with national data banks where the information can be accessed by other insurance companies when the client elects to purchase another insurance product or a large home mortgage. Psychologists can play a helpful role in teaching clients about the risks of sharing their health information, and this information should be shared at the beginning of service. (VandeCreek, 2008, p. 373)
This informed consent discussion can be renewed at the time of each disclosure to the third party payer (Fisher, 2008). Acuff at al. (1999) long ago suggested that it should be the “usual rule of thumb” to discuss each treatment plan at the time of transmission with the client in whose name it is being sent (p. 570, emphasis added).
Finally, in a multi-client case, it is important to clarify in advance whether the third party payer is willing to reimburse for the services being provided. For example, it would be necessary to verify in advance with the third party payer that in a multi-client case, such as a couple or family case, billing under a single name is allowed, and will not be considered fraudulent billing. (From a risk-management perspective, it can be important to document the name of the third-party supervisor from whom you received the information.)
3. Asking “Who is the client?” in Legal Contexts: [Also see the discussion below in Section II-A regarding clinical practice in forensic cases.]
The singular question is sometimes asked in legal contexts, especially in multiple-client cases. For example, as noted above, the question is sometimes used in the process of ascertaining who has a legal right to obtain copies of treatment records, reports, or other confidential information from the case if one or more of the parties is involved in a court case. As described below, such cases sometimes involve more than one “client,” making it inappropriate to seek a singular answer.
Court-involved custody cases are sometimes called “hybrid” cases if the mental health professional has dual loyalties, with duties and responsibilities to both the patient(s) and to the court. For example, clinicians who provide court-involved therapy (CIT) hold two potentially-conflicting roles by providing clinical services to a child or family and providing expert testimony about them for the court. They may be called “forensically informed psychotherapists” (Knapp & Vandecreek, 2012, p. 160) or “treating experts” (Greenberg & Gould, 2001, p. 473) to distinguish them from neutral forensic experts. In their risk-management text, Bennett et al. (2006) emphasize the risks: “The hybrid role of ‘treating expert’ presents unique ethical and legal demands that require consideration of your roles and obligations” (p. 141).
The fact that a case is “court-involved” does not mean that ethical responsibilities are different. For example, not only would the same informed consent responsibilities apply, but it is suggested that these cases create “enhanced” informed-consent responsibilities (Dwyer, 2012, p. 108). Before beginning such a “hybrid” case, the therapist is ethically required to inform all involved parties about their expectation of disclosing information and opinions to the court, so that all parties who give consent to receive the clinical services will understand in advance that the clinician is also assisting the court and that this will limit their confidentiality. (See Association of Family and Conciliation Courts (AFCC ), 2010; Fidnick & Deutsch, 2012; Fidnick, Koch, Greenberg & Sullivan, 2011.)
For example, in court-ordered parenting coordination (PC), the mental health professional provides clinical consultation as well as legal involvement in the form of expert testimony or written reports to the court. As in CIT, all parties must be informed in advance of the potentially-conflicting loyalties. Guidelines for Parent Coordination cases are provided by both APA (2012) and the AFCC (2005), and both include requirements about informing potential parent consultees about the absence of confidentiality.
According to the APA Guidelines for Parent Coordination (2012), this legally-involved role must be distinguished from other professional roles: “Parenting coordination is generally not a confidential process. The PCs [parenting coordinators] may be authorized to speak with other professionals involved with the family, and the court may require documentation regarding parenting coordination interventions and outcomes” (p. 64). All parties must be “adequately informed about all aspects of the PC role per court order or private consent agreement . . . including the limits of confidentiality’ (p. 68). The AFCC Guidelines (2005) similarly specify that “parenting coordination is not a confidential process . . . All such confidentiality protections need to be stripped away. . . In order for the PC to be empowered to operate freely and effectively in the role of expeditious dispute resolver, appropriate provisions need to be included in the written agreement and/or court order of appointment for the effective waiver of all privileges and rules of evidence or professional conduct regarding confidentiality which may be waived” (p. 7).
In court-ordered therapy cases, dual relationship issues can overlap with the confusions created by the singular question, “Who is the client?” Clinicians in court-related roles can reach more clarity by asking instead, “Which hat(s) am I wearing?” and “In whose behalf?” Sometimes the answer to the latter question may seem to be singular, but in fact court-ordered roles always involve dealing with two “clients” simultaneously.
For example, a court-ordered therapy case is entered with loyalties and responsibilities to both the court and to the patient, because these two hats are donned simultaneously: One hat creates contractual responsibilities to the court (because it ordered the therapy and often expects a report), and the other hat creates ethical informed-consent responsibilities and other clinical responsibilities to the therapy patient (whose rights are protected by the psychologist’s Ethics Code). This combination of hats can become ethically complicated and require advance clarification of the expectations on the part of both the court and the therapy patient.
Finally, mental health professionals sometimes have legal obligations that supersede the rights of the primary client. For example, when the state imposes duties to report certain types of behavior, as with child abuse reporting laws, those laws undermine the confidentiality rights of even the primary client.
The question, “Who is my client?” (Fisher, 2009), is best replaced by “To whom do I owe a duty, and which duties have priority?” A clinician’s legal duties to protect a child, elder, or dependent adult from harm or a person identified as a potential victim of serious physical violence supersede any duty to the patient alone. (Which types of harm invoke which duties are specified by state laws.) Duties to protect are performed along with a duty to maintain confidentiality such that only the minimal information necessary for the endangered person’s protection is disclosed. (Moffett, 2014, p.231)
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Within each of the above contexts, whenever mental health professionals ask the “Who is the client?” question as a clinical, reimbursement, or legal question, they must also ask an additional different ethical question to clarify their professional responsibilities. This course is designed to help mental health professionals understand why using the singular question can be misleading when raised as an ethical question, and why it is often important to seek a plural answer when clarifying ethical responsibilities.
I. Who Is The Client?
A. An Argument for NOT Asking This as An Ethical Question
Regardless of the clinical, reimbursement, or legal context in which one might ask the “Who is the client?” question, client clarification has important ethical implications. In this context, the question is a way of asking “To whom do I have ethical responsibilities?”
The problem with asking “Who is the client?” as an ethical question is that the question evokes a singular answer, whereas the correct ethical answer is often plural. That is why asking this singular question can lead us astray, even in individual therapy cases, but especially in multiple-party cases.
The familiar “Who is the client?” question can be misleading in multiple-party cases, not only because the word “client” can be ambiguous, but because the question implies the need to give a singular answer. . . Some clinical cases involve multiple patients, as in couple, family, or group therapy. Other cases [including child therapy cases] may involve non-patient parties who serve as collateral participants in someone else’s therapy. Whenever therapists wear multiple hats in the same clinical case, it is important to clarify in advance exactly which hat they will be wearing with whom, because therapists sometimes play a different role with each party in the case. It is also essential that the therapist be clear about each party’s confidentiality rights, since these can differ across roles, with the result that the therapist’s ethical obligations about confidentiality may differ from one party to another. (Fisher, 2013, p. 151)
Although some ethics texts still use the singular question, they nevertheless contain discussion of the client-identification issue as if the question needed a plural answer. For example, although the third edition of their ethics text still includes a section entitled “Who is the Client?,” Koocher and Keith-Spiegel emphasize the plural responsibilities to all parties involved in a case: “The professional has an obligation to clarify the ethical duties due each party, to inform all concerned about the ethical constraints, if any, and to take any steps necessary to ensure appropriate respect for the rights of the person at the bottom of the client hierarchy” (Koocher & Keith-Speigel, 2008, p. 487).
Similarly, writing for school psychologists in 2007, Fagan & Wise also embraced the concept of multiple clients, even though they continued to use the singular term “client.”
The question of who the school psychologist’s client is has no simple answer. The term client may refer to the person in need of professional help, the person who employs a professional, the person paying for the help, the person who is under the protection of another, the person receiving services of a professional, or the person benefiting from such services. Consequently, in the work of the school psychologist, the client may include one or more of the following: child, parent or parents, teacher, principal, special education director, school superintendent, school board, or an agency administrator or governing board. (pp. 98-99, emphasis added)
Further complicating the issue, there are sometimes “hidden clients” who must be considered. Fisher reminded school psychologists that these can include “grandparents, step-parents, siblings, or other members of the child’s extended family system, as well as other professionals outside the school system who have relationships with the child or whose actions have an impact on the child” (Fisher, 2014, p. 185). “Each in turn may be considered to be the client or, at least, a member of the client system” (White & Loos, 1996, p. 161).
In other words, mental health professionals have ethical responsibilities that go beyond duties to a single client, and this is stipulated in their professional Ethics Codes. Using school psychologists as an example, Fisher provided a chart that lists their ethical responsibilities not only to their student clients, but also to parents, administrators, teachers, and colleagues, as specifically stipulated in their Ethics Code (NASP, 2010). (See chart online in Fisher, 2014, Table 1, pp. 198-200.) Such stipulations about plural responsibilities exist in all Ethics Codes for mental health professionals. (See examples below.)
B. Ethical Pitfalls of the Singular Perspective & Advantages of the Plural Perspective
In decisions about client identification, informed consent becomes an important issue. Informed consent responsibilities do not stop with informing the “primary” client about such things as the limits of confidentiality. As indicated above, and as further discussed below, one disadvantage of the singular question is that it obscures the fact that mental health professionals often have informed consent responsibilities to all the parties involved in a case, regardless of the setting or the type of service being provided.
For example, in cases involving more than one party, these are some of the initial informed consent responsibilities required by various professional Ethics Codes:
- Social Workers are ethically required to inform “clients and other interested parties” about the potential limits of confidentiality; and in cases involving related individuals must “clarity 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” (Ethical Standards 1.06(d) and 1.07(d)). [NASW Code of Ethics, 2008]
- Counselors have informed consent responsibilities to parents and legal guardians: “Counselors inform parents and legal guardians about the role of counselors and the confidential nature of the counseling relationship, consistent with current legal and custodial arrangements” (Ethical Standard B.5.b). When providing counseling services to two or more persons who have a relationship, “the counselor clarifies at the outset which person or persons are clients and the nature of the relationships the counselor will have with each involved person” (Ethical Standard A.8). Finally, in couple and family counseling, counselors “clearly define who is considered “the client” 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” (Ethical Standard B.4.b). [ACA Code of Ethics, 2014]
- Marriage and Family Therapists, when obtaining informed consent for disclosure of confidential information, “do not disclose information outside the treatment context without a written authorization from each individual competent to execute a waiver. In the context of couple, family, or group treatment, the therapist may not reveal any individual’s confidences to others in the client unit without the prior written permission of that individual.” (Ethical Standard 2.2). [AAMFT Code of Ethics, 2015]
- Psychologists who provide services at the request of a third party “attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes the role of the psychologist . . . an identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality” (Ethical Standard 3.07). Also, when providing services to several persons who have a relationship, psychologists “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 psychologists’ role and the probably uses of the services provided or the information obtained” (Ethical Standard 10.02). [APA Code of Ethics, 2017]
Only by entering the case with an understanding of such ethical responsibilities can a mental health professional be prepared to inform all prospective parties in advance about the nature of the intended relationships, and thus prepared to explain the limits of confidentiality carefully, since they may differ for each party. (See Center for Ethical Practice, 2014, for a chart listing informed consent standards from the Ethics Codes for Counselors, Psychologists, and Social Workers.)
Furthermore, roles and relationships can change during the course of a clinical intervention, and this can sometimes affect the rules about confidentiality. For this reason, mental health professionals are ethically required to re-open the informed consent discussion as needed, especially the discussion of limits of confidentiality and how those apply to various parties in the case.
Professional ethics codes reflect the ethical importance of reopening the conversation about potential limits of confidentiality if changes in circumstances signal a change in risk of disclosure:
- Counselors must discuss limitations of confidentiality “at initiation and throughout the counseling process (ACA Ethical Standard B.1.d.
- Marriage and family therapists are reminded that “circumstances may necessitate repeated disclosures “about the potential limits of confidentiality.” (AAMFT Ethical Standard 2.1).
- Psychologists must initiate a new conversation about confidentiality “as new circumstances may warrant.” (APA Ethical Standard 4.02.b). )
- Social workers must reopen the conversation “as needed and throughout the course of the relationship.” (NASW Ethical Standard 1.07.d).
The risk-management literature contains similar recommendations: “The informed consent agreement will need to be reviewed and updated any time there are substantive changes to the treatment being offered” (Barnett, 2010, p. 79). This would include discussion of changes in “client” designations. For example, if the case conceptualization changes from one of individual therapy to one of conjoint family therapy meetings, this might change the therapist’s relationship to the parties and requires an informed consent discussion of the change and how it might affect such things as fees or the rules about confidentiality.
For counselors, this conversation is explicitly required by the 2014 ACA Ethics Code in Ethical Standard A.6.d, “Role Changes in the Professional Relationship”:
When counselors change a role from the original or most recent contracted relationship, they obtain informed consent from the client and explain the client’s right to refuse services related to the change. Examples of role changes include, but are not limited to (1) changing from individual to relationship or family counseling, or vice versa; (2) changing from an evaluative role to a therapeutic role, or vice versa; and (3) changing from a counselor to a mediator role, or vice versa.
Clients must be fully informed of any anticipated consequences (e.g., financial, legal, personal, therapeutic) of counselor role changes.
Regrettably, asking “Who is the client?” at the beginning of the case and maintaining a singular answer throughout could distract clinicians from these ongoing ethical responsibilities about informed consent as the case progresses.
In organizational consultation cases, mental health professionals have traditionally been advised in the literature to name as “the client” the organization or agency that has contracted for the consultation and is responsible for paying for the consultant’s services.
In organizational consulting relationships, a singular answer is usually presumed (Kramer, Kleindorfer, & Colarelli, 1992), even though “there are no specific guidelines for determining who the client is or should be in complex consulting situations” (Kramer,Kleindorfer, & Colarelli-Beatty, 1994, p. 12). As a result, psychologists who consult to organizations or agencies give very differing answers to the “Who is the client?” question when faced with sample case scenarios. The wide-ranging rationales for their choice of “most important client” include “who holds organizational authority, who is responsible to solve the problem, who will be impacted by the solution, and who is the initial contact person” (Kramer et al., 1994, p. 11). [as quoted in Fisher, 2009, p. 4.]
However, as discussed below, ethical pitfalls arise for organizational consultants who interpret this advice to mean that they have ethical responsibilities to only one entity. They clearly will have ethical obligations both to the organization that hires them and to the individual(s) who will receive their services.
II. Choosing a Different Ethical Question: “What Are My Ethical Responsibilities to Each Party In This Case?”
Taking the previous section into consideration, it seems inappropriate for mental health professionals to seek a single-client answer about their ethical responsibilities. For that reason, we have recommended that in all settings, regardless of the services being provided, whenever clarifying their ethical responsibilities they should replace “Who is the client?” with the question, “What are my ethical responsibilities to each party in this case?” (see Fisher, 2009; 2014).
Below, we consider some of the advantages of that plural question.
A. Ethical Advantages of the Plural Question in Clinical Practice: How might adopting a plural question affect the day-to-day work of a mental health professional?
In any type of clinical case, the plural question will facilitate advance preparation in deciding the potential type of relationship the mental health professional might have with each party involved in the case.
Psychotherapists may experience conflicts in our obligations and between competing ethical principles or between multiple individuals. The Ethics Code provides no guidance on how to determine which principle takes priority over another when a conflict between the goals of multiple principles is evident or whose needs are paramount when providing professional services to multiple individuals. Yet, as Fisher (2009) made clear, psychotherapists often must weigh different and competing obligations to multiple individuals (or individuals and agencies or organizations), asking “To whom do I owe which obligations?” and then determining the most appropriate course of action. (Barnett, 2019, p. 432)
Those in private practice settings who are required to adopt their own policies will be more likely to consider in advance their impact on all parties who might be involved in the case. Those who enter employment in an agency setting with the plural question in mind will be more likely to clarify in advance any policies that would affect their relationships with any party, not just with a primary client. For example, regarding the limits of the confidentiality that can be promised, they might clarify with their new employer in advance, “What are the agency’s policies about the types of confidential patient information that must be voluntarily shared with others, even if that is not legally required?” or “What other policies might affect my informed consent conversation about confidentiality?” Only when armed with answers to such questions can they be prepared to conduct an accurate and honest initial informed consent conversation in any type of clinical work.
Asking, “What are my ethical responsibilities to all the parties in this case?” can also be helpful in anticipating — and potentially avoiding — some of the ethical dilemmas that can be created by thinking only in the singular.
The practitioner should not only strive to elucidate the status of each party but also should clarify whether the concerns of each party are clinical-, ethical-, legal-, or reimbursement-related in nature. In this way, the psychologist can generate a framework that promotes ethical decision making. For example, an adult referred by a family member with whom he does not reside introduces different ethical, legal, clinical, and reimbursement-related concerns than an adult referred by a primary care physician with the aim of including staff members in a residential-based behavior change plan. The therapist should take care not to lose sight of the ethical responsibilities to the primary client as he or she navigates the ethical obligations to other involved parties. (Adams & Boyd, 2010, pp. 409-410)
In individual therapy cases, the plural question can be helpful as a reminder to consider the rights of other parties beyond the primary client. For example, it is clinically important for a therapist to consider whether others will need to be involved as “collaterals,” in which case their rights must be clarified in advance (The Trust, 2006). If a child is being seen in individual therapy, there are always other parties who have rights that must be considered. This can include parents, involved agencies (schools, social services, etc.) and other health care providers (pediatricians, prescribing psychiatrists, etc.).
Without the plural perspective, clinicians are less likely to consider in advance which parties might need to be involved in the case; and this leaves them less prepared to clarify expectations, explain the nature of the relationships with each, and be specific about the confidentiality rules that will apply to each, in advance in order to avoid later misunderstandings.
In therapy cases involving minors, although sometimes conceptualized and structured as family cases, are sometimes conceptualized as individual therapy cases with consultation being provided to the parents in separate sessions. In such cases, the singular answer will not be ethically helpful. “Who is your client? Is the adolescent your client? Are the parents your clients? Or, is the family your client? . . . Asking “Who is the client?” oversimplifies things and makes it seem that there is actually a single correct answer to that question” (Barnett, 2010, p. 79).
In fact, in individual psychotherapy cases, one might consider the minor to be the “therapy client” and the parents to be “parent consultation clients.” If only the minor is named as the client, the clinical and ethical duties owed to the parents could be neglected, and the state’s legal rules about their rights can be ignored in the informed consent conversation. Using the plural question is a reminder to also ask, “What are my ethical responsibilities to the parents?”
Often a child or adolescent is seen in individual therapy sessions alone, with the therapist having separate meetings with the parent(s). In such a clinical case, it is important for therapists to clarify the two different roles: When with the child, they are wearing the professional hat of “individual therapist”: but when meeting with the parent(s), they are “the child’s therapist serving as consultant to the parents.” In such cases, it is ethically important to clarify exactly what the confidentiality rules will be in both the therapy relationship and the parent consultation relationship, because they will usually not be the same. Therapists seeing a child patient under this clinical structure must also avoid further multiplying roles (e.g., agreeing to be the marital therapist to the parents or the individual therapist to one or both parents), since that could create conflicts of interest that would be difficult or impossible to resolve. Untangling such multiple roles would become even further complicated if the parents later separated or divorced. (Fisher, 2013, p. 156)
The plural question is also a reminder that your state may have legal rules about the rights of parents of minor clients. The Center for Ethical Practice provides an Adolescent Informed Consent Form (Kraft, 2005), which is designed to be signed by both the adolescent and the parent(s), in order to clarify the confidentiality rules in advance. This would need to be adapted to match the laws in each provider’s state.
In any multi-client therapy case, the plural question avoids the misleading assumption that there must be a single-client answer. In fact, in couple and family cases multiple parties can have equal qualifications for the claim of being named a clinical client (Fisher, 2013). Therapists sometimes refer to the entire multi-client group as “the client.” However, regardless of how handy this can be for purposes of clinical planning, it is not helpful for determining the differential ethical responsibilities toward separate parties. For example, in family therapy cases, minors may not have the same rights as the adults.
Furthermore, when seeking reimbursement, clinical complications can arise if the clinician who chooses a singular reimbursement answer — i.e., names one person in the case as “the client” for third party payment purposes — mistakenly thinks this requires that there must also be a singular clinical answer. Clinicians must remember that, ethically speaking, each adult person in a couple or family case may have the same clinical relationship with the therapist, and the same rights that deserve protection, even though the reimbursement claim is billed to only one party. When seeking an answer about one’s ethical responsibilities in a multi-client case, the plural question avoids that confusion. Finally, as described above, it is essential to clarify with the reimbursement entity that multi-client cases are reimbursable, and that using an individual name when billing for a multi-client case will not be considered fraudulent billing.
In assessment cases, including forensic assessments, the plural question can be a helpful reminder that many individuals may be involved, and that they all have rights that must be protected. For example, collateral interviews in assessment cases must all begin with an informed consent conversation which clarifies with each party how the information being gathered will be used.
Rights of collateral interviewees can be especially important to protect in cases involving forensic assessments. For example, the AFCC “Model Standards of Practice for Child Custody Evaluations (2006) require that in addition to informing the litigants (e.g., the parents petitioning for custody) about things such as fees, procedures, and policies, including the limits of confidentiality (Standard 4.2), evaluators must also protect the informed consent rights of others from whom they collect data: “Child custody evaluators shall take steps to ensure that collaterals know and understand the potential uses of the information that they are providing. Individuals from whom information is sought shall be informed in writing of the manner in which information provided by them will be utilized and reminding them that information provided by them is subject to discovery” (AFCC, 2006, Standard 4.31, “Informed Consent of Collaterals” ).
Similarly, the APA Guidelines for Child Custody Evaluations in Family Law Proceedings (2010) require that psychologists protect the “rights and personal dignity of examinees and other individuals. This process allows persons to determine not only whether they will participate in a child custody evaluation but also whether they will make various disclosures during the course of an examination or other request for information” This would include “persons who provide collateral information (e.g., relatives, teachers, friends, and employers) even when applicable laws do not require informed consent per se.” (APA, 2010, Standard 9, emphasis added).
Often clinical assessments, including forensic assessments, are conducted at the request of third parties. In such cases, there are applicable ethical standards about obligations to all parties. For example, APA Ethical Standard 3.07 requires as follows:
When psychologists agree to provide services to a person or entity at the request of a third party, psychologists attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes the role of the psychologist (e.g., therapist, consultant, diagnostician, or expert witness), an identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality. (APA Ethical Standard 3.07: Third-Party Requests for Services.”)
In addition, in “occupationally-mandated” assessments, mental health professionals have an obligation to explain to examinees their relationship with the hiring agency. The following advice was provided to those conducting “fitness for duty” evaluations in an employment setting.
In the context of an OMPE [occupationally-mandated psychological evaluations], the evaluator generally has a duty to the referral source to provide, a thorough and impartial evaluation as well as a duty to all parties to maintain confidentiality, barring mandated exceptions and within appropriate limits (AAPL [Amer Acad of Psychiatry & Law], 2008; APA, 2007; Fisher, 2009; see also EPPCC [APA], Standards 3.06, 4.01, and 9.01). An impartial evaluation, one that strives to remove the impact of outside influence or conflict, permits the psychologist to move “from data to whatever conclusions are best supported by such data” (Heilbrun et al., 2009, p. 102; see also Guideline 7; EPPCC [APA], Standard 2.01; and SGFP [APA Specialty Guidelines for Forensic Psychologists, 2013], Guidelines 1.02 and 2.07). (Melchert, 2018, no pagination)
In determining ethical obligations to clinical colleagues, the plural question makes it more likely that mental health professionals will remember that they have duties toward all affected parties in a clinical case. This can include colleagues and others who work in the setting and/or who may share involvement in the same clinical cases.
In an article that addressed the use of the “Who is the Client” question in school settings, Fisher used the ethics code for school psychologists (NASP, 2010) to create a chart of their ethical responsibilities toward administrators, colleagues, teachers, and parents, in addition to the ethical responsibilities to the student clients for whom they provided services. (See chart in Fisher, 2014, Table 1, pp. 198-200.)
Other professional ethics codes describe numerous ethical responsibilities toward colleagues, staff, and others. For example, the ethics code for Marriage and Family Therapists stipulates that they must “respect the rights and responsibilities of professional colleagues” (AAMFT, 2015, Principle VI, “Responsibility to the Profession”).
The ethics code for social workers (NASW, 2008) contains a section on “Ethical Responsibilities to Colleagues” which includes numerous responsibilities, including a recently-revised Ethical Standard about respect and a long-standing Ethical Standard about confidentiality:
NASW Ethical Standard 2.01. Respect: (b) Social workers should avoid unwarranted negative criticism of colleagues in communications with clients or with other professionals. Unwarranted negative criticism may include demeaning comments that refer to colleagues’ level of competence or to individuals’ attributes such as race, ethnicity, national origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status, and mental or physical disability.
NASW Ethical Standard 2.02: Confidentiality: Social workers should respect confidential information shared by colleagues in the course of their professional relationships and transactions. Social workers should ensure that such colleagues understand social workers’ obligation to respect confidentiality and any exceptions related to it.
In the newest ethics code for counselors, Section D (“Relationships with Other Professionals”) contains several ethical standards related to interdisciplinary collaboration. For example, Counselors are required to “work to develop and strengthen relationships with colleagues from other disciplines to best serve clients” (ACA, 2014, Ethical Standard D.1.b, “Forming Relationships”). In addition, Ethical Standard D.1.c (Interdisciplinary Teamwork) requires as follows: “Counselors who are members of interdisciplinary teams delivering multifaceted services to clients remain focused on how to best serve clients. They participate in and contribute to decisions that affect the well-being of clients by drawing on the perspectives, values, and experiences of the counseling profession and those of colleagues from other disciplines.”
B. Ethical Advantages of the Plural Question in Training, Supervision & Continuing Education: How might the plural question affect training and supervision? “Forethought is an essential component of ethical practice, and this plural question would help trainees learn the importance of considering everyone’s rights in advance” (Fisher, 2014, p 202). This can be important in helping trainees learn how to prepare for the ethically-all-important informed consent conversation.
First, clinical graduate students would be encouraged to learn the importance of considering, in advance of entering each case, which parties might ultimately be involved. “This gives them the opportunity to problem-solve in advance about their potentially conflicting loyalties, in order to be prepared to explain their role and relationship with each party” at the initial informed consent interview, as required in their ethics code (Fisher, 2014, p. 202).
Second, asking the plural question — “What are my ethical responsibilities to each party?” — would help teach the importance of the ethical issue of informed consent. It would increase the likelihood that everyone’s informed consent rights would be protected, since it would alert trainees to the fact that they are required to inform all parties about the services that will be provided and about the nature of their relationship with the clinician, the rules about confidentiality, and other matters required by their own ethics code. (See chart at Center for Ethical Practice, 2014.) They can also be more aware that as circumstances change, or when any new parties enter the case, this informed consent discussion must be revisited.
Third, case vignettes (such as those at the end of this course) could help trainees prepare for the informed consent conversation by practicing with each other their informed consent discussion with each party. The content of that informed consent interview will differ in each case, as will the language level; and the clinician must also consider native language, culture, cognitive capabilities, and other relevant factors so that the information provided may be understood by the individuals being informed. The plural question is helpful for anticipating such needs and for practicing in advance the appropriate vocabulary for informing each involved party.
Clinical supervisors can use the plural question to teach supervisees to plan in advance, in order to consider exactly what rights must be protected for each of the parties that might be involved in the case. If this was not done sufficiently in advance, supervisors can teach supervisees to re-visit the informed consent conversations as needed, to cover areas that were earlier neglected.
In continuing education training, workshop leaders could introduce the broader question and encourage its use by practicing clinicians. Participants could provide case examples from their own settings, to see how that plural question might be helpful in planning their work and in carrying out their ethical responsibilities to all parties. Since the plural question would apply in any clinical case situation and is consistent with the ethics codes of all mental health professions, it can be useful when providing multidisciplinary training. For example, this could include training in medical settings (e.g., Bruns, 2014) and sport neuropsychology settings (e.g., see Bush & Iverson, 2011), , as well as leadership training in law enforcement settings (e.g., Scrivner, Corey, & Greene, 2014; Weiner & Hess, 2014).
Finally, when training non-clinical staff in their own settings, mental health professionals can apply and teach the plural perspective about ethical responsibilities. Training for non-clinical staff can include discussion of the fact that “collaterals”— those individuals (spouses, parents, friends) who participate in services provided to others—do not have the same rights as the primary client, but it is ethically important to inform them of their rights before they consent to participate (Fisher, 2009a). The Center for Ethical Practice also provides an Ethics-Based Training Manual for Non-Clinical Staff. (Fisher, 2018); Request either Virginia version or National version) Online at https://centerforethicalpractice.org/ce-home-study/home-study-manuals-tests/
C. Ethical Advantages of the Plural Question in Clinical Consultation: When obtaining or providing peer consultation in clinical cases, the plural question can allow mental health professionals to begin the consultation relationship by considering the ethical duties owed to each of the parties in the case being presented, as well as the ethical duties owed to each other in the consultation relationship. This would be useful whether in individual consultation sessions or in group consultation meetings.
For example, at the onset of consultation, consultants have an ethical responsibility to clarify with consultees what confidentiality rules will apply in the consultation relationship itself. How much of what is said in consultation will remain confidential? For example, if the consultee describes something that is legally reportable, does that remain confidential or will the consultant make the legally-required report?
In the case being presented for consultation, both “clients” and other participants have certain confidentiality rights, and for all parties these rights can be protected by disclosing no identifiable information during case consultations unless explicit consent has been obtained. This means that, absent patient consent, consultants (including consultation group members) who are providing services to related parties, or who can otherwise identify the unnamed parties in the consultation case being presented, must recues themselves from the discussion of that case (Thomas, 2010).
How does this involve the “Who is the Client?” question? Ethically, according to professional ethics codes, consultants are responsible for assuring that the rights of all parties in the case will be protected, not just the rights of a singular “primary” client. For example, “when consulting with colleagues, Psychologists do not disclose confidential information that reasonably could lead to the identification of a client/patient, research participant, or other person or organization with whom they have a confidential relationship unless they have obtained the prior consent of the person or organization or the disclosure cannot be avoided” (APA Ethical Standard 4.06, “Consultations,” emphasis added.
Counselors have an identically-worded Ethical Standard (B.7.b. “Disclosure of Confidential Information”). Marriage and Family Therapists “when consulting with colleagues or referral sources, do not share confidential information that could reasonably lead to the identification of a client, research participant, supervisee, or other person with whom they have a confidential relationship unless they have obtained prior written consent. (AAMFT Ethical Standard 2.6, “Confidentiality in Consultations,” emphasis added). Clearly, the plural question will be useful in assuring that rights of all parties will be protected.
Often, in clinical cases involving minors as the primary client, the clinician serves as consultant to the parents. In such a case, there are ethical responsibilities to parents, but their rights to confidentiality will differ from the rights of the primary client.
D. Ethical Advantages of the Plural Question in Organizational Consultation: As noted above, organizational consultants were traditionally encouraged to use the singular “Who is the Client?” question, and to answer it with “my client is the organization or entity that hired me” (Kramer, Kleindorfer, and Colarelli, 1992). More recently, organizational consultants are advised to use more sophisticated approaches to clarifying the complexity of relationships in organizational consultations, with an understanding that mental health professionals have a responsibility to respect the informed consent rights of all parties.
As noted by Fuqua, Newman, Simpson, and Choi (2012), “In many of the settings where we have worked, central ethical concepts like informed consent and confidentiality are not thoroughly understood, valued, or applied. Psychologists, then, have a special opportunity to educate and involve clients in addressing these important concepts in their work settings. In principle, these concepts are not seen as barriers to expediency but rather as basic human concerns that promote the development of healthier workplaces” (p. 117).
Here, in order to more clearly specify the various responsibilities, we recommend that organizational consultants avoid the singular “Who is the client?” question and substitute the plural question, “What are my responsibilities to each party?”
Psychologists who provide services to organizations may encounter complications similar to those in third-party referral cases. For example, a psychologist might have a contract with a corporation, specifying a plan for providing leadership consultation to the CEO, in addition to case consultation to several of his managers who have problematic relationships with their supervisees. The psychologist might meet with the CEO, with the managers, with their supervisees, and perhaps with other employees.
Asking “Who is the client?” may lead to the simple answer: “The corporation is my client, because it issued the contract and pays my fee.” But this answer provides the psychologist with no guidance about specific ethical responsibilities in the complex relationships that will be developed with individuals within this corporate system. What are their individual rights? How do they differ? What will happen to the information confided to the psychologist by the CEO? By the managers? By their supervised employees?
It probably will not be appropriate for the psychologist to promise the same level of confidentiality in each of these relationships; so the limits of the confidentiality will need to be defined in advance, explained at the initial informed-consent interview with the CEO, and made clear to each individual at each level of the consultation process. None of this will be adequately clarified in the mind of the consulting psychologist who relies on the “Who is the client?” question and settles for its single answer. (Fisher, 2009, p. 4)
Fuqua, Newman, Simpson, and Choi (2012) suggest that we consider these 11 further questions to more specifically clarify responsibilities to all parties in an organizational consultation case:
1) Who is paying for the services?
2) What roles do the contracting parties play in the organization?
3) What formal and informal authority do the contracting parties hold?
4) How are the contracting parties related to the recipients of the intervention?
5) What procedures will be used to ensure that informed consent is established with all those who will receive direct intervention?
6) What consequences do exist or may come to exist for parties who decline participation?
7) What limits may exist to confidentiality of information produced by the consultation process?
8) What classes of people may be directly or indirectly affected by the intervention who will not be participating in the consultation process?
9) Will the roles and/or structures of the organization create the perception of coercion for any class of participants and, of course, how do we confront the perceived coercion?
10) What kinds of information are required to meet the terms of the contract and who will be expected to provide the information?
11) What roles will the consultant(s) play in managing information resulting from the consultation intervention?” (p. 116)
E. Ethical Advantages of the Plural Question in Agency & Educational Settings: For mental health professionals employed by agencies, institutions, or educational organizations, the single-answer question does not adequately reflect the many parties toward whom one might have ethical responsibilities.
Psychologists who provide services through organizations may encounter conflicting loyalties when the interests of the employing (or contracting) organization conflict with the interests of the party receiving the services. In this regard, no circumstances are more complex than those faced by psychologists who work within the school setting, with differing ethical responsibilities to their employer, to the students who receive their services, to the teachers who elicit their consultation, and to staff colleagues who are members of their team. No single-answer question would adequately clarify the potential conflicts of interest or the complicated confidentiality rules that must be established and explained among those relationships. (Fisher, 2009, p. 4)
As noted in earlier sections, the Ethics Code for school psychologists (NASP, 2010) emphasizes the differential ethical responsibilities to various individuals and groups within the school system setting. That Ethics Code, in its “Definition of Terms,” states that The client is the person or persons with whom the school psychologist establishes a professional relationship for the purpose of providing school psychological services. A school psychologist–client professional relationship is established by an informed agreement with client(s) about the school psychologist’s ethical and other duties to each party.” That statement then provides a footnote to the article in Fisher (2009), but there is now a more recent school-specific article in a school psychology journal (Fisher, 2014). Both emphasize the fact that the single-answer question, “Who if the client?” is not sufficient in such settings.
School psychologists working within or with school districts are reminded to “think plural” (Fisher, 2014, p. 183). That is, services are often being provided for multiple clients and consumers simultaneously: the (1) targeted individual, (2) target individual’s parent(s) or legal guardian(s), (3) classroom staff, (4) school administrator(s), (5) special education director, (6) school superintendent, and/or (7) school board. As a result, the various clients and consumers of a report may require information of varying types and complexity (Farmer, 2016, p. 1021)
Similar complications and conflicting loyalties would arise for mental health professionals who are employed in many other settings. For example, those employed in an Employee Assistance capacity have obligations to the company, organization, or institution that hired them as well as to the people whom they counsel and refer. To call either one “the” client would ignore that fact. Using the plural question serves as a reminder to clarify the obligations to each involved party, to weigh any conflicts that they might create, and to address these at the onset of each relationship.
F. Ethical Advantages of the Plural Question in Court-Related Cases: In some court-involved cases, mental health professionals have guidelines that include specific or implied instructions about how to determine who is “the client” in their cases. In many circumstances, the individual(s) receiving the services are referred to as the “client(s).” (See, for example, guidelines for court-ordered parenting coordination from APA, 2012; and AFCC, 2005.) However, some guidelines for court-related cases name as “the client” the referring entity, rather than the individual(s) receiving the services.
For example, as described in the Introduction (above), Psychologists conducting forensic evaluations are now advised to answer the “Who is the client?” question by naming the person or entity who is contracting for and/or paying for the service (American Psychological Association (APA), 2013). In such cases, however, the evaluator’s ethical responsibilities to the examinee will vary, depending on the answer to the question. For example, if the answer is “my client is the court that ordered this evaluation,” then the evaluator has an ethical responsibility to explain to the examinee the limits of confidentiality, including the fact that anything said during the evaluation may be included in the forensic report and provided to the court. But if the answer is, “my client is the person being tested, who has personally hired me with the knowledge of his own attorney only, and who wants to be free to keep the results confidential if they seem unfavorable to his pending court case,” then the ethical responsibilities about confidentiality obviously would be very different.
When conducting court-ordered evaluations, even if advised to consider the court to be “the client,” the evaluator also has ethical obligations to examinees.
It seems most accurate to think of these two entities—the court and the examinee—as two different types or levels of client. All clients have rights. In this example, the court may have established (through its contract or in its order) the right to receive the results of a timely evaluation in the form of an accurate report (or for court-ordered therapy, a description of services rendered, a treatment summary or compliance report, etc.). The person receiving the contracted assessment services has the right to receive a competent evaluation, as well as the right to be informed in advance about the psychologist’s prior relationship with the court and any limits of confidentiality that will be imposed by that contract. Regardless of whether a court or some other third party contracts for the services, naming only one entity as the client obscures the fact that the psychologist has important ethical obligations to both. (Fisher, 2009, p. 2)
In forensic evaluations, there are conflicting opinions as to which person or entity has a right to obtain the evaluation results, and this raises ethical questions, as well as legal questions. If the court is “the client,” does only the court have a right to receive the results of the evaluation? Professional Ethical Standards ordinarily give to examinees the ethical right to obtain their evaluation results, but these can contain exceptions for forensic evaluations. (See, for example, APA Ethical Standard 9.10.) In a 2014 article entitled “Who is the client and who controls release of records in a forensic evaluation?” Borkosky (2014) summarized some of the conflicting opinions and unresolved issues:
Based on anecdotal evidence and literature review, as well as the Specialty Guidelines for Forensic Psychology (American Psychological Association, 2013a), the majority opinion of forensic psychologists appears to be that the referral source is the primary client and controls release of evaluation records. Many supporting arguments have been proffered for these positions. The majority positions appear to be unfounded, however, for several reasons. First, the positions are not supported by a majority of forensic mental health ethics codes or practice guidelines. Second, the arguments proffered in support of these positions suffer from a number of serious logical flaws. Third, based on several ethical counterarguments tendered, a multiple relationships model (with competing, possibly conflicting, obligations) seems to be more ethical, as does evaluee-control over records release. Fourth, ethical arguments are rendered moot by state and federal laws that require evaluee control over records release. Finally, APA professional practice guidelines and ethics codes espouse conflicting views, both across documents and even within the same document; this is troubling, given that these documents reflect official APA policy (Borkosky, 2014, p. 283)
Some of the case examples below involve discussion of court involvement on the part of mental health professionals who have no forensic training and are naïve about court-related roles. (For example, see Case #6.)
G. Ethical Advantages of the Plural Question in Coaching Relationships
The “Who is the client?” question is now being raised in relation to executive coaching (Lee & Frisch, 2015; Stern, 2009). In cases involving only one self-referred individual, the issue does not ordinarily arise. For example, Stern (2009) stated that “the client is the individual being coached, with the primary focus on his/her relationship with the coach” (p. 268).
However, the issue can become more complicated when the individual being coached has been referred by an employer, and/or when the coaching is being paid for by some other entity.
Just below the surface of defining EC [executive coaching] is a tricky question: Who is the client? My answer is that the client is the person I am coaching. I refer to others on the scene as sponsors (HR and boss) and stakeholders (wider team). A coaching client is a “who,” not an organizational “what.” It is not the agency, company, department, group, or system that will have my main attention. It is the person in the coaching relationship who is the primary beneficiary and majority owner of the coaching engagement, even though in EC that person is not paying for it. I have three reasons for making this distinction. First, it helps to clarify both roles and confidentiality. In EC, confidentiality is not designed to be absolute; sponsors and stakeholders deserve input to a development agenda, and, at the least, sponsors help finalize and implement it. I want them to feel a partnership in fostering the client’s growth. In some ways, the more coaches the client has, the better. However, my commitment to confidentiality with the client must be stronger than the supportive relationships I have with sponsors. (Lee & Frisch, 2015, p. 7)
Note that this position takes a singular perspective in naming the person being coached as the client, even if the client was referred and the coaching was paid for by an employer. There is also some clarity about duties owed to the person who hired the coach. However, this might be stressed more clearly if the coach uses the plural questions, “What are my ethical responsibilities to each party in this case?”
III. Do Third-Party Contracts Affect “Client” Status?
Cases involving third party contracts provide good examples of how helpful the plural question can be. Cases having contractual duties sometimes involve more than one client, one of them being the contracting entity itself. Contracts of any kind can not only create specific duties that the clinician owes to the contracting entity, but can also create ethical responsibilities to clients and other parties who will be affected by the terms of the contract the clinician has signed.
As early as 1980, Monahan noted that mental health professionals had problems with client identification in cases involving third-party referrals. Noting the potential conflict between the interests of the referring or hiring entity and the interests of the individual receiving services, Monahan’s first recommendation was that psychologists inform all parties of the circumstances that might affect confidentiality. Koocher (2007) would agree that “in evaluation cases referred by third parties such as courts or schools, both the entity requesting the service and the person undergoing evaluation hold a kind of client status in such cases” (p. 380). This would apply in any third-party referral, whether the third party is a court, a school, an agency or organization, an attorney, or another individual. It would apply to all third-party referrals and third-party contracts, including those with third-party payers.
When a third party is involved and the clinician fails to have a contract (or a clear written understanding) in advance, it can lead to misunderstandings and ethical dilemmas down the road. However, it is important to remember that it would be ethically inappropriate for mental health professionals to sign any contract that obligated them to engage in behaviors that could do harm, or that would be contrary to their ethical responsibilities as outlined in the ethics code of their profession.
Finally, in all cases involving contracts, it is ethically essential to write the contract carefully (or to read it carefully if it is written by the contracting entity), because you are responsible for explaining to all involved parties, in advance, such things as the nature of the relationship with each, and for explaining how the terms of the contract might affect that relationship.
We discuss a few specific types of contracts below. To further expand upon and clarify issues that might arise in these cases, the vignettes at the end of this CE course include cases involving contracts.
A. Managed Care Contracts: When mental health professionals agree to become providers for third party payers, they engage in legally-binding contractual agreements that can create potentially-conflicting loyalties. Although they may not consider themselves to be providing services through those organizations (e.g., as if they were employed by the managed care company), their contract does make them “participating” providers who are agreeing to abide by the terms of the contract when providing services to patients who have policies with that payment entity.
Does a managed care contract affect ethical responsibilities? There has been a tendency on the part of providers to behave as if their ethical responsibilities were reduced when serving clients who received services under managed care contracts. For example, managed care cases require the submission of multiple treatment plans and other patient information, and it can be easy to send those electronically without ever informing the patients about what information is being sent.
In fact, the ethical responsibilities with managed care clients can be more complicated than with self-pay clients. For example, the informed consent conversation is required with both types of clients, but with the managed care client that conversation is complicated by the fact that there are more limits of confidentiality to describe and more risks of future disclosure to inform prospective clients about. Ethically speaking, therapists must explain in advance exactly how that contracted relationship will affect (and can potentially limit) the privacy, confidentiality, reimbursement amount, record keeping, and other aspects of their services.
Therapists who sign third-party payer contracts are entering a legally binding arrangement to serve as a provider under contract to that company. (Note that therapists enter into provider contracts voluntarily, so all disclosures to these payers are considered “voluntary.” However, even though no law gives third-party payer access, these are legally binding contracts whose provisions allow access that can be legally imposed.) Every provider contract is different; third-party payers vary in the type and the amount of information they require before authorizing reimbursement and at what stage(s) of the therapy that information must be provided. It is important for therapists to read their provider contracts carefully. Most managed care provider contracts grant access to the patient’s complete record for audit or other purposes. Also, provider contracts sometimes stipulate that the on-call therapist who will see the patient if the therapist is unavailable must also be a contracted provider with their company. Finally, some provider contracts stipulate that the therapist must retain clinical records for a certain number of years after the provider contract ends (which might therefore require retaining old records for many years longer than would otherwise be ethically or legally required). (Fisher, 2013, p. 98-99)
Does a reimbursement contract affect “client” status? As described in a previous section above, choosing a single “client” for third-party reimbursement in a multi-client case does not determine the clinical decisions about how to structure the case or change who is considered “client(s)” for clinical purposes. Furthermore, even when one party is named as “the client” for reimbursement purposes or for clinical purposes, this does not lessen the ethical responsibilities to all of the parties involved in the case.
B. Group Practice Contracts or Employment Contracts: Clinicians who join a group practice usually sign a business contract. The content of such contracts can vary widely. Sometimes providers become employees of the practice, sometimes they are independent contractors who provide services for the practice. Regardless of the relationship, contracts vary in what they cover and what conditions they impose.
Most group practice contracts and employment contracts stipulate the financial arrangements and expected schedules, but often they fail to clarify other issues that affect client status. For example:
- Will clients who receive services be considered “clients of the practice group” or “clients of the contracted provider who provides the services”? Although this may overlap with the “Who is the client?” question, it really introduces a different question: “Whose client is it?” The answer may determine not only where the treatment records are housed, but also who controls or legally “owns” the records. (See below.)
- Does the contract contain a “non-compete clause” that prevents the provider who leaves the group practice from opening a new practice within a certain distance or within a certain time frame.
- Is the clinician who leaves the group practice or agency free to transfer current clients to his/her new practice setting? The answer will affect the promises the provider is free to make during the initial informed consent conversation with a potential client.
- What about the records of current patients? Will they move with the clinician, or must they remain with the practice group? What about the closed records of prior patients? Are such issues clarified in advance in writing?
Clinicians employed by agencies or institutions are sometimes hired to provide direct clinical services to inpatients or outpatients. But organizations also hire clinicians to provide services to their own employees in the context of an Employee Assistance Program. Employment contracts in these contexts will need to clarify a range of things that can affect client status, including the questions raised above for group practices.
Unless such things are explicitly understood in advance, it is not possible for the clinician to provide clients with a full and honest discussion of the nature of the relationship and limits of confidentiality before beginning to provide services. Contract provisions can not only affect how a relationship begins, but can also affect what clinicians are ethically free to say to clients as they prepare to leave employment or contracted relationships in agencies or group-practice settings.
Social workers who inform clients that they may choose to continue working with them in the new employment setting must be exceedingly careful to ensure that the clients are fully aware that this is merely an option; social workers should not pressure or coerce clients to follow them to their new employment setting. A social worker could stand to benefit if clients choose to leave their current agency and continue working with the social worker in a new private practice. Practitioners must avoid the appearance of impropriety and actual conflicts of interest that may harm clients (Standards 1.06[a] and [b]). A social worker’s primary goal should be to meet clients’ needs (Standard 1.01) and respect clients’ right to self-determination (Standard 1.02). They should carefully discuss with the client all available and reasonable options and assess their benefits and risks. Clients who choose to follow their social worker to a new employment setting should do so because continuing to work with that social worker is the best way to meet their needs). (Saxey, 2013, p. 2)
C. Contracts for Providing Specific Clinical Services: Clinicians often provide specific services to clients at the request of a third party. This might include evaluations or therapy at the request of a court, school, or social service agency. Many clinicians who provide such services have been trained to treat the referring entity as “the client.” In fact, the guidelines for forensic psychologists now recommend that in a court-related evaluation, the person being evaluated is “the examinee,” but the person requesting and paying for the evaluation is “the client” (APA, 2013) However, as described above, this does not mean the clinician has no ethical responsibilities to the person receiving the services. One of those responsibilities involves the initial informed consent interview.
Unfortunately, one of the impediments to conducting that initial interview is that clinicians often initiate such services without having a contract in place that specifies such things as (1) what the fee will be for each type of service; (2) who is responsible for payment; and (3) what feedback (if any) is to be provided to the court, school, or other referring entity. It is recommended that such understandings be documented in writing. Until such details are clear, it will be impossible for the clinician to have a clear and honest informed consent conversation with the person who will receive the services.
For example, in cases involving court-ordered therapy, even if one considers the court to be “the client,” the court is not the only client. If we consider the court to be “the contracting client,” the person receiving the services is “the therapy client” — an entity to whom the clinician has some very specific ethical responsibilities. The clinician must therefore see the court order (and, if appropriate, must participate in having it amended) before conducting the initial interview. Otherwise, without knowing what information the “contracting client” expects to receive, it will be impossible to explain in advance to “the therapy client” what the limits of confidentiality will be. In other words, naming the court as the “contracting client” does not reduce any of the therapist’s ethical responsibilities toward the “therapy client”; in fact, as outlined in the therapist’s professional ethics code, it increases the ethical responses about informed consent, because it will likely limit the level of confidentiality that can be promised to the “therapy client.”
Ethics Codes stress the fact that in third-party referral cases, all parties, regardless of how named, have a right to be informed about such things as the limits of confidentiality. Marriage and Family Therapists, “upon agreeing to provide services to a person or entity at the request of a third party, clarify, to the extent feasible and at the outset of the service, the nature of the relationship with each party and the limits of confidentiality (AAMFT Ethical Standard 1.13, “Relationships with Third Parties”).
For Psychologists, the ethical responsibilities to each party are more extensive:
Psychologists delivering services to or through organizations provide information beforehand to clients and when appropriate those directly affected by the services about (1) the nature and objectives of the services, (2) the intended recipients, (3) which of the individuals are clients, (4) the relationship the psychologist will have with each person and the organization, (5) the probable uses of services provided and information obtained, (6) who will have access to the information, and (7) limits of confidentiality. As soon as feasible, they provide information about the results and conclusions of such services to appropriate persons. (APA Ethics Code, Standard 3.11, “Psychological Services Delivered To or Through Organizations”)
When providing clinical assessments at the request of a third party, the person receiving the services is not only a client but holds the rights (and deserves the protections) of any client receiving assessment services. For example, in contracting with a third party, Bush & Iverson (2011) recommended as follows:
Fisher (2009) suggested that the old question asked in such situations (i.e., Who is the client?) is not the most appropriate question, because the clinician’s ethical obligations are not limited to a single identified client. Rather, the better question to ask is “What are my responsibilities to each of the parties?” All parties should understand the key aspects of the arrangement, including (a) the nature and goals of the service, (b) the recipients of the services, (c) the nature of the various relationships, (d) the role of the neuropsychologist, (e) the anticipated uses of the information obtained, (f) limits to confidentiality, and (g) which parties have access to the information. Such information should be conveyed to all parties at the outset of the arrangement or as soon thereafter as is reasonable in order for the parties to provide informed consent or denial before participating (p. 43, emphasis added)
This would also be recommended in forensic evaluations.
Thus, although the confidentiality of the information obtained by forensic examinees may be limited (or even removed) by the third-party contract or court order, this does not mean the examinees have no rights at all about confidentiality. On the contrary, they have the right to be informed in advance about the potential limits (or complete absence) of confidentiality, about the foreseeable uses of the information that will be obtained from the assessment, and about their right to consent or refuse to participate. The ethical obligation to conduct this conversation with all assessment clients arises from Standards 3.10c, “Informed Consent”; 4.02, “Discussing the Limits of Confidentiality”; and 9.03, “Informed Consent to Assessments” (APA, 2002). In the context of forensic cases, this ethical duty becomes doubly important, because the examinee’s legal and civil rights can be left unprotected if this information is not provided. It thus seems most accurate to think of these two entities—the court and the examinee—as two different types or levels of client. All clients have rights. In this example, the court may have established (through its contract or in its order) the right to receive the results of a timely evaluation in the form of an accurate report (or for court-ordered therapy, a description of services rendered, a treatment summary or compliance report, etc.). The person receiving the contracted assessment services has the right to receive a competent evaluation, as well as the right to be informed in advance about the psychologist’s prior relationship with the court and any limits of confidentiality that will be imposed by that contract. Regardless of whether a court or some other third party contracts for the services, naming only one entity as the client obscures the fact that the psychologist has important ethical obligations to both. Koocher (2007) concurs that “both the entity requesting the service and the person undergoing evaluation hold a kind of client status in such cases.” (Fisher, 2009, p. 2)
IV. Case Examples: Using a Plural Question in Planning Informed Consent Conversations
A. Case #1: Adult Psychotherapy a Case Involving Managed Care:
Dr. Quick, a clinical psychologist in private practice, began his intake session with Sally Smith by obtaining her signature on a HIPAA “Notice of Privacy Practices” and on a form giving consent for him to submit claims to receive third party reimbursement from her managed care company. Sally began individual therapy, but after several sessions, Dr. Quick suggested that she bring her husband, Sam, to the next session; and in subsequent sessions the two met together with Dr. Quick. However, after ten sessions, Sally and Sam decided to separate and to end their marriage. The conjoint sessions ended; Sally resumed individual sessions.
After filing for divorce, Sam requested copies of the treatment records. Dr. Quick notified Sally of the request, whereupon her attorney contested the request. His argument was as follows: Sally alone signed the intake documents and HIPAA Notice; all the sessions have been and continue to be billed under her name only; Sam was simply a “brief collateral participant in Sally’s individual therapy;” there is no evidence that Dr. Quick ever considered him “the client;” he therefore has no legal right under HIPAA or state law to claim access to someone else’s records; and Dr. Quick has no ethical or legal right to release them to him. Sam’s attorney withdrew the request for voluntary disclosure of the records and instead served Dr. Quick with a subpoena, legally demanding copies of the records for all sessions in which Sam participated, asserting that during the conjoint sessions Sam had been treated as an equal participant in the therapy, that Sam had considered these to be “couple therapy” sessions, and that he therefore had acquired “client status.”
In hindsight, Dr. Quick may now realize that when he brought Sam into the case, he failed to pause, discuss the change, and clarify its implications (i.e., explain whether Sam was there as a collateral participant in Sally’s therapy or whether this was now a couple case in which the therapist had equal relationships to both parties). In other words, he never discussed Sam’s “client” status. He also failed to discuss whether this change would affect the financial arrangement, access to records, or the rules about confidentiality.
In effect, he failed to re-open the informed consent conversation to discuss the implications of the change in services, as required by professional Ethics Codes. For example, Counselors who are “changing from individual to relationship or family counseling” are ethically required to “obtain informed consent,” and to be sure that clients are “fully informed of any anticipated consequences (e.g., financial, legal, personal, therapeutic) of counselor role changes” (ACA Ethical Standard A.6.d, “Role Changes in the Professional Relationship”). Similarly, Social Workers who provide services to two or more people who have a relationship with each other (e.g.,, couples, family members) “should clarify with all parties which individuals will be considered clients and the nature of social worker’s professional obligations to the various individuals who are receiving services” (NASW Ethical Standard 1.06d, “Conflicts of Interest”). Psychologists are ethically required to discuss the rules about confidentiality not only “at the outset of the relationship” but also “thereafter as new circumstances may warrant” (APA Ethical Standard 4.02, “Discussing the Limits of Confidentiality”). Furthermore, “when psychologists agree to provide services to several persons who have a relationship (such as spouses, significant others, or parents and children), they 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 he information obtained” (APA Ethical Standard 10.02, “Therapy Involving Couples or Families”).
Dr. Quick may also now realize that when he changed from individual sessions to conjoint sessions, he should have considered whether this would necessitate a change in his billing arrangements. He had signed a provider agreement with a third party payer, but he may not have read it well enough to determine what types of services would be covered. When Sam entered the picture, did Dr. Quick fail to contact the managed care company to determine whether they would reimburse for “couple therapy” sessions; instead he simply continued to bill all sessions in Sally’s name, as if they were individual therapy sessions. Depending upon the policies of this third party payer and the terms of his contract, this may have put him at risk of being accused of insurance fraud.
Aside from the legal implications of Dr. Quick’s contract with the third party payer, his billing practices also have some important ethical implications. Ethics Codes require that mental health professionals provide accurate information to third party payers. Social workers “should establish and maintain billing practices that accurately reflect the nature and extent of services provided” (NASW Ethical Standard 3.05, “Billing”). Psychologists “take reasonable steps to ensure the accurate reporting of the nature of the service provided” (APA Ethical Standard 6.06, “Accuracy in Reports to Payors and Funding Sources”). Marriage and Family Therapists must “represent facts truthfully” to third party payors” (AAMFT Ethical Standard 8.4, “Truthful Representation of Services”).
Clinically speaking, was Sam a therapy client or was he a collateral participant in Sally’s therapy? The answer will determine whether there is a difference between Dr. Quick’s ethical responsibilities to Sally and to Sam. By failing to pause and clarify such clinical questions when Sam joined the therapy sessions, Dr. Quick created ethical issues that include informed consent and confidentiality, as well as ethical issues about third-party billing practices, all of which can also raise legal and risk-management concerns.
B. Case #2: Adolescent Psychotherapy in an Agency Setting:
Jimmy Jones, age 16, requested an intake interview at the local mental health clinic. He was referred for individual therapy by his pediatrician, who noticed symptoms of depression and anxiety. He has come alone, and he tells the receptionist that his parents both work and were unable to come with him. He is greeted by Susan Newsome, a counselor who is new to this clinic, although she has been practicing for years elsewhere in the same state and is an experienced with providing services to adolescents. When alone with her, Jimmy confides that, in fact, his parents are not with him because they do not believe in therapy and would not want him to come, so he would like to receive therapy without their knowledge or involvement. He reports that he has a weekend job and can pay in cash. Counselor Newsome agrees to see him on that basis, because she is familiar with that state’s law allowing minors of his age to seek mental health services independent of parent consent. She asks him to sign some intake forms and a HIPAA “Notice of Privacy Practices.
However, when she presents the case at the weekly staffing meeting, she is told that the clinic has a firm policy of providing services to minors only with parental consent. She was not informed about this policy when she signed her employment contract. When she reminds the staff of the state law, it is explained to her that it is an “enabling” law, which would allow them to serve Jimmy if they so choose, but it is not a law “requiring” that they provide service to Jimmy in the absence of parental consent.
As a potential employee, this counselor should have been provided with complete information about the clinic’s policies before she began seeing clients. Since she was hired to work with minors, it would have been especially important for her to know the clinic’s policies that would directly affect her work. In retrospect, she was very sorry she had not clarified the policies herself, before she made a promise to Jimmy that she would be unable to keep.
In this clinic, no minor may be deemed a “client” unless there is parental consent for services to be provided. If Jimmy is not qualified to be a “client” at this clinic what ethical responsibilities does this counselor have? First, she would be expected to bring good clinical skills to the next session with Jimmy, in which she must inform him that she will be unable to provide the services she promised. Second, she can be prepared to offer him the names of other clinical settings whose policies that will allow him to be seen as a therapy client without parental consent or involvement, if they deem that appropriate in his case, since that is allowed by law in his state. Third, with an eye to the rights of future potential clients, she can become familiar with all of the policies that might affect her work with minors. For example, some states give parents the legal right to obtain access to their minor child’s treatment records, even if the child was legally able to obtain the services without their consent. (See, for example, Virginia statutes §54.1-2969 AND §20-124.6.)
She might decide to create an adolescent consent form to be used in future cases, because even if parents are giving consent and remain involved, the therapist has a responsibility to inform the adolescent about the potential limits of confidentiality, regardless of whether they are deemed clients in their own right. Since she is employed by an agency, it would be important to have her form screened to detect anything that might be inconsistent with her clinic’s policies.
The Sample Adolescent Informed Consent Form provided by Kraft (2005) reflects the possibility of informing adolescents and their parents by asking them to review and sign the same consent form. The parents are treated as “collaterals” to an adolescent’s individual psychotherapy. For reference, that form is included as an Appendix in this course. It is an example of how parties who are not the “primary client” can be informed of what the rules will be in the clinical case.
C. Case #3: Adult Therapy Case in a Group Practice Setting:
Dr. James Helper has been working full time for many years as a clinical social worker in a group practice setting. He has decided that before he retires he wants to “take the leap” and open his own small private practice in the same town. He plans to work part time in the group practice while building a part-time private practice. His plan is to eventually build a full-time self-pay practice and will sign no provider contracts with third-party-payers in his new setting. He has advised his current patients about his upcoming departure from the group practice. When they asked whether they can continue to work with him when he moves, he discussed the pro and con arguments for staying with the group practice versus continuing to work with him in his new practice (e.g., possible changes in his schedule; possible changes in costs, changes in parking convenience, etc.).
The week before his new practice opens, he goes to the group practice office to review the treatment records of those patients who will be moving to his new practice. He is told by the office manager that those records belong to the group practice and may not be moved, at which point he politely informs the office manager that he will simply obtain “Release for Disclosure” forms from his patients who wish to have their records transferred. The office manager asks him if he has read his contract recently. When he does that, he discovers that in the midst of lengthy discussion of financial understandings, there is one sentence in his contract that contains a “non-compete” clause: By signing, he agreed that if he leaves the group practice he will not take patients with him and will not have a competing practice within 50 miles of the group practice office.
Dr. Helper did not know that his contract with the group practice contained such a “non-compete clause.” He is not sure whether that clause in his contract is too restrictive to be legally binding, and he plans to consult immediately with his attorney about that. But meanwhile he must decide what to say to his clients. What are his responsibilities about the clients who are planning to see him next week at his new office?
Does this case really raise a “Who is the client?” question? Perhaps it might be better phrased as a “Whose clients are they?” question, or perhaps a “Who are my clients?” question. This case, like Case #1, does raise questions about clinicians’ responsibilities regarding contracts. In this case, the clinician had signed a group practice contract without paying attention to the provisions it actually contained. The non-compete clause in that contract, now brought to his attention, creates a last-minute clinical dilemma that could have been avoided (Rabasca, L., 2000), either by refusing to sign the contract with that group unless it was amended, or by telling clients that his move would necessarily end his clinical relationship.
In the following case, it is not the presence of a contract but the absence of a contract that creates the ethical problems.
D. Case # 4: Child Case in School Setting
Dr. Tester, a clinical psychologist in private practice, is contacted by a local school system and agrees to conduct some student re-evaluations in order to assess continuing eligibility for special education services. Following each evaluation, he provides a formal report to the school but retains the raw test data in his own files. At the end of the summer, a parent asks Dr. Tester for copies of their child’s test results and complains that they should have been told the results before the report was provided to the school. Dr. Tester offers them a feedback session, for which he charges them his usual fee, and provides them with a copy of their child’s evaluation report. Upon reading his findings and recommendations, the parent decides that her child’s special-education placement is inappropriate. When the parent confronts the school, the school administration contacts Dr. Tester, notifying him that since they hired him and paid for his services, his report and his test data belong to the school, not to him, and that he should therefore have referred the parent to the school rather than providing a feedback session or offering a copy of his report. Meanwhile, the parent contacts an attorney who begins legal proceedings against the school and subpoenas Dr. Tester’s raw data.
In effect, the school’s position is that the school system — not the child — was Dr. Tester’s primary client, since the school had made the referrals and had paid for his services, and that they “owned” the test data and the report. Dr. Tester countered that state law and HIPAA gave parents the right to obtain their child’s records, and that he believed his professional Ethics Code required that he provide the feedback following an assessment. The school’s counter-argument is that if Dr. Tester had not retained any of the records, he would not be able to provide them, and the parents would have needed to come to the school to obtain information about the evaluation results.
Such issues should have been clarified before Dr. Tester ever began conducting psychological evaluations. Although he was working for the school system, he also had ethical responsibilities to the students being assessed, and to their parents. If there had been a written contract or a written “statement of understanding,” Dr. Tester would have been in a position to begin the evaluation process with an intake session in which he explained to parents such things as the limits of confidentiality created by his relationship with the school, the ownership of the report, and the expected process regarding feedback.
E. Case # 5: Third-Party Referral Case
Dr. Ready, a clinical psychologist, accepted a referral from her local Department of Social Services (DSS). The case involved two elementary-age children who were under DSS guardianship. The children were residing in foster care with Mr. and Mrs. Hope, who wished to adopt them. The children’s’ natural parents, who had previously lost custody of the children, were bringing a court case against DSS, attempting to regain custody. DSS requested that Dr. Ready (1) see both children in “play therapy,” involving the foster parents as appropriate; (2) evaluate the parenting ability of the natural parents; and (3) evaluate the parenting ability of the foster parents. Dr. Ready accepted the referral and proceeded to begin to provide the services requested by DSS. There was no formal contract, and in his intake sessions Dr. Ready failed to clarify the nature of her several relationships. One month later, the natural parents filed a complaint with Dr. Ready’s licensing board, alleging that she had a dual relationship and a conflict of interest, and a resulting lack of objectivity.
This complaint was probably predictable. In accepting this referral, Dr. Ready had apparently accepted the DSS perception of how the case should be structured. This led to some clinical decisions that had important ethical implications, because they created conflicting loyalties and potential conflicts of interest. In effect, she has treated the referral as if DSS were her only client, ignoring his ethical responsibility to the children, the foster parents, and the natural parents, all of whom are his clinical clients.
Dr. Ready’s actions also raise issues about clinical competence, since there is no indication that she even questioned whether the requested services were appropriate (e.g., was “play therapy” an appropriate intervention for the children?) or whether her training and experience matched the services being requested (e.g., was she qualified to assess parenting ability?). This case provides an example of the pitfalls of allowing the referring agency to control the clinical decisions. However, there is no indication that Dr. Ready attempted to revise the referral.
If the relationship had begun with a contract between DSS and Dr. Ready, there should have been a mutual understanding of her roles and their limits, and a clarification of her responsibility to all involved parties. Hopefully, in the writing of such a contract, Dr. Ready would have realized that it would be ethically inappropriate for her to undertake all the activities sought by DSS. For example, she might have informed DSS that she should not conduct a court-related evaluation on parents with whom she also had a clinical intervention relationship, since that could lead to a lack of objectivity. She might also have informed DSS that working with both the natural parents and the foster parents could involve a conflict of interest. In other words, one of her roles might have been to educate DSS about alternate ways to structure the case.
F. Case #6: Court-Involved Family Case
Mr. and Mrs. Ready no longer wish to be living together and are preparing for a likely divorce. They say they are constantly arguing over the terms of custody, and that they know this has been affecting the children, who have now begun to take sides. They contact Counselor Goodman, who begins meeting with the family (mother, father, pre-teen son and daughter). The meetings quickly become so contentious that Counselor Goodman decides to meet with the parents alone. After two such meetings, Mr. Ready becomes very angry, declines to participate further, and moves to a nearby city. Counselor Goodman continues to meet with Mrs. Ready, who has decided to seek sole custody of both children.
The attorney for Mrs. Ready contacts Counselor Goodman and requests that he testify in Mrs. Ready’s behalf during the divorce and custody proceedings. Counselor Goodman agrees, believing that doing so will be in the best interest of the children. Following the court proceedings, Mr. Ready files a complaint with Counselor Goodman’s licensing board.
Counselor Goodman had several options about how to conceptualize this case, which was obviously headed toward a contested divorce and custody proceeding. Options included (but were not limited to) the following:
- Tell the parents that you do not accept court-involved cases and offer to refer them elsewhere.
- Begin parent consultation, to help the parents learn how to protect the children from their quarreling.
- Begin couple counseling if it seems that the marriage can be saved; see children separately to assess their need for individual counseling with someone else.
- Begin child counseling to help the children cope with the family separation; refer parents for pre-divorce counseling and parent consultation elsewhere.
- Announce at intake that this will be accepted as a “hybrid” case, in which you will work with the family but will also have responsibilities to the court that is making decisions about custody of the children. In other words, you will function as a “forensic psychotherapist” and will consider both the family and the court to be your “clients.”
The problem is that Counselor Goodman’s role was never clear in advance. His relationship with each of the family members, and with the court, was never discussed during the intake or thereafter. The course he did take was therefore fraught with ethical complications.
- As couple counselor, he had equal ethical responsibilities to both parents, but he then proceeded to voluntarily testify in behalf of one of them. There is no indication that he informed the other parent of that intention.
- Without informing either of the parents in advance about this potential limit of confidentiality, he voluntarily accepted the role of “advisor to the court” and he discussed their confidential communications in that forum.
- The court testimony was voluntary, not compelled; there is no indication that Counselor Goodman had even received a subpoena, much less a court order. Voluntary disclosures of information require client consent, but this was not obtained from either parent at intake or at any other time before making the decision to testify.
Ethically speaking, these are among the most difficult clinical cases, but Counselor Goodman has made the situation even more difficult than necessary. At the time of intake, he could have either refused the case or clarified his dual role and its limits, as described above.
The advisability of taking on “hybrid” roles is questioned by both ethicists and malpractice insurers. Knapp and VandeCreek (2012) caution that “the hybrid role of the forensic psychotherapist contains the potential for misunderstandings and ill feelings” (p. 160). Bennett et al (2006) advise against combining the roles: “The hybrid role of ‘treating expert’ presents unique ethical and legal demands that require consideration of your roles and obligations” (p. 141). In their malpractice text they also express concern about “legally uninformed clinicians,” who “know very little about forensic issues or the experience of testifying” (Bennett et al., 2006, p. 129) and who may be naive about the ethical, legal, and clinical implications of their participation in legal proceedings.
But at the very least clients’ informed consent rights must be protected in “hybrid” cases: At intake prospective clients must be advised that the clinician will wear dual hats, working in behalf of the family and assisting the court, and that this will severely limit the confidentiality of their relationships with the counselor. This gives them the opportunity to decide in advance whether to participate and whether to confide.
G. Case #7: Organizational Consultation Case:
Dr. Busy, an Industrial-Organizational (I-O) Psychologist, has been contacted by Mr. Bigg, owner and CEO of a large accounting firm. Mr. Bigg reports that he has been hearing “rumblings” from some of the secretaries, who seem to be implying that the accountants are unhappy with the company’s policies. Mr. Bigg wishes to hire Dr. Busy to meet with the secretaries and with the accountants, to report back with his findings, and to help plan an intervention, if that is needed.
Dr. Busy meets with the secretaries and accountants, writes a summary report, and devises a plan for his ongoing involvement as a consultant. He recommends that he be hired to lead weekly staff meetings where staff concerns can be safely aired.
When Mr. Bigg reads the report, he is upset at some of the staff complaints about his company’s policies, and in several cases he demands to know exactly who has made each particular complaint. Dr. Busy declines to identify individual staff members, stating that they confided in him only because he promised them confidentiality. He explains that he told staff members the report would contain the concerns they expressed, but that individual staff members would not be identified. Mr. Bigg is very angry, stating that he is the one who hired him as consultant and that he refuses to pay for the consultation unless Dr. Busy will provide him with all of the information he obtained in his consultations. Dr. Busy states that he was a consultant, not a “hired spy,” and that he would not break his confidentiality promise to the staff.
Obviously, Dr. Busy and Mr. Bigg had very different ideas about how the consultation would proceed. With no initial contract, Dr. Busy had promised the secretaries and accountants a level of confidentiality that allowed them to speak freely about their concerns. From Mr. Bigg’s perspective, however, Dr. Busy was working for him, and his report was incomplete because it did not contain all the information he had hoped to obtain when he hired a consultant.
If Dr. Busy had begun this relationship by trying to devise an initial contract, he might have understood Mr. Bigg’s goals more clearly and could have decided in advance whether he could proceed to provide consultation on that basis. If so, then before asking staff members to confide in him, he would have needed to inform them that the information they shared with him would be included in his report to their boss, not just as a summary but with identification of the staff member who provided the information. Instead, without a prior understanding with Mr. Bigg, he had promised a level of confidentiality that he thought was necessary for the success of the consultation.
In consulting with organizations, such misunderstandings are predictable if there is no contract, or if the contract does not stipulate what information will be contained in the final report and what information will remain confidential. Without such advance understandings, Dr. Busy was not in a position to make the confidentiality promises he made.
Who is the client in this case? As described above, Industrial-Organizational (I-O) consultants are sometimes trained to consider the hiring entity as “the client,” as if that singular answer clarified their professional obligations and responsibilities. But mental health professionals have Ethics Codes that are clear about the necessity for having enough information available in advance to allow a clear informed consent conversation with all parties, regardless of how they are named. For example, “Psychologists delivering services to or through organizations provide information beforehand to clients and when appropriate to those directly affected by the services about (1) the nature and objectives of the services, (2) the intended recipients, (3) which of the individuals are clients, (4) the relationship the psychologist will have with each person and the organization, (5) the probably uses of services provided and information obtained, (6) who will have access to the information, and (7) limits of confidentiality” (APA Ethical Standard 3.11, “Services Delivered to or Through Organizations”). Similarly, “Counselors use clear and understandable language to inform all parties involved about the purpose of the services to be provided, relevant costs, potential risks and benefits, and the limits of confidentiality” (ACA Ethical Standard D.2.b, “Informed Consent in Formal Consultation”).
Using the plural question — “What are my ethical responsibilities to each of the parties in this case?” — would have helped the I-O consultant participate in writing a clear consultation contract in advance. This would allow him to protection of the informed consent rights of all parties who will be involved in the consultation and would help him avoid making only such promises as the contract allows him to keep.
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ADDENDUM: Adolescent Consent Form
(© 2020), Mary Alice Fisher, Ph.D.
Portions of this course were adapted from the book, The Ethics of Conditional Confidentiality, A Practice Model for Mental Health
Professionals, published by Oxford University Press in 2013, especially Chapter 1, “Ethical Responsibilities About Confidentiality”
and Chapter 9, “Talking More About Confidentiality: Educating Each Other and the Public.” To order the book, please follow this link for more information.