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have it, click here to get the free Adobe Acrobat reader.) -------------------------------------------------------------------------------- Law and Ethics
Laws - An MFT must know the laws and apply them to situations they encounter in their practices.
Ethical guidelines - An MFT must also abide by ethical guidelines, standards and practices.
Clinical considerations - Sometimes a decision will be influenced by the clinical treatment which will influence how the laws and ethics are handled.
Personal style and values- An MFTfs personal style and way of working will influence how she or he carries out the legal and ethical responsibilities.
Community Considerations- An MFT will have to know what community resources are available in order to fulfill his or her legal and ethical responsibilities. It is important to know which hospitals have involuntary holds, and who to call for child and elder abuse.
When making clinical decisions, MFTs must always consider laws and ethical standards; however, clinical decisions may also be influenced by clinical treatment considerations, an MFfTs personal values and style, and community considerations.
If decisions are based on the law, it is most likely that these will be state laws, since there are very few federal laws that apply to an MFTfs practice.
Confidentiality
Privacy is a basic right that allows a person to decide how much of his or her thoughts, feelings, and personal data will be shared with others. Confidentiality is a general standard of professional conduct that obliges and MFT not to discuss information about a client with anyone. Because of this ethic, a client can be assured that the content and fact of his or her therapy will be kept confidential by the psychotherapist. Although confidentiality is an ethical issue, it can have legal ramifications if a therapist violates a clientfs confidence.
The three situations, in which a breach of confidentiality is mandated, or required, regardless of intervening personal or clinical considerations, are duty to warn, known or reasonably suspected child abuse, and elder or dependent adult abuse. For MFTs, the most relevant exception to privilege that permits but does not mandate, a breach of confidentiality occurs when the therapist has cause to that a client presents danger to themselves or others or the property of another, and disclosure of this information is necessary to prevent the danger. In law, this allowable breach is referred to as Evidence Code 1024.
Tarasoff
When, due to his or her mental or emotional condition, a client poses an imminent danger to themselves; a breach of confidentiality is allowable and usually necessary. If an MFT believes that a client is a high risk for suicide, the MFT must take reasonable steps to ensure the clientfs safety. Often an MFTfs response in this situation will include establishing a suicide prevention contract with the client, contacting the clientfs family and/or having the client hospitalized. The gduty to warnh specifies that a clientsf confidentiality must be breaches when the client believed to be a serious danger to an identifiable other person. The Tarasoff case is relevant to this requirement. According to this case, gwhen a psychotherapist determines, or pursuant to the standards should determine, that his patient present a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.h The discharge of such duty, depending on the nature of the case, may call for the therapist to warn the intended victim of the danger, to notify the police or to take whatever steps are reasonably necessary under the circumstances. The Tarasoff ruling is commonly cited as establishing a gduty to warn.h However, the ruling actually prescribes a duty to protect an intended victim by taking the above noted steps.
Privilege
Privilege is a legal term that refers to a clientfs right to not have confidential information released in legal proceedings.
The client is ordinarily the holder of privileged which means that therapist cannot reveal confidential information in a legal proceeding unless this person has waived the privilege. Privilege is waived when a client has consented to the disclosure of information, and when a client has disclosed a significant part of the information to a third person and d in certain legally defined situations.
In conjoint therapy, the waiver of the privilege by one of the clients does not affect the right of another of the clients to claim the privilege; this is true even when it relates to the same confidential information. Legally defined exceptions to privilege (situations in which the privilege is waived) include: when a therapist is acting in a court-appointed capacity (e.g., when the therapist has been appointed to evaluate a defendant); a client initiates a malpractice or other lawsuit against the therapist; a client has introduced his or her mental condition as a defense in a civil suit; the client has sought the assistance of the therapist solely for the purpose of committing a crime, and the therapist determines that a client is in need of hospitalization for a mental or emotional disorder.
Permissible Disclosure
According to Evidence Code 1024, there is no privilege when a therapist has reasonable cause to believe that the patient is in such a mental or emotional condition as to be dangerous to self or others or dangerous to the property of another person and that disclosure of the communication is necessary to prevent the threatened danger. Other than in a Tarasoff situation, E.C. 1024 defines situations in which a therapist is permitted to breach confidentiality. In an ambiguous situation, in which it is not clear to you whether this exception to privilege applies, it is better to err on the side of caution and maintain confidentiality.
According to Welfare and Institutions Code 5150 involuntary hospitalization is one option you have when a clientfs danger to self or others is the result of a mental disorder.
When a client threatens suicide, an MFT is ethically justified in breaking and legally permitted to break confidentiality in order to protect the client. In other words, when a client is suicidal, a therapist must take reasonable steps to prevent suicide. However, when doing so the therapist should violate the clientfs confidentiality as little as possible.
Involuntary Confinement
According to Welfare and Institutions Code 5150, if a client is a danger to him or herself and others or gravely disabled as a result of a mental disorder, and MFT may have him or her involuntarily hospitalized for 72 hours. In cases in which hospitalization is required voluntary hospitalization is always preferable to involuntary hospitalization.
Persons Legally authorized by Welfare and Institutions Code 5150 to involuntarily confine an individual include police officers, members of the attending staff or other professional persons designated by a county. An MFT who believes that her or his clients should be hospitalized involuntarily should contact the police or Psychiatric Emergency Team.
HIV and Confidentiality
Physicians Physicians may but are not mandated to inform an HIV positive patientfs sexual partner or needle sharing partner of the patientfs test results without the patientfs permission. Physicians may also inform other health care workers of those test results without the patientfs permission.
Psychotherapists Despite the legislation, an MFTfs obligations and rights with a client who is HIV positive remain unclear. For example there is no specific gduty to warnh when a HIV positive client does not inform a sexual or needle sharing partner of his or her test results. However, an MFT who takes actions warn such a partner would possibly be protected under the provisions of the Evidence Code 1024. In general, however, it is better to maintain confidentiality and encourage the client to notify his or her sexual or needle sharing partner.
Child Abuse
If in the course of your work you acquire wither knowledge or a reasonable suspicion of child abuse, you must file a written report with the proper authorities by telephone as soon as possible o immediately. You must then file a written report within 36 hours.
There is no time limit on child abuse reporting; as long as the victim is still a minor, you must file a child abuse report. However, if you learn about the child abuse outside your professional capacity or role, you have the option, like any other citizen, to either make or not make a report.
The telephone report must include the name of the person making the report, the name of the child, the nature and extent of injury and any other information requested by the child protective services, including the information that led you to suspect child abuse or neglect.
Child physical abuse is defined as any physical injury inflicted on a minor, other than an injury inflicted by accidental means.
The negligent failure to care for a child when injury has resulted, as well as the intentional failure to care for a child when injury has not resulted constitute severe neglect. General neglect is defined as the failure to care for a child that does not result in injury.
Sexual abuse includes two categories: sexual assault (e.g. incest and molestation) and sexual exploitation (e.g. encouraging a minor to engage in obscene acts or prostitution). Another example of the former is lewd and lascivious acts upon a child under the age of 14. It refers to any sexual toughing or intercourse with a male or female child under this age, even if it is consensual. However, according to a ruling by the Attorney General there is no legal mandate to report voluntary, non-abusive sexual conduct between two minors under this age.
Sex between an adult over the age of 21 and a consenting minor under the age of 16 does not have to be reported, according to the Child Abuse Reporting Law, effective January 1 1998.
Elder or Dependent Adult Abuse
California law defines an gelderh as a person who is age 65 years or older. A gdependent adulth is a person between the ages of 18 years and 64 years, who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.
Mandated reports are required to report instances of known and reasonably suspected physical abuse, abandonment, isolation, neglect, financial abuse, and any other treatment that results in physical harm, pain or mental suffering. gMental sufferingh includes fear, confusion; sever depression, agitation or other serious emotional distress caused by threats, harassment or other forms of intimidating behavior.
As a mandated reporter and MFT is required to make a report of known and suspected elder or dependent adult abuse when, in his or her professional capacity, or within the scope of his or her employment, he or she has observed or has knowledge of an incident that reasonably appears to be physical abuse, neglect, financial abuse, abandonment, or isolation; he or she is told by and elder or dependent adult that he or she is experiencing behavior constituting physical abuse, neglect, financial abuse, abandonment or isolation. Or he or she reasonably suspects abuse.
gPhysical abuseh is defined as including assault, assault with a deadly weapon or with force likely to cause great bodily injury, battery, unreasonable physical restraint; prolonged or continual deprivation of water or food, various forms of sexual assault, and certain inappropriate uses of chemical or physical restraint as defined by the law.
Examples of elder or dependent adult gneglecth include the failure to assist in personal hygiene or in the provision of food, clothing or shelter; as well as the failure to provide medical care for physical health needs, failure to protect from health care safety hazards, and the failure to prevent malnutrition and dehydration.
Report of known or reasonably suspected elder or dependent adult abuse must be filed by telephone immediately or as soon as practically possible. A written report must then be filed within two working days.
Reports should generally be made to the countyfs adult protective agency or to the local law enforcement agency. However, if the abuse occurred in a state mental health hospital or state developmental center, reports should be made to designated investigators to the State Department of Mental Health or the State Department of Developmental Services, or to the local law enforcement agency. And if the abuse occurred in a long term care facility (other than a state mental hospital or state developmental center), reports should be made to the local ombudsman or to the local law enforcement agency.
Treatment of Minors
A minor is entitled to a confidential relationship with his or her therapist. With regard to the privilege, however, when a minor is in therapy with his or her parents consent, the parents may claim or waive the privilege on the minorfs behalf. In addition, in this situation a minorfs parent(s) has a legal right to inspect/access a therapistfs records about their child, unless the therapist determines that this would have a detrimental effect of his or her professional relationship with the minor client or on the minor clientfs physical safety or psychological well being. When treating a minor with the parentfs consent the therapist must have the permission of the parents to communicate with the minorfs teacher or examine the minorfs medical records.
When the parents of a minor are divorced, the custodial parent may give consent to treatment. However, both custodial and non custodial parents may access and inspect information about the therapy of the minor. In these circumstances however, the therapist should use his or her professional discretion, and always act in the best interests of the minor client.
To be emancipated, a minor must be age 14 or older. In terms of the law emancipated minors have the same rights and obligations as adults.
Under some circumstances, minors age 12 or older can receive psychological services with parental knowledge and consent. For this to occur, the therapist must determine that the minor is sufficiently mature, and that without treatment the minor would present a danger of serious physical or mental harm to self or others. In addition such a minor can receive psychological treatment without parental knowledge or consent if he or she has experienced child abuse. When a child receives psychological services without parental knowledge or consent, the therapist can act as the claimer of the privilege. For the therapist to be able to obtain the minorfs medical records in this situation, the minor must give signed consent.
Sex and Psychotherapy
Sex with a client is prohibited by both ethical standards and laws defining professional conduct. As a result, an MFT who engages in sexual activity with a client may be penalized by having his or her license revoked.
In recent years, two other laws have been enacted with regard to psychotherapist sex with a client; According to C.C. 49.93, a client has a cause for civil action against a therapist when sexual contact occurs during the course of therapy, within two years following termination of therapy and/or by means of deception. This law also requires the subsequent therapist to give the client who reveals sexual contact with a therapist a brochure that explains the clientfs rights and remedies. B. & P.C. 729 allows a psychotherapist to be criminally prosecuted and convicted for engaging in sexual activities with a client. In terms of sexual relations with former clients, criminal penalties also ensue if it is proven that a therapist terminated therapy for the purpose of engaging in sexual activity unless the therapist has referred the client to an objective and independent psychotherapist, recommended by a third party psychotherapist for treatment.
Laws Regulating MFT Practice
The law defines the practice of marriage and family therapy as services performed with individuals or groups wherein interpersonal relationships are examined for the purpose of achieving more adequate, satisfying and productive marriage and family adjustments. MFTs may practice psychotherapy and diagnose and treat mental disorders as long as these processes are directed toward relationship problems. However, the scope of individual MFTfs practice is always limited by his or her training and competence.
An MFT may conduct psychological testing if he or she can substantiate that he or she has had adequate training and experience. And is using the tests to assess and /or treat relationship problems.
With regard to supervision, the supervisor and person being supervised are responsible for ensuring that the counseling performed by the intern is consistent with the training and experience of the intern and that the intern complies with al laws and regulations governing MFT practice.
With regard to the MFTfs license, unprofessional conduct is punishable by revocation or suspension of the license. Examples of unprofessional conduct include: misrepresentation involving type of license held, educational credentials, professional qualification or professional affiliations; performing or holding oneself out as being able to perform services outside the scope of the license; failing to maintain confidentiality, except as otherwise permitted or required by law; and soliciting or paying remuneration for referrals.
Laws Regarding Marriage
The requirements for marriage, with a few legally-defined exceptions, are a marriage license, a medical exam (where required) and a marriage ceremony. In addition, both parties must be age 18 or older, unless they have been granted permission to marry by a superior court order after the consent of a parent or guardian of both parties has been obtained.
Under California law, dissolution of marriage can be granted on two grounds: irreconcilable differences and incurable insanity. If both parties are agree a legal separation (whereby the parties remain legally married) can be granted on these same two grounds. By contrast dissolution of marriage does not require the agreement of both parties.
When the custody of a child is in dispute, the court is required to determine custody in accordance with the childfs best interests. Custody is to be awarded in the following order of preference: joint custody, to either parent according to the best interests of the child, to the person or persons in whom home the child has been living a wholesome and stable environment; or to any person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
The tests for determining the amount of the child support to be paid is the need of the child and the ability of the parent to pay. |
