(Transcribed by TurboScribe.ai. Go Unlimited to remove this message.) Hi, welcome to the Abundant Practice Podcast. I'm Allison from Abundance Practice Building. I have a nearly diagnosable obsession with helping therapists build sustainable, joy-filled private practices, just like I've done for tens of thousands of therapists across the world. I'm excited to help you too. If you want to fill your practice with ideal clients, we have loads of free resources and paid support.
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So many of us are living this life and you can too. You can get started with 75% off your first month if you use the coupon code PODCAST at checkout. Click the link for the Abundance Party in the show notes to join. Welcome back to the Abundant Practice Podcast. I'm your host, Alison Puryear, founder of Abundance Practice Building. Today, I'm here with Dr. Frederick Reimer.
We are going to be talking about how to protect our clients, not get sued, and make sure that we're on the up and up ethically. So thank you so much for being here and talking with us about this. It's my pleasure. Thanks for having me. So where should we start? What do you see as almost the most urgent thing you want to communicate? Two things.
One is, I think, behavioral health practitioners, whether they're licensed mental health counselors, psychologists, psychiatrists, social workers, substance use disorder specialists, they should be aware of the major risk areas. So if you look at the data on licensing board complaints and lawsuits, not a pleasant subject, let's get that out there upfront, not a pleasant subject.
The biggest risks, in my experience, having been an expert witness in this arena for many, many years, the biggest risks have to do with management of complex boundary issues, relationship issues, decisions about disclosure of confidential information, when you don't have clients' authorization to protect third parties, or maybe there's a law enforcement inquiry, or you're providing services to a minor and the parents want to know what's going on in therapy. They want to see your notes.
Issues around informed consent, issues around conflicts of interest, termination of services with a client who's missed a number of appointments or is not compliant, and most recently, challenges related to the use of technology. When I started my career, these issues didn't exist.
When I started my career, a tweet was the sound a bird made, not something associated with a smartphone app that used to be called Twitter, now called X. And when I started my career, and I suspect this is true for many people, TikTok was simply the sound a clock made, not a smartphone app. And the cloud was the white fluffy thing in the sky, not where you store your electronic records.
And so, more and more, I am seeing litigation cases and licensing board cases where there are some very serious and complex questions about how practitioners are using technology to serve clients remotely, to communicate with them outside of normal working hours using text or email, practitioners who are friending clients or former clients on Facebook, Instagram, let's say, the ways in which we store information in the cloud.
And I could go on and on and on about the ways in which the cloud storage has created some ethics problems. So that's one thing, just knowing the risk areas. And the other thing is that I think practitioners should be intimately familiar with practical steps they can take to, number one, protect clients.
I think we would all agree that's our first priority, protecting clients, but also practical steps that practitioners can take to protect themselves, to minimize the risk of a lawsuit, to minimize the risk of a licensing board complaint. And then if one of those things seems to be in the offing, steps they can take to try to reduce what lawyers call their exposure. These are all really juicy. A lot of juice. I feel like we could probably do... A lot of juice. ...hours on each of them.
Can we start some in talking through the problems you see arise most? I think the first thing you mentioned was dual relationships. Can we start to talk about how that exists? What are you seeing particularly in the relationships realm when you're an expert witness or working with people?
So with regard to that specific topic, the dual relationship boundary issues, so many of the lawsuits that I have to consult on and testify in, if they get to trial, so many of the licensing board complaints involve those issues. Everything from the egregious sexual involvement with a client or former client, as in they terminated 10 minutes ago and then entered into the intimate relationship. So those are the egregious cases.
But then there are more complex cases where, and I've seen a number of these, where practitioners are quite altruistic. They are very concerned about a particular client who's vulnerable. They start to perform some favors for that client. In one case, the client was physically disabled. The practitioner was doing some food shopping, giving the client rides, taking the client to appointments. And this is psychotherapy. I mean, that was the nature of the relationship.
And surprise, surprise, the client became very dependent on the practitioner. I think began to have some fantasies that this was going to turn into a more intimate relationship. The practitioner realized it started to set limits and the client didn't like that and filed the board complaint. I've seen a number of those kinds of cases where well-meaning, that's the point, well -meaning practitioners, not the practitioners who are trying to seduce a client or engage them in a sexual relationship.
That's a different category. And I've had, sadly, a number of those cases, but well-meaning practitioners who put their foot on the slippery slope and they end up performing too many favors. They're disclosing too much personal information to clients. The boundaries become very fuzzy. And then the client doesn't like it when the practitioner sets limits and it ruptures the relationship. And here comes the licensing board complaint.
So I want to distinguish between, and this is the jargon we use in the field. So-called boundary violations, the more outrageous inappropriate relationships. And those that are sort of in the gray zone, what those of us in the ethics trade call boundary crossings. And so I personally function from, if it feels not very clearly, okay, then IV or no. Is that a fair way to do it? Are there other ways to mitigate your risk when it comes to your relationship with clients and managing?
I'm thinking about people in small towns who may go to church with their clients or their kid's teacher is their client or something like that. It's easier where I live. It's not as small, but how do you help people discern whether or not that they're putting their foot on that slippery slope? Well, great question. And I would say, yes, absolutely. Trust your sort of internal radar. If your meter sort of goes off like, nah, this one doesn't feel quite right. Trust your gut.
But I would say that's a necessary, but not sufficient element or variable in the equation. I would say there are some other key variables in that equation. So I'm a big proponent of consultation. If, for example, you are living and working in a small town, and as you suggest, your personal life is going to intersect with your professional life and your work with clients at church, in the supermarket.
You have a nine-year-old child who's in the third grade and your client has a nine-year-old child in the same third grade. There's only one third grade in this small town. And now those kids, surprise, surprise, are best friends forever. So they think. And they plan to weekend sleepover at your house. Well, can you do that? Can you have your client's kid sleep over at your house? You're the therapist.
Or let's say you're a clinician in recovery and you go to a 12-step meeting and there's your client. You've got to make a decision about whether to stay, whether to leave. If you stay, do you share? If your client gives you an expensive gift and you have to decide whether to keep it so as not to insult your client or whether to say, gee, I'm so sorry, I can't.
And then you have the difficult conversation or the client invites you to the wedding or the graduation ceremony or the bar mitzvah or the baby naming. All of these circumstances, I'd say in addition to sort of trusting your own gut or that radar, get consultation. I would say one of the biggest mistakes practitioners make is they're solo pilots. They handle these things on their own.
And I recognize that most practitioners are very competent and very smart and they exercise good judgment most of the time. But sometimes we're so close to these complicated situations that it behooves us, I think, to get consultation from thoughtful colleagues, from supervisors.
If you work in an agency, if you're in private practice, I think you ought to be part of a peer consultation group and run it by colleagues to try to get some more objective view of the situation that you're very close to. In addition, another variable in the equation, if I can use that metaphor in addition to trusting that kind of internal radar that you mentioned in addition to consultation, be familiar with the ethics standards in your profession. And they are not all the same.
So I chaired the national task force that wrote the code of ethics for the social work profession. Now, most of the ethics guidelines, when you compare social work with psychology, with psychiatry, mental health counseling, marriage and family therapy, and so forth, they're pretty similar in most respects. But there are some key differences.
And I get involved in cases where the practitioners on witness stand and a prosecuting attorney or a plaintiff's attorney asks them to describe the current ethical standards in their field related to the case, and they blow it. They don't know what their current code says, for example, with regard to relationships with former clients. And if you line up the social work code of ethics with mental health counseling code of ethics, by the way, there are three of those in mental health counseling.
That's a different story. The psychology code, the MFT code, et cetera. The standards on relationships with former clients are very, very different. And people need to know that. One profession says can't have a relationship with a former client within two years of termination. Not that they would encourage it, but you can't do it within two years. Another code says five years.
The social work code written by the testers that I chaired says basically once a client, always a client, a client in perpetuity. There's some very narrow exceptions, but very narrow. And so that's another variable in the equation. Another variable in that complex equation is know the ethics standards adopted by your licensing board. Some licensing boards in their statutes, in their regulations actually cite a professional code of ethics from psychology, social work counseling, and so forth.
But not all boards do that. Some boards create their own ethics standards, which might be different from the standards in your code of ethics adopted by your profession. You're held to those. You got to know those things. And finally, I would say, know when to consult an attorney. I don't think you need to consult an attorney every time there's an ethics challenge. I think that's frankly kind of silly.
If your client happens to bring you a plate of chocolate chip cookies with nuts and says, oh, I made some extra. These are for you. What are you going to say? Hold on. Let me call my attorney to find out if I can accept these. That's a judgment call. Let's not be silly here. If a client asks you, I've been kind of wondering, how old are you? Where do you live? Do you have any kids? A lot of clients ask those questions. What are you going to say? Time out. Let me call my attorney.
No, that's a judgment call, both clinical and ethics. But there are a lot of ethical issues with which I deal where I think you have to get legal consultation because some of these issues are really, really complicated. Involving very esoteric confidentiality provisions, there's federal law, there's state law. The federal law may conflict with the state law. I'll give you one quick example. I was involved in a case where an adolescent was brought in for counseling. Parents brought the kid in.
The parents knew the kid was getting counseling. The kid was struggling with mood issues. And then it comes out in the counseling, air quotes, confidentially, by the way, I use air quotes because to me, the term confidential case record is complete fiction. There is no such thing. I can rattle off 24 different ways in which records are not confidential, but that's a sidebar.
So this kid during counseling discloses confidentially, air quotes, to the clinician that he's struggling with substances big time. And he wants help. And this is at a mental health center where there is a program that is designed for high-risk adolescents with co-occurring issues, mood disorders, substances, federal funding, don't need the parent's insurance card. Clinician says, I can get you help. We have a program right down the hall, but I want to tell your parents what we're doing here.
And the kid says, absolutely not. The kid does not consent to that because he thinks the parents are going to air quotes, kill him if they find out about the substance use, not literally, but give him a hard time. And so despite the clinician's skillful efforts, the kid does not consent to the disclosure. And then the question is ethically, can you arrange services for an adolescent without telling the parents that you did it, the substance use counseling? There's external funding.
You don't need the insurance card. So they're not going to find out for that reason with the EOB. And this is really complicated because there's federal law that's relevant to that decision. Title 42 CFR part two, section 2.14. Literally, that's where it is. And then there's state law and the state laws on this issue differ dramatic with regard to provision of substance use disorder counseling services to minors without notification of parents. Some states permit it, some states don't.
Those that do permit it, it might depend on the kid's age or whether physicians sign off on this. It is complicated and it's high risk. And if you provide services to a kid without the parents' knowledge or consent, and then they find out, which often they do, and they file a lawsuit or a report complaint, that's a problem. And that's an instance where consulting with a lawyer, that's the main point here, I think would be extremely smart.
So knowing when to consult with a lawyer, when it's not necessary, that's another variable in the equation. So I get asked questions from my students or people in my audience all the time that are ethical in nature and I am not well-versed enough, I don't want to step in that. So I often will recommend that they call their malpractice insurance and they usually will have a free call with an attorney through there. Is that good advice? Is there somewhere else I should be sending them?
I think it is another tool in the toolbox. However, I wouldn't rely on that for legal advice entirely. Why? If the insurer links you with an attorney, who is that attorney's client? Is it you? Or are they there on behalf of the insurance company? So if it's a complex case, first of all, I would get that consult, that's good information, but I always prefer to consult an attorney.
If it's a complex legal case, I always prefer to consult an attorney who's going to represent me, not an insurance company. And the way to do that is to find an attorney where you live and work, who specializes in number one, healthcare law, that's number one, not labor law, not criminal law, not your sister-in-law, who's a terrific labor lawyer who will do it for free. She doesn't know this area of the law with all due respect. If you have knee pain, are you going to go see a dermatologist?
Dermatologists went to medical school. I would think you'd want an orthopedist, not a dermatologist. Same thing with lawyers. So number one, I want a lawyer who specializes in healthcare law. And then within that, I want a lawyer who specializes in representing behavioral health professionals in litigation and licensing board cases, not a plaintiff's attorney. That's another key distinction. I don't want a plaintiff's attorney.
I want a defense attorney because defense attorneys get up in the morning and spend all day long thinking about how to protect people like us. If your audience members belong to a professional association, American Psychological Association, National Association of Social Workers, American Counseling Association, and so forth, they may be able to get some ethics consultation through that association. Typically, they cannot tell you what to do.
They cannot advise you, you should do X, don't do Y. Legally, they may not be able to do that, but they can walk you through the situation and help you identify what the ethical issues are, what your options are, and even though they can't tell you what to do, here is a major, major benefit of making that phone call, whether it's consulting with the ethics office at the National Association of fill in the blanks, psychology, social work, whatever, consulting with an attorney.
I get a lot of calls because I specialize in ethics. I get lots of calls for consultation. Here's the advantage of that. In addition to getting the substantive consultation, which I hope is helpful, just the fact that you reached out for consultation, which by the way, please document that you made that phone call.
If your judgment is ever questioned down the road, in a lawsuit, in a board complaint, you have to defend your decision around the boundary issue, around the confidentiality issue, around the termination of service issue, whatever it happens to be. The fact that you sought consultation adds a layer of protection. A lot of people, I think, don't realize that.
In addition to the substance of those conversations, just the fact that you did it shows that you made a good faith effort to handle the situation responsibly. If you consult the code of ethics, document that you did it. Consulted a national association of social workers, code of ethics standard 1.09c or 1.06d, or whatever standard is relevant, put it in your notes to demonstrate the good faith effort. If you consult the ethics guidelines adopted by your licensing board, document it.
If you consult your members of your peer consultation group, document it. Those notes are worth their weight in gold, if there's a dispute. I would assume it also helps if the consultant also has kept notes, has documented that conversation. That's a little tricky. There are, in my experience, two ways to get consultation from colleagues. One is from a supervisor.
Now, if you're in private practice, typically you don't have a supervisor, but if you work at a mental health center or a substance use disorder treatment program, typically you have a supervisor. Supervisors, I advise, should always keep notes, supervision notes. But if you are a member of a peer consultation group, I've never encountered a member of a peer consultation group who documents the conversation. When I get calls, I do lots of ethics consultation. I don't keep notes.
I don't get paid for that consultation. I don't work for anybody. I'm just trying to help out. I don't keep notes. And as a consultant on a case, I'm not expected to keep notes. A supervisor is. So supervision is vertical. Notes are expected. Peer consultation is horizontal. The person getting the consultation, I think, should absolutely document it.
But the person who's providing advice or feedback, there's no expectation that they should, geez, if I documented every phone call I get during a typical week, my hand would hurt. I'd be writing so much or typing. I don't do it. There are some occasional instances where it's a very high risk situation. I think I might end up being dragged into it as a witness, and then I'll keep notes. But that's very rare. Very rare. Okay. So I'm hearing you think something might be on the line.
It makes sense to call an attorney. Maybe start with your malpractice insurance, the free phone call, but maybe don't settle there. To be really clear about what your code of ethics says, as well as what your state requires of you. To consult with peers and or a professional consultant or supervisor, depending on your circumstance. What are some other things we can do to make sure we're taking care of ourselves and our clients? Great question.
Okay. So I would add a few other things very quickly. One is, actually, let me make a statement before I add those things. People listening to this might be thinking, oh my goodness, I'm likely to get sued in my career. I'm likely to have a board complaint filed against me. Here's the good news. The vast majority of behavioral health practitioners will retire without ever having been sued. Without ever having been named in a board complaint. That said, this is what I spend a lot of my time on.
There are lots of cases out there. But I don't want people to feel like there's a lawsuit or a board complaint hiding behind every bush. It's not true. Right. Right. I appreciate you saying that because sometimes when we talk about ethics, it feels very scary. And most things in life I don't know anything about, but I know the statistics on this. And we are pretty good risks in behavioral health. But there are a lot of cases out there and I want to prevent problems.
Okay. But back to the question, practice standards. So what does that term mean? In litigation and in board complaints, if there's a hearing or a trial, practice standards in your particular behavioral health profession are likely to be introduced as evidence. Those are different codes of ethics.
So for example, several years ago, I was invited to chair another national task force sponsored by several behavioral health organizations to develop state -of-the-art guidelines for use of technology, ethics-informed practice standards regarding delivery of remote services, communicating with clients on online social networking sites, doing online searches for information about clients without their knowledge or consent, all kinds of stuff.
And it took the task force that I chaired a year and a half and we produced and we tried to keep it short and we flunked because it's not short. It's 61 pages long, 61 pages of practice standards, ethics-informed use of technology. So another piece of advice is know the practice standards in your profession related to these kinds of issues. And those go beyond what's in the code of ethics.
Practice standards are usually developed by task forces appointed by the American Counseling Association, Marriage and Family Therapy, American Psychological Association, NASW, et cetera, et cetera. Okay. One more thing. When I go into a courtroom as an expert witness, and that's not my term, that's the court's term, expert witness.
I absolutely expect that attorneys on both sides of the case will have done a comprehensive literature search regarding whatever issue is in dispute, confidentiality exceptions, boundary issues, dual relationships, termination of services. Why do they do a literature search? For reputable books, reputable book chapters, reputable professional journal articles, not self-published stuff. They don't care about that.
The reason they do that search is if they find reputable literature that supports their theory in the case, they will introduce it as evidence. It becomes exhibit 13 for the plaintiff or exhibit 24 for the defense. It literally goes on the record as evidence of what we call the standard of care, and that's the league term. Standard of care is the measuring rod. Every, every, every lawsuit I get involved in, and I've been involved in a lot of them.
Fortunately, not as a party, but simply as an expert witness. Every single time I get involved in a lawsuit as an expert witness, I'm asked to review the clinical notes, the progress notes, the psychotherapy notes. Those are not synonyms, by the way. Those are different things. I'm asked to review correspondence more and more. I'm asked to review what's called ESI, electronically stored information. Every text message, every email message, it's all fair game.
And sometimes I'm asked to interview the practitioner as part of my expert witness work. And then the attorneys will always ask me, so Dr. Reamer, now that you've had an opportunity to review all of the evidence and the documents, and you've interviewed my client, the practitioner, in your professional opinion, did a practitioner meet the standard of care in social work, for example, or fall below it? That phrase, three words, standard of care is the measuring rod.
And it is defined very precisely by attorneys. It all started in the late 1800s, no kidding. A very famous court case that originated in the state of Maine that went to the Maine Supreme Court called Coombs versus Bede. And that case introduced this concept of standard of care, which today is as relevant to behavioral health as it was to the field of the law, the profession of the law in the late 1800s. Every single case, that's the measuring rod.
So literature, in addition to codes of ethics, in addition to practice standards, literature is part of the standard of care. So I recognize that the typical practitioner in a hot ethics crisis isn't going to say, find out, let me run over to the library and see what the literature says. I mean, who does that, right? The ones that intellectualize will do that. Or it's not an emergency, but the typical practitioner is not going to do that.
But I would say it's important to know that that literature, whatever's relevant, could end up being introduced as the measuring rod against which to assess what you did. And if you are not in a position to run to the library physically or now, typically electronically, find somebody who knows literature, get the consultant, the colleague who's really familiar with literature on boundaries and dual relationships and consult that person. Yes. Like you, right? Well, yeah, I suppose.
And people who do what I do. Other thing I want to mention in answer to your question is actually two things. One is, please maximize insurance coverage, maximize insurance coverage. I get it.