USING THE DSM-IV-TR LEGALLY AND ETHICALLY: BEST PRACTICES LEARNING OBJECTIVES This is a post graduate level continuing education ethics course. After completing this course, psychotherapists will be able to gain and apply knowledge about the following topics: • Ethical diagnosing when using the DSM-IV-TR system • Legal and ethical standards to minimize the risk of malpractice civil suits • The Five Axial System of Diagnosis • Potential harm related to legal and ethical dilemmas when using the DSM • Patient welfare and protection of patients' rights when diagnosing • Accurate billing practices • Accurate use of diagnosis • Avoidance of fraudulent or misleading billing with managed care companies • Awareness of current issues of confidentiality, privilege, and record- keeping, with special regard to diagnosis • Multicultural challenges when using the DSM • Familiarity with ethical decision-making models AUTHOR DISCLAIMER The material contained in this course is the professional and personal understanding of the course author’s interpretation of the experts that have been cited throughout the text. Should any person wish to use this material for any purpose other than basic continuing education as it is presented here, that person should seek the original sources for his or her personal understanding. The authors cited are accepted and published experts in the field of legal and ethical issues in psychology, marriage and family therapy, and social work. Cited herein are current opinions, case law when applicable, state statute. Interpretations of the 2002 APA Ethics Code is primarily gleaned from the fine work of Celia B. Fisher, Ph.D., Chair of the APA Ethics Code Task Force that completed the current revision (Fisher, 2009). This is IN NO WAY a legal document nor does it offer legal advice or legal interpretations other than those of other experts as cited. This material is not meant as a personal or clinical consultation, nor is it meant to be substituted for contact with an ethics committee, attorney, or professional consultant. How to Display or Print the Ethical Standards To take this course you will need access to the various ethics codes that apply to your license. The easiest way is to either download and print out the ethics code, or to place it on your desktop, or to use the links throughout the course while taking this course. Links to the Standards are provided at appropriate times during the course, which will also bring up a separate window. Since this applies to each section of the course, it will only be stated once in this beginning Section A. LEARNING OBJECTIVES FOR INTRODUCTION • Learn the “four truths” about professional practice • Gain familiarity with various ethical decision making models • Review common strategies to justify unethical behavior • To gain familiarity with ethical decision making models THE FOUR TRUTHS ABOUT PROFESSIONAL PRACTICE TRUTH ONE “You will make mistakes” begins the preface of the Bennett et al. (2006, p. 5) book published by the American Psychological Association Insurance Trust. Psychotherapists are not perfect and in a particularly litigious environment, therapists must be realistic in planning for errors and mistakes. A solid ethical decision making model, as discussed in this section, will give a foundation on which to base decisions and clarify how and why something was done in a specific manner. Therapists will not be deemed unethical simply for making a mistake “as long as you based your decision on generally acceptable clinical reasoning and knowledge” (Bennett et al., 2006, p. 5). The goal of this course is to prepare therapists to avoid making the big mistakes and to minimize the consequences of smaller mistakes. Licensing boards and ethics committee know therapists to make acceptable, legitimate mistakes and expect them to rectify these by gaining further education and consultation. TRUTH TWO “You can’t help everyone” is the second key point made by these authors. Therapists all wish and intend to help a client move forward, ease his or her pain, gather momentum for change and increase the quality of life in as many ways as possible. However, it is not necessarily the fault of the therapist if these things fail to occur within a reasonable amount of time. Knowing when to try another type of treatment rather than the particular theoretical orientation being used currently is part of the process. However, knowing when to refer a client to another helping professional is prudent and ethical. Thus, doing a thorough evaluation prior to agreeing to take a new therapy client is mandatory. TRUTH THREE “You won’t know everything” is the third element of these authors risk management and decision making model. It is part of the ethical responsibility to know when to consult, take continuing education courses, and to know one’s limitations. “You cannot go it alone.” Practicing in isolation exposes a therapist to a higher degree of risk with regard to legal action or ethical complaints. Unfortunately, this is a often a solitary profession where therapists see one client after another without outside contact. Over estimating one’s competence is a mistake that occurs when the therapist fails to recognize his or her need for outside feedback. These authors use the catchy phrase “Outliers risk becoming Outlaws.” By this they are referring to therapists who fail to seek consultation, a second opinion or stay current on best practices. TRUTH FOUR “It is helpful to have a proper mix of confidence and humility.” Here Bennett et al., mean therapists must accept their limitations, pool their resources by consultation, and benefit from collective wisdom of colleagues. Using creativity in seeking advice, continuing education and support from other therapists reduces the risk of errors. QUESTION Licensing boards and ethics committees expect therapists never to make any mistakes: A. True B. False ANSWER: B-True. One will not be deemed “unethical” for making a small, legitimate mistake. However, one must have an appropriate decision making model to fall back on. (see “Introduction” section for review) QUESTION Licensed psychotherapists can not be expected to help everyone, no matter what the presenting problem: A. True B. False ANSWER: A-True. Therapists are not expected to treat everyone just by virtue of having a license. (see “Introduction” section for review) INTRODUCTION TO ETHICAL DECISION MAKING Too often therapists fail to approach ethics as a part of everyday planning within their clinical work. Sometimes it is an afterthought to psychological assessment, treatment planning, marketing, planning coursework for classes, and other forensic or consulting work. Fisher (2009) notes that ethical planning should be based upon familiarity with the ethical standards of one’s license, professional guidelines in their specific area of expertise, along with state and federal laws. Additionally, one must base ethical decision making on organizational and institutional policies that re applicable to their work. Ethical decision making should be at the center of any good treatment plan. Ethical Standards These are typically known as the “Ethics Codes” by most therapists. Familiarity with the rules of conduct set forth in each licensee’s code is the primary step to preventive measures in the profession. Knowing the particular codes that apply to one’s client and to one’s license helps avoid harm, injustices, and violations of the civil rights of patients that often lead to ethical and licensing complaints Fisher (2009) give the example of therapists who are aware of and familiar with the ethical standards of confidentiality will take steps to develop an appropriate procedure for protection of confidentiality and privilege. They will also use appropriate and well considered informed consent techniques explaining the limitation of confidentiality. These therapists will also know the proper agencies to contact and the proper steps to take when a breach of confidentiality is necessary to protect the client or society at large. Guidelines Therapists who have awareness of proper guidelines in working with difficult or dangerous clients are at decreased risk for ethical or licensing complaints. Knowledge of the current literature, standard of care, and expert opinion is mandatory in working professionally. Lack of familiarity with current standards when working with, for example, Post Traumatic Stress Disorder, leaves one vulnerable to a complaint should the client fail to improve or their symptoms worsen. Laws, Regulations and Policies and Standard of Care Therapists are required to remain abreast of current laws and case laws with regard to client care. Generally, the standard of care is defined by state statute (i.e., Penal Code 11166, child abuse report law) and the current ethics code of the profession. Another factor that establishes the standard of care in a profession is something called “case law”. Case law is a ”collection of reported cases that form the body of jurisprudence within a given jurisdiction” (Black’s Law Dictionary, 1996, p. 84). This means that when judges adjudicate a case in an appeals court, it becomes precedent, and must be followed thereafter. Case law is just as powerful as statute and must be followed just as closely as law that has progressed through the legislative process. Failure to gain awareness of case law that currently dictates protocol is considered unprofessional practice Regulations are different from laws or case laws in that they dictate what is required specifically by the licensed therapist. They are “rules or orders having legal force issued by an administrative agency or a local government” (Black’s Law Dictionary, 1996, p. 532). Familiarity with legal and organizational rules is essential for informed ethical decision making. Reduce but not Eliminate Experts in ethical decision making (Barnett, Rosenthal, Behnke & Koocher, 2007; Fisher, 2009) note that well-informed ethical planning will reduce but cannot possibly eliminate ethical challenges emerging out of clinical work as therapists. There are consistently unexpected events that are unique to every case.