Question: If a client refuses to sign my treatment contract, can I then provide services to that individual?
Answer: In general, no. Clinical mental health counselors (CMHCs) must respect client rights, and as stated in the AMHCA Code of Ethics (Code), Principle I.B.7.i, a basic right of clients is “to refuse any recommended services, techniques or approaches and to be advised of the consequences of this action.” Clients may, of course, give informed consent to treatment if they choose to do so. Code section I.B.2 provides excellent guidance regarding the informed consent process, and the disclosures that should be made to clients.
Question: When do I have the duty to warn of a threat by my client or a duty to protect against violence that may be committed by a client?
Answer: The Tarasoff duty to warn and protect against serious threats of imminent violence by a client has been adopted in various forms in state laws and licensing board Rules. CMHCs need to comply with their state law or licensing board Rules regarding the duty to hospitalize a client who is dangerous to others, in order to prevent threatened violence and to protect the potential victim. By doing this, you comply with Code Principle I.A.2.c which contains an exception to confidentiality “for the protection of life” and provides: “CMHCs are required to comply with state… statutes regarding mandated reporting.”
Question: I have been seeing a Mom and her children in counseling to deal with issues concerning parent-adolescent problems and divorce issues. Mom and Dad are separated. Mom’s attorney wants me to testify in court that Mom should have custody of her children. I have never met the husband, and know little about him, except for information provided by Mom concerning his drug problems and his acts of domestic violence. Can I testify as an expert witness for Mom in the divorce case?
Answer: No, a CMHC who is serving in a clinical role, providing treatment to a Mom and her children in family counseling, cannot also take on the role of forensic expert. To do so would violate Code principle I.D.4.g which prohibits CMHCs from evaluating for “forensic purposes, individuals whom they are currently counseling or have counseled in the past.” To express an opinion on custody, which Mom’s attorney has requested, would also result in a violation of Code section I.A.3 which prohibits CMHCs from having dual relationships in serving clients. A dual relationship would result if a CMHC served the same client in both a clinical and forensic role.
Mom’s attorney should ask the court to appoint an unbiased, objective, forensic evaluator; or the attorney can retain a forensic expert to evaluate custody issues and make recommendations to the court in the best interests of the parties’ children.
Question: Part of my practice as a counselor involves providing clinical supervision to people who are seeking licensure. What should I do to protect myself from liability, in case I am sued for the actions of a supervisee? For example, how could I defend myself if a therapist that I was supervising was having a personal relationship with a client—without my knowledge?
Answer: The best defense against any potential risk in a situation such as this is for the clinical supervisor to have a thorough Clinical Supervision Contract or Disclosure with the supervisee in compliance with Code section III.A. (See Appendix E, Clinical Supervision Disclosure Template, in “Essentials of the Clinical Mental Health Counseling Profession” for more information). Exploitative relationships, such as an intimate relationship between the supervisee and client are “strictly prohibited” according to Code section I.A.4. Thus, the AMHCA Code of Ethics is an excellent learning device in the clinical supervision process, and the supervisee’s commitment to comply with the Code assures that the clinical supervisor is not responsible if the supervisee crosses boundaries with the client without the supervisor’s knowledge, after the supervisee has promised to comply with the Code of Ethics.
Question: I have a client who is being seen in couples counseling. His unwillingness to make a serious attempt to cooperate with counseling has been an obstacle to the process of therapy. His flirtatious remarks to me make me very uncomfortable. I feel that I should refer this couple to another therapist, but I do not want to be seen as abandoning these clients. Can I terminate my services and refer the couple out?
Answer: Trust your judgment and refer the client couple to another CMHC. By doing this, you are not abandoning the couple, you are complying with Code section I.A.3.a which provides that “CMHCs make every effort to avoid dual/multiple relationships with clients”. Flirtatious clients can create any number of problems, even when the counselor is not crossing boundaries. By terminating treatment and referring the couple to another counselor, no abandonment occurs.
Question: In disclosing my fee to clients, am I required to inform them concerning my sliding scale or withhold that information until a client asks for it?
Answer: Informed consent is intended to be a transparent process in which information about treatment is disclosed to clients. Accordingly, CMHCs should disclose billing practices including a sliding scale fee in compliance with I.B.2.a of the Code, which requires disclosure of information to clients including “counselor credentials, issues of confidentiality, the use of tests and inventories, diagnosis, reports billing, and the therapeutic process.” Similarly, CMHC need to comply with section I.E.2, which provides that CMHCs “clearly explain to clients, early in the counseling relationship, all financial arrangements related to counseling.”
Question: I am a devoutly religious person, and I do not believe in divorce. When working with couples who have marital problems, I make every effort to preserve the marriage, and counsel my clients not to seek a divorce because of the guilt and emotional problems that this will cause the couple and their children. Is this permissible?
Answer: CMHCs cannot impose their values on others. The Code, section I.A.4.d, cautions CMHCs to be “aware of their own values, attitudes, beliefs, and behaviors, as well as how these apply in a society with clients from diverse ethnic, social, cultural, religious and economic backgrounds.” Then, of course, you must respect the client and be mindful that you are not imposing your attitudes, beliefs, or values on them.
Question: How do I handle confidentiality in conducting group therapy, and what do I tell group members will be the consequences if confidentiality is breached?
Answer: The Code provides that “in working with…groups, the right to confidentiality of each member should be safeguarded” according to section I.A.2.l. Inform each group member in the treatment contract or disclosure statement that group counseling is confidential, disclose the exceptions that apply, and also disclose that what is said in group stays in group, because the information is personal, private and confidential. Then, at the beginning of each group session, remind the members again that all information shared in sessions is confidential, and stays in group. If a member talks outside of group about what someone else had said in a session, then often the consequences are left up to the group to decide what should be done. However, the CMHC should reserve the right to determine if group counseling should be terminated for the member who violated another’s confidentiality, in order to prevent a repetition of the breach of confidentiality.
Question: When I engage in couples counseling, can I share information with the husband that is confided to me by the wife in order to facilitate communication between them?
Answer: The Code provides in section I.A.2.l: “In working with families…,the right to confidentiality of each member should be safeguarded.” When you meet with a member of a couple individually to obtain information for purposes of couples counseling, get an agreement immediately at the end of the session regarding what information can be shared to the other member of the couple, and what information may not be shared. Note this agreement in the session note for that meeting. This practice is better than a written “No Secrets” policy, which too often can lead to misunderstandings and to an inadvertent breach of confidential information.
Question: I am providing services online through e-mail with clients. Is this practice ethical? Are there any special disclosures that I need to give these clients?
Answer: Yes, at a minimum, two disclosures are needed regarding the security of email communication. First, in compliance with Code principle I.B.6.h., “unless email and text messages are encrypted or otherwise secured or confidential, the client should be informed of the risks and discouraged from using as a means to disclose personal information”. Section I.A.2.n states; “CMHCs take necessary precautions to ensure client confidentiality of information transmitted electronically through the use of a computer, e-mail, fax, telephone, voicemail, answering machines,” or other media such as video conferencing platforms. The second disclosure that should be made pursuant to I.B.6. concerns “the benefits and risks of entering into distance counseling” including “e-mail contact with a client.” The risk that a breach of confidentiality may occur if unencrypted e-mail is used is well known to most e-mail users, but should still be discussed in making this disclosure.
Question: For years, I have been asking whether I am required to report a client who is-positive with a communicable disease and may be exposing others to infection. Recently this issue arose, and my client refused to allow me to disclose to his family that he may be exposing them to serious infection. We have treated this as a clinical issue. Do I have a duty to report this situation, can I be required to disclose this to public health officials, or am I required to maintain my client’s privacy and the confidentiality of this information?
Answer: The first consideration its to make sure you are complying with your state law in determining whether you are required or allowed to report information regarding a client is infected with a communicable disease or, if on the other hand, your state law requires that such information be kept confidential. The Code addresses this issue in section I.A.2.c which provides: “The release of information without the consent of the client may only take place under the most extreme circumstances: the protection of life (suicidality or homicidality), child abuse, abuse of persons legally determined as incompetent, and elder abuse. CMHCs are required to comply with state and federal statutes concerning mandated reporting”. Under this section of the Code, a disclosure to protect against a potentially lethal infection may be appropriate when it is consistent with your state law.
Question: How should I disclose to clients the limitations on confidentiality, such as the mandatory reporting of suspected child abuse or neglect, and other exceptions to confidentiality?
Answer:The Code requires in section I.B.2 that CMHCs obtain informed consent for treatment by providing disclosures to clients, which include “issues of confidentiality”. These disclosures may be made in the “counselor’s professional disclosure statement” which should list the basic exceptions to confidentiality and any special exceptions that may apply in a particular client’s situation.
Question: Am I required to report another CMHC if I know that the counselor cannot practice competently or if I know of an ethical violation that a professional has committed?
Answer: The Code addresses this problem in II.A.7, which provides: “When CMHCs have knowledge of the impairment, incompetence, or unethical conduct of a mental health professional, they are obliged to attempt to rectify the situation. Failing an informal solution, CMHCs should bring such unethical activities to the attention of the appropriate state licensure board and/or the ethics committee of the professional association.” If the information about the unethical conduct of another professional comes from a client and constitutes confidential treatment information, obtain consent in writing in a release by the client before disclosing it.
Question: What am I required to do when I receive a subpoena for my records?
Answer: The Code provides excellent guidance in this situation in section I.A.2.d which states: “CMHCs are advised to seek legal advice upon receiving a subpoena in order to respond appropriately.” A CMHC should check with their professional liability insurer to determine if their insurance policy contains coverage for the counselor to retain an attorney to handle the subpoena, and provides that the insurer will pay the attorney fees involved. An attorney may need to file a motion to quash if the subpoena was not properly served, or to file a motion for protective order if the subpoena seeks confidential treatment information or records, and the client does not consent to these disclosures. A subpoena does not compel the production of counseling records and does not compel testimony by a CMHC: client consent is needed, in writing, in order to disclose confidential treatment information. A subpoena, properly served, does compel a CMHC to appear at the time and place indicated in it. Legal advice can assist a counselor to determine if the subpoena was properly served, and should assure that the CMHC’s response to the subpoena is proper, in order to avoid a breach of confidentiality through the disclosure of confidential information without client consent.
Question: My client has sent me a letter containing a written request for a copy of her treatment records. This client’s diagnosis is paranoid schizophrenia. I am afraid that she will feel stigmatized by this label, and that she will be confused not only by the diagnosis in her file, but also by the test data contained in it. Am I required to turn over to this client a copy of her chart?
Answer: Code section I.A.2.b apples in this instance. It states: “The information in client records belongs to the client and shall not be shared without permission granted through a formal release of information. In the event that a client requests that information in his or her record be shared, CMHCs educate clients to the implications of sharing the materials.” Some state laws require that health care providers and CMHC give a copy of their treatment records to clients, upon request; however, many state laws agree with HIPAA standards which provide that the counselor’s “psychotherapy notes” need not be shared with clients, who are entitled to a progress report, which is a treatment summary. Disclosure to this client of her treatment notes and records could be harmful to her, due to the client’s inability to process diagnoses, labels or discussions of her history. Thus, if state law allows a CMHC to provide the client with a treatment summary in this instance, it would undoubtedly be an appropriate judgment on the part of the CMHC to do that.
Question: I have several clients in my drug and alcohol agency who are indigent and cannot afford to pay me. Can I put them to work for me in my agency, and trade services with them?
Answer: This kind of arrangement is strongly discouraged as it can be exploitive as described in I.A.3. In Code section I.A.3.a, “CMHCs make every effort to avoid dual/multiple relationships with clients that could impair professional judgment or increase the risk of harm. Examples of such relationships may include, but are not limited to, familial, social, financial, business, or close personal relationships with the clients”.
Putting these clients to work in the agency would create dual relationships between the counselor-client and employer-employee. Supervising the client in the workplace could lead to foreseeable problems. Code provision I.E.2.a states that “CMHCs usually refrain from accepting goods or services from clients in return for counseling services, because such arrangements may create the potential for conflicts, exploitation, and distortion of the professional relationship. However, bartering may occur if the client requests it, there is no exploitation, and the cultural implications and other concerns of such practice are discussed with the client and agreed on in writing.” Bartering is problematic because it can only occur “if there is no exploitation”, and whenever a client complains to a licensing board that they were exploited in such a situation, the client will be believed, and the counselor may be sanctioned for engaging in a dual relationship resulting in harm to the client.
Question: I have a client who continues to schedule appointments with me every week, even though I have suggested that she does not need counseling any longer. She says that it makes her feel better and that she enjoys our interaction. What should I do?
Answer: Code section I.B.5.b applies in this analysis: “CMHCs may terminate a counseling relationship when it is reasonably clear that the client is no longer benefiting, when services are no longer required, when counseling no longer serves the needs and/or interests of the client, or when agency or institution limits do not allow provision of further counseling services”. Clients can become dependent on counselors and counseling, which is not healthy as it does not promote client autonomy. Start by suggesting a decrease in the frequency of sessions, going first to every other week and then once a month. This should discourage dependency. Discuss her progress in treatment, and suggest additional community resources that might be helpful.
Question: I have a client who has not been paying for his sessions. I know that he can afford to pay, because he has a good job, drives an expensive car, and is always well-dressed. What can I do?
Answer: The AMHCA Code provides that “CMHCs may terminate a counseling relationship when clients do not pay fees charged” according to section I.B.5.c. “In such cases referrals are offered to the clients” in order to prevent abandonment of the client. If the CMHC intends to use a collection agency to obtain payment of treatment invoices, the CMHC must first disclose the intention to use a collection agency, and try to work out a payment plan, an approach that can be used prior to terminating the professional relationship with the client.
Question: I know that doctors carry pagers, and that they have other physicians to take calls for them after hours when the doctor is not available. Are counselors required to do the same? Many of my colleagues have messages on their answering machines that direct callers to go to the nearest hospital emergency room or call 911 if they are in crisis. Do counselors have to be available to their clients 24/7?
Answer: The Code does provide that assistance be “given in making appropriate arrangements for the continuation of treatment, when necessary, during interruptions such as vacations and following treatment”, according to section I.B.5.a. Regarding after hours calls or texts from clients, be aware that some managed health care companies enter into fee for service contracts with CMHCs which require them to be available to respond to calls from the insured/client after hours in case of a crisis or emergency. Check any provider contract carefully to see if it has such a requirement, and comply with the contract if it does.
It is a generally accepted practice, however, in the absence of such a contract, for CMHCs to inform clients to call 911 or to go the nearest hospital Emergency Room for treatment in the event of a crisis. In general, that is the safest approach, since CMHCs are not available on a 24/7 basis to triage client’s problems and emergencies after hours, and clients need to know what to expect in these situations.
Question: Do I need a Consent Form for clients who are doing telehealth?
Answer: Yes, you should use a Consent Form which obtains informed consent for the telehealth treatment process and describes the process. According to CMHC Code l. B.2. Clients have a right to understand what to expect which include telehealth. Most States have adopted laws regarding telehealth, and many state licensing boards have issued Rules, Regulations or Policies concerning telehealth by licensed mental health providers. Please review any laws or board rules that apply to you so you can be sure to comply with them in preparing a Consent Form and in obtaining informed consent from clients.
Question: What issues should be raised or what disclosures should be made in providing informed consent to clients receiving telehealth?
Answer:The Consent Form for telehealth should be used in addition to your standard client disclosure statement or form used to obtain informed consent for treatment. If a client has already been in treatment with you before beginning telehealth, have the client sign the Consent Form for Telehealth, in addition to having signed your standard treatment contract.
The elements of informed consent for distance counseling must include any disclosures for telehealth required by your state law or by your licensing board’s rules and regulations. In addition, the Consent Form should disclose: The benefits and risks of telehealth; the confidentiality rules that apply, including a disclaimer that no guarantee can be made that electronic communication will not be compromised; the fact that written notes of treatment will be kept, just as if you were doing in-person therapy; and the fees that will be charged, which should be the same as those for face-to-face counseling. Although most health insurers are covering telehealth, you should disclose that health insurance may not cover this treatment. Informed consent needs to include an emergency plan in the event of a client crisis: the client should be encouraged to disclose any thought of self-harm and any history of suicide attempts or of hospital treatment for suicidal thoughts. In case of an emergency, the client should sign a release authorizing an emergency contact to be involved with you; and a referral for hospital evaluation and treatment should be prepared and included in the Form. A reminder Section l.B.2.c. states that informed consent is ongoing and needs to be reassessed throughout the counseling relationship.
Question: How should I get clients or client representatives to sign my Consent Form for telehealth?
Answer:You can have clients sign the Form, scan it and email it to you, if they have the proficiency to do so; they can type their name on the Form as an e-signature; or if you are using video conferencing, a client can sign the Form in front of the camera so you can take a screen shot and then document in your Note for the session that the client signed the Form.
Question: Can I practice telehealth across state lines in a jurisdiction where I am not licensed?
Answer:It is not advisable to practice therapy in a jurisdiction where you are not licensed. CMHC need to be familiar with state laws and regulations in both states in which services will be rendered (CMHC Code B.6.f.). In some states, it is a crime to practice as a health care provider or therapist if you are not licensed or approved to provide treatment in that state. Insurance coverage may not apply to claims which involve a criminal act. You may be able to contact the other state to seek approval to provide telehealth across state lines, and you need to document any such authority carefully.
Question: When is telehealth not appropriate for a client?
Answer: When a potential client is in crisis, the person is not appropriate for telehealth. If the crisis is imminent, such that the individual is imminently suicidal, dangerous to self, or dangerous to others, then the person needs to be referred immediately to a hospital for crisis evaluation and treatment. CMHCs are not required to provide services via TSCC or may decide not to offer services based on appropriateness (B.6.c).
Question: What are good resources for learning the legal and ethical standards for telehealth?
Answer: In order to comply with standards for telehealth, consult your state laws and licensing board rules and regulations (B.6.e.). In addition, consult the Codes of Ethics for professional associations such as the American Mental Health Counselors Association (AMHCA), the American Association for Marriage and Family Therapy (AAMFT), the American Psychological Association (APA), American Counseling Association (ACA), and the National Association of Social Workers (NASW). The U.S. Department of Health And Human Services (HHS) has adopted policies during the Covid-19 crisis to make telehealth in general an easier process, one in which the HHS Department states it will not strictly enforce HIPPA Regulations regarding the platform used for telehealth and telehealth. The HHS website includes FAQs for dealing with Covid-19 in the home and in the workplace, which are very practical and provide the guidance that the CDC has issued for the safety of the public. Of course, workshops and webinars on telehealth are offered by professional associations at national, state and local levels, online.
Question: What if a client or other person sues me and claims that they caught Covid-19 at my office?
Answer: You would be well advised to maintain both professional liability insurance coverage and also premises liability coverage. Both of these protect insureds in the event of a negligence claim that is covered by the insurance policy. To avoid any type of liability claim, use care. Before you reopen your office, follow state and local guidelines for reopening a business. Take care to follow the national and the local guidelines for safety that are issued by CDC, by HHS, by state and local governments, and by your state licensing board. That should enable you to clean your office space as recommended by all the guidance regarding safety; to wear protective clothing appropriately, including face masks and gloves, as recommended; to practice social distancing; and to follow other reasonable guidelines and policies for reopening and maintaining an office.
Question: I am a grief counselor and too many of my elderly clients had spouses who died from Covid-19. Their loss is made worse by the circumstances attendant to the death and the fact that these clients could not be with their spouse in the hospital with they died. One of my clients is planning to do counseling with me, using her cellphone. She does not have a computer. She says that she mailed all the consent forms to the agency a week ago; staff inform me, however, that only a signed treatment contract was received, but not the Consent Form for Telehealth. What can I do? This grieving woman needs help.
Answer: Make sure that your client reads her Consent Form and agrees with it. So long as your state does not mandate (B.6.e) the signing of a Consent Form for Telehealth by clients, you can proceed with grief counseling as soon as the client tells you that she consents to the process. Document your client chart with the fact that you discussed the telehealth process with the client, and she understood the disclosures and wants to proceed with telephone counseling. Also document that your client signed the Treatment Contract, which she had received and returned to the Agency.