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Legal and Ethical Issues with Problematic Trainees

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1 Legal and Ethical Issues with Problematic Trainees
Association of Psychology Postdoctoral and Internship Centers Seventh Membership Meeting and Conference Portland, Oregon Stephen Behnke, JD, PhD APA Ethics Office April 17, 2009

2 www.apa.org/ethics $1000 Submissions due in December
The 2009 APA Student Ethics Writing Prize! $1000 Submissions due in December Roundtrip to 2010 APA Convention in San Diego, with three nights stay Student presents winning paper at Convention Paper is published in Ethics and Behavior

3 Legal and Ethical Aspects of Responding to Problematic Trainees
Five Thoughts Regarding Legal and Ethical Aspects of Responding to Problematic Trainees

4 Five Thoughts The relationship among law, ethics, and good psychology training Assessment and remediation plans The ethics of “Gatekeeping” Resources A note on the issue of stigma

5 Not to be construed as legal advice
Five Thoughts I. The relationship among law, ethics and good psychology training Not to be construed as legal advice

6 Good law, good ethics, and good psychology training practices go hand-in-hand

7 Central to both law and ethics
Notice and Process Central to both law and ethics

8 APA Ethical Standard 7.02 Descriptions of Education and Training Programs
Psychologists responsible for education and training programs take reasonable steps to ensure that there is a current and accurate description of the program content (including participation in required course- or program-related counseling, psychotherapy, experiential groups, consulting projects, or community service), training goals and objectives, stipends and benefits, and requirements that must be met for satisfactory completion of the program…

9 APA Commission on Accreditation Guidelines and Principles for Accreditation of Programs in Professional Psychology (2008) Domain E: Student-Faculty Relations 4. At the time of admission, the program provides the students with written policies and procedures regarding program and institution requirements and expectations regarding students’ performance and continuance in the program and procedures for the termination of students.

10 Competency Benchmarks Document (July 2004)
An Example of Notice: Competency Benchmarks Document (July 2004) Product of the Competency Benchmarks Work Group convened by the APA BEA in collaboration with the Council of Chairs of Training Councils

11 Competency Benchmarks Document
(July 2004) Students and trainees in professional psychology programs (at the doctoral, internship, or postdoctoral level) should know—prior to program entry, and at the outset of training—that faculty, training staff, supervisors, and administrators have a professional, ethical, and potentially legal obligation to: (a) establish criteria and methods through which aspects of competence other than, and in addition to, a student-trainee's knowledge or skills may be assessed (including, but not limited to, emotional stability and well being, interpersonal skills, professional development, and personal fitness for practice)...

12 Competency Benchmarks Document
An Example of Notice: Competency Benchmarks Document This document represents the product of the Assessment of Competency Benchmarks Work Group convened by the APA Board of Educational Affairs in collaboration with the Council of Chairs of Training Councils (CCTC)…(June 2007)

13 Education Directorate Competence as the cornerstone of ethics
Competency Initiatives in Professional Psychology Education Directorate APA Website Competence as the cornerstone of ethics

14 Competency Initiatives in Professional Psychology
Culture of competence emerging Competency initiatives by related organizations APA initiatives on assessing and defining competence Competency assessment toolkit for professional psychology Resources related to students with competence problems (remediation plan template)

15 A Note on Competency Initiatives in Professional Psychology
APA Ethical Standard 2.05 Delegation of Work to Others Psychologists who delegate work to employees, supervisees, or research or teaching assistants…take reasonable steps to…(2) authorize only those responsibilities that such persons can be expected to perform competently on the basis of their education, training, or experience, either independently or with the level of supervision being provided; and (3) see that such persons perform these services competently. Ensure that whatever trainees are asked to do, supervising faculty are competent to do (e.g., language)

16 Strong convergence between principles in law, ethics, and training
A good working relationship with your attorneys will help prevent situations from becoming adversarial Try to work with, not against, your attorneys; educate your attorneys about what you do Orientation of APA General Counsel: How can we help you achieve your goals?

17 Make clear to trainees in writing what is expected of them
Make clear to trainees what policies apply if they fall short of what is expected of them You be clear what policies apply if trainees fall short of what is expected of them

18 The Law of No Surprises What is expected of trainees?
What happens if a trainee falls short of expectations? Whether a particular trainee is meeting program expectations The status of a particular trainee in the program vis-à-vis a remediation plan

19 Be thoroughly familiar with the process your program has set forth
Follow your process carefully Document that you have followed your process Program faculty speak with one, not multiple, voices regarding process

20 Wester, S. R. , Christianson, H. F. , Fouad, N. A
Wester, S. R., Christianson, H. F., Fouad, N. A., & Santiago-Rivera, A (2008). Information processing as problem solving: A collaborative approach to dealing with students exhibiting insufficient competence. Training and Education in Professional Psychology, 2,

21 Principle C: Integrity
APA Ethics Code Principle C: Integrity Psychologists seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology…

22 An interesting article from the
Montana Kaimin

23 Professor Nabil F. Haddad Chair, Department of Psychology
A Quotation "We are our own worst enemies. In the guise of being humane, we fail to tell students the truth." Professor Nabil F. Haddad Chair, Department of Psychology University of Montana

24 Beware of the “rubber band” response to problematic trainees
How far is your rubber band stretched?

25 Gilfoyle, N. (2008). The legal exosystem: Risk management in addressing student competence problems in professional psychology training. Training and Education in Professional Psychology, 2,

26 Assessment and Remediation
Five Thoughts II. Assessment and Remediation

27 The Notion of “Problematic” Entails an Assessment

28 Every problem has a history and a context

29 McCutcheon, S.R. (2008). Addressing problems of insufficient competence during the internship year. Training and Education in Professional Psychology, 2,

30 How much of the variance belongs to whom/where?
A Question: How much of the variance belongs to whom/where?

31 Assess at individual and system levels
Forrest, L., Elman, N., & Miller, D. (2008). Psychology trainees with competence problems: From individual to ecological conceptualizations. Training and Education in Professional Psychology, 2,

32 Write a focused remediation plan
Beware of the “pot pourri,” “kitchen sink” and “more is better” approaches to remediation plans Write a focused remediation plan

33 Tie the remediation plan to your assessment of the problem
A trainee’s remediation plan follows from an assessment of the trainee’s deficits that follows from the program’s identification of competencies required for successful completion of the program

34 Three Assessment-related Questions:
How does a program assess a trainee’s competence? Do we ever really know what our trainees are doing? At the outset of the training program, would we ever consider assessing a trainee’s “baseline ethical understanding”

35 Baseline Ethical Understanding
Contact outside of sessions? Contact after therapy ends? Accepting gifts? Disclosing personal information to client? Self disclosures on the Internet?

36 Tie the remediation plan to your assessment of the problem
A Question: Which aspect of your trainee’s problem or challenge will this aspect of your remediation plan address?

37 Tie the remediation plan to your assessment of the problem
Focus on behaviors that need to change rather than diagnoses Remediation Plan Template

38 APA Ethical Standard 7.04: Student Disclosure of Personal Information
Psychologists do not require students or supervisees to disclose personal information in course- or program-related activities, either orally or in writing, regarding sexual history, history of abuse and neglect, psychological treatment, and relationships with parents, peers, and spouses or significant others except if (1) the program or training facility has clearly identified this requirement in its admissions and program materials or (2) the information is necessary to evaluate or obtain assistance for students whose personal problems could reasonably be judged to be preventing them from performing their training- or professionally related activities in a competent manner or posing a threat to the students or others.

39 A cautionary note regarding therapy as an aspect of remediation

40 APA Ethical Standard 7.05 Mandatory Individual or Group Therapy
When individual or group therapy is a program or course requirement, psychologists responsible for that program allow students in undergraduate and graduate programs the option of selecting such therapy from practitioners unaffiliated with the program. Faculty who are or are likely to be responsible for evaluating students' academic performance do not themselves provide that therapy.

41 The Ethics of “Gatekeeping”
Five Thoughts III. The Ethics of “Gatekeeping”

42 Training as “Gatekeeping” Gatekeeping involves:
1) A passage between 2) Two or more places with the 3) Authority to allow passage, or not, and the 4) Responsibility for that decision.

43 An Ethical Dilemma in Training
Principle A: Beneficence and Nonmaleficence vs Principle E: Respect for People’s Rights and Dignity Benefiting/Not harming the client vs. Allowing trainees to make their own mistakes, an inevitable and important part of their development

44 To the other trainees in the cohort
Gatekeeping involves considering and balancing multiple ethical responsibilities: To the public To the trainee To the profession To your program To the other trainees in the cohort Would you refer a close friend or family member to this individual?

45 Promoveatur ut Amoveatur
Beware of the Promoveatur ut Amoveatur Principle

46 The ethics of feedback in the gatekeeping process
A return to notice and process

47 APA Ethical Standard 7.06 Assessing Student and Supervisee Performance
(a) In academic and supervisory relationships, psychologists establish a timely and specific process for providing feedback to students and supervisees. Information regarding the process is provided to the student at the beginning of supervision. (emphasis added) (b) Psychologists evaluate students and supervisees on the basis of their actual performance on relevant and established program requirements.

48 Commission on Accreditation Guidelines & Principles (2008)
Domain E: Student-Faculty Relations 4. …Students receive, at least annually, written feedback on the extent to which they are meeting the program’s requirements and performance expectations. Such feedback should include: (a) Timely, written notification of all problems that have been noted and the opportunity to discuss them; (b) Guidance regarding steps to remediate all problems (if remediable); and (c) Substantive, written feedback on the extent to which corrective actions are or are not successful in addressing the issues of concern. In all matters relevant to the evaluation of students’ performance, programs must adhere to their institution’s regulations and local, state, and federal statutes regarding due process and fair treatment of students.

49 A significant challenge in training:
When should the program intervene and what intervention is most appropriate at that time?

50 Primarily remediation or discipline?
When should the program intervene and what intervention is most appropriate at that time? Primarily remediation or discipline? Your answer will have implications for your process

51 APA Ethical Standard 3.05: Multiple Relationships
Multiple multiple relationships exist within training programs, rendering an appropriate response complicated Multiple relationships can get in the way of implementing a good remediation plan

52 A potential impediment to responding to problematic trainees:
Beware of the impulse to be helpful and do good

53 Five Thoughts IV. Important Resources

54 Important Resources APA Ethics Code (www.apa.org/ethics)
APA Education Directorate (www.apa.org/ed) Association of Psychology Postdoctoral and Internship Centers (appic.org) APA Guidelines: Multicultural guidelines; Guidelines for working with older adults; Guidelines for psychotherapy with lesbian, gay, and bisexual clients. (www.apa.org) Your jurisdiction’s statutes and regulations Council of Chairs of Training Councils (www.psychtrainingcouncils.org/) Association of Directors of Psychology Training Clinics (www.adptc.org) Association of State and Provincial Psychology Boards (ASPPB.org)

55 A Note on the Issue of Stigma
Five Thoughts V. A Note on the Issue of Stigma

56 The Americans with Disabilities Act
Disability that substantially limits a major life activity Can complete essential requirements of program with “reasonable accommodations” Does not require change in nature of program, lowering program standards, undue expense

57 APA Office on Disability Issues in Psychology
Anju Khubchandani (202) How disability-friendly is your program?

58 A Question: Do you view working with a trainee with a disability primarily as an imposition or as an opportunity?

59 National Association of Law Students with Disabilities

60 Final Observations

61 First Final Observation: (Family Educational Rights and Privacy Act)
FERPA (Family Educational Rights and Privacy Act) Rarely an impediment to a good faith, reasonable disclosure to others in an educational institution with a need to know

62 Second Final Observation:
Consider responding to problematic trainees as a competence in an of itself Who in your training program has this competence? “To the extent we become better teachers, students will become better professionals” McCutcheon, 2008

63 Third Final Observation: An important subject to consider:
Legal and Ethical Aspects of Responding to Problematic Faculty Members and Supervisors “To the extent we become better teachers, students will become better professionals” McCutcheon, 2008

64 Fourth Final Observation:
Get students involved and active in professional associations!

65 Fifth and Final Observation:
APA Convention in Toronto Saturday, 4-5:50pm, Room 801B Thinking Together: APA and ASPPB Explore Where Ethics and Licensure Converge

66 (202) 336-5930 sbehnke@apa.org Thank You,
APPIC, for including the APA Ethics Office in APPIC’s Seventh Membership Meeting and Conference! (202)


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