1. Legal & Ethical Issues in Couples Counseling Robert G. Madden, LCSW, JD Professor & Chair Department of Social Work & Latino Community Practice University of Saint Joseph 860.231.5350; cell: 860.304.3776 rmadden@usj.edu

2. Core Issues Best Practices ◦Practice Policies Family Law Processes Request for Information Responding to Subpoenas Testimony Liability Risks

3. Practice Policies Defining the Client 1. The relationship is the client 2. Each individual is also a client Managing information shared by one party in individual session?

4. Individual Sessions in Couples Work Ethical mistakes, poor judgment Managing disclosures Clarity in intake process 1.There are no secrets 2.Therapist will keep secrets confidential 3.It depends

5. Individual Sessions in Couples Work It depends: 1. Does the information adversely affect relationship? 2. Does disclosure have therapeutic benefit? 3. Does disclosure put anyone at risk? (Pukay-Martin, 2014)

6. Practice Forms Intake Forms ◦Policy on cancelled or missed appointments ◦Policy on testimony or other court involvement ◦Policy parents waiving rights to have copy of adolescent’s record/case notes ◦Clear fees/insurance practices ◦HIPAA protections/process

7. Informed Consent Couples: Content of Form Detailed statement of treatment purpose Statement on managing information in couples work Right to refuse and withdraw Costs/benefits/risks of treating/not treating Acknowledgment statement signed

8. Documenting Individual Sessions If you use written-out or printed case notes, separate page. If joint notes, write with awareness that the notes may at some point be subpoenaed and available to both parties.

9. Confidentiality Each party retains privilege over information shared in individual sessions. Use intake/informed consent to review Attend to boundary issues/conflicts

10. CGS sect. 52-146p In circumstances where more than one person in a family is receiving therapy, each such family member shall consent to the waiver. In the absence of such a waiver from each such family member, a marital and family therapist shall not disclose communications with any family member.

11. Confidentiality and Privacy: Privileged Communications Jaffe v. Redmond (U.S. Sup.Ct.,1996) ◦confidentiality essential to the work we do as mental health professionals. ◦Privilege serves the public interest ◦Strong statement of support for privacy State Privilege Statutes ◦Not absolute – Qualified privilege ◦Exceptions written into language and limited

12. Confidentiality and Privacy: Intentional Disclosures Allowed Exceptions Duty to protect/warn Mandatory reporting Supervision Consultation – No identifying information Collections

13. Duty to Warn/Protect Threat of violence assessed as: ◦Serious and life threatening ◦Foreseeable ◦Imminent Identified or Identifiable potential victim Analogous duty for suicidal clients ◦Conducting a thorough assessment of risk ◦Notice to support systeml/family

14. Allowable Disclosures Must be limited in scope Only the information necessary to accomplish the purposes of the disclosure

15. Common Practice Dilemmas in Couples Work Child Custody/divorce Mixed clinical records Mandated reporting Responding to release of information requests

16. The Seduction Threat When one party continues after failed couples work Client may present partner as the cause of problems May try to convince you: Such a good parent Evidence is as good as its source

17. Forms: Authorization to Obtain/Release Clinical Information All written and spoken communications are protected Signed release required (HIPAA compliant form) Dated, to whom, what information, expiration date, limitations, special language for some protected information: ◦HIV/AIDs ◦Drug/Alcohol Treatment information

18. Documentation Guidelines Write to enable another professional to understand your practice approach & pick up the case at any point in time. Remember that your records represent you and your professionalism.

19. Electronic Communications Risks of email correspondence Social media and ethics/boundaries Managing professional relationships and practice communications

20. Online Practice Options Skype or other electronic venues What state is your client in? Responding to emergencies Video conferencing with family members

21. Clinical Documentation Documentation Risks: ◦Proceeding with caution

22. Documentation: Logic model of record keeping 1. Intake information sufficient to the purpose of the work; referrals 2. Assessment that flows from the intake; initial and more formal 3. Treatment plan based on the assessment; revisit and update 4. Case notes: presentation/status of goals, plan and responsible parties 5. Termination summary/closed case note

23. Collaborative/Concurrent Documentation Integrating Clinical Practice & Documentation Documentation has Become “The ENEMY” Clinicians report :documentation competes with time spent with clients

24. Collaborative Documentation Time Savings Project outcome data: can save from 6-8 hours per week for full time staff. Up to 20% increase in capacity!

25. Collaborative Documentation Currently we count on “no- shows” to complete paperwork Clinician’s “Paper Life” is divorced from their “Clinical Life” Goal is to integrate documentation and the clinical process

26. Progress Notes/Case Notes Taking Notes: Interact normally with the couple during session. At end of session: (Last 10 minutes) Review and write down the important parts of the session today. Status of Goals: Where do things stand? Homework: Who is doing what?

27. Objectives, Measureable Collaboratively develop measurable changes that will be: apparent to both clients meaningful to the couple achievable -reasonable amt. of time assessed in an objective way through observations, client report, scales, etc.

28. Records Handling Department of Public Health (DPH) Regs. § 19a-14-42). An individual provider must retain a patient's medical records for seven years after the last treatment date, or three years from the patient's death.

29. Records Handling Password protected/encrypted for transmission of health information Death or disability of clinician ◦Arrangements for handling client notification and referrals ◦Access to records Closing a practice ◦Records retention ◦Malpractice insurance coverage

30. Responding to Client Request: Release of Record When counseling does not save the relationship: Legal action to dissolve Child custody Client may hope your testimony helps case

31. Letter from one party’s legal counsel HIPAA consistent form signed and attached, requests: ◦Clarify certain facts about therapy ◦Attest to client’s cooperation or attendance at therapy sessions ◦Notify you of intent to call you as a witness ◦Send a copy of the entire record

32. “Send the record to my lawyer” To send the full couples file, required to have both signatures Why lawyers hate treatment summaries Sending out redacted records

33. Avoiding Conflict of Interest What to do when you really do blame one party? Advocating for one member at the derogation of the other member’s interests: conflict Generally: decline voluntary involvement in case

34. Subpoenas subpoena duces tecum ◦Notify clients of request and seek guidance from each ◦Ensure you are aware of who issued the subpoena ◦motion to quash is one option ◦motion for protective order – requiring information to be kept private after disclosure in discovery

35. Subpoenas ◦Differentiate judge-issued subpoenas from lawyer requested subpoenas ◦Client interests are generally aligned with ours

36. Responding to Subpoenas When missing signed authorization from one party: ◦Must appear & bring copy of record if instructed ◦Copy of record in sealed envelope ◦Say to judge: “The information sought is protected by privilege and I do not have a valid consent to disclose the requested information.”

37. Responding to Subpoenas In camera review Judge will take copy to chambers ◦Relevance, materiality, unique ◦Must make a legal finding ◦Can order full or partial disclosure ◦Limit questions

38. Testimony Depositions Trial process ◦Elements of a case ◦Purpose of your testimony ◦Reviewing the file ◦Meeting with lawyer to prep ◦Do you need your own lawyer?

39. CT Apology Statute Sec. 52-184d. Inadmissibility of apology made by health care provider to alleged victim of unanticipated outcome of medical care. ◦any and all statements, affirmations, gestures or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion or a general sense of benevolence

40. Competency & Guardianship Later life/disability couples counseling Prioritizing and supporting the wishes/intent of our client Recognizing abuse of authority, negligent practice by conservators Advocacy for whatever level of self- determination the client is capable of

41. Competency/Substituted Judgment Competence: a legal designation that recognizes that persons have the ability to perform certain legal tasks such as contracting or making a will. Capacity: a clinical determination of a person’s ability to make decisions about treatment or other matters.

42. Conservatorship Voluntary representation: A person may ask Probate to appoint conservator of person or estate, no need to prove incapacity. ◦Power of Attorney ◦Must be competent to appoint POA Involuntary Representation: Probate court will appoint a conservator if findings are that the person is incapable of managing own affairs (estate); or the person is incapable of caring for self (person). ◦Medical evaluation required for incapacity.

43. References Bass, B. A., & Quimby, J. L. (2006). Addressing secrets in couples counseling: An alternative approach to informed consent. The Family Journal: Counseling & Therapy for Couples and Families, 14, 77-80. Madden, R. G. (1998). Legal Issues in Social Work, Counseling & Mental Health: Guidelines for Clinical Practice in Psychotherapy. Sage. Madden, R. G. (2003). Essential Law for Social Workers. Columbia University Press. Madden, R. G. (2007). Liability and Safety Issues in Human Service Management. In Aldgate, Healy, Malcolm, Pine, Rose & Seden, Eds. Enhancing Social Work Management. London, Kingsley. National Association of Social Workers. (1999). Code of ethics of the National Association of Social Workers. Retrieved from http://www.socialworkers.org/pubs/code/default.asp http://www.socialworkers.org/pubs/code/default.asp Polowy, C., et al. (2005). Social workers & subpoenas. Legal Defense Fund Law Notes Series. NASW. Washington, DC: Author. Pukay-Martin, N.D. Ethical considerations in working with couples: Confidentiality within the couple National Register of Health Service Professionals. Retrieved from: http://www.nationalregister.org/pub/the-national-register-report-pub/the-register-report-fall- 2008/ethical-considerations-in-working-with-couples-confidentiality-within-the-couple/ Reamer, F.G. (2003). Social Work Malpractice and Liability: Strategies for Prevention (2nd ed.). New York: Columbia University Press. Reamer, F.G. (2006). Social Work Values and Ethics (3rd ed.). New York: Columbia University Press. Reamer, F.G. (2006). Ethical Standards in Social Work (2nd ed.). Washington, DC: NASW Press. Reamer, F.G. (2001). The Social Work Ethics Audit: A Risk-management Tool. Washington, DC: NASW Press. Reamer, F.G. (2001). Tangled Relationships: Managing Boundary Issues in the Human Services. New York: Columbia University Press. Rubin, J. (2000). Confidentiality issues in treatment of couples in marital therapy. 13 Matrimonial Strategist, 13 (11).

44. Contact Information rmadden@usj.edu familymediator@comcast.net Office: 860.231.5350 Cell: 860.304.3776