Legal Issues In Psychotherapy Research Paper

2. Importance Of MHPs Knowing The Law

Despite the law’s pervasive influence, most MHPs do not know about or understand most of the laws affecting the operation of their practices, their services and their clients. This is due in part to the difficulty of understanding legal terminology, and in accessing the many different and applicable sources of law. This state of affairs is unfortunate because MHPs may not gain the benefits that the law may provide to them or their clients, and they may not be able to fully meet their clients’ needs (e.g., Rothstein 1997). In turn, legal knowledge can increase MHPs’ capability for handling their clients’ distress (e.g., Shuman and Smith 2000). For example, MHPs who obtain legal information are better equipped to facilitate the appointment of a guardian for an abused child or a legally incompetent person (Tor and Sales 1996), and can help correct distorted beliefs about what may happen during their legal proceedings.

Not knowing the law is also potentially harmful in an era of increasing professionalization and litigiousness (e.g., Stromberg et al. 1988). MHPs run the risk of liability for professional practice that the law designates as inappropriate (e.g., divulgence of certain professional information when the law specifies it as confidential, or for not divulging certain professional information that the law requires to be reported).

3. The Law Affecting MHPs Business Matters And Responsibilities

Before engaging in the practice of psychotherapy, MHPs need to attend to their business matters and responsibilities, including: ensuring that they are properly licensed, deciding on the form or structure of their business, and implementing procedures for dealing with financial matters and confidential client information. Some of these business issues arise during the course of a MHP’s practice (e.g., release of confidential information). The law typically affects all of these business issues.

3.1 Legal Credentialing And Licensure To Practice

In the United States, specific statutory and administrative laws govern each of the licensed mental health professions (e.g., Hogan 1979). The law of credentialing and licensure to practice is typically organized by discipline (e.g., psychiatrists, psychiatric nurses, psychologists, subdoctoral and unlicensed psychologists, school psychologists, social workers, professional counselors, chemical dependency substance awareness counselors, school counselors, marriage and family therapists, hypnotists, polygraph examiners).

These laws have a number of different functions. First, they establish licensing boards for MHP professions. In addition, some States have created overarching boards that have oversight of MHPs from all disciplines, in order to standardize practices across disciplines. In general, overarching and disciplinespecific boards operate similarly. Second, the laws specify licensure qualifications (i.e., education, experience, testing of competence, good character), and procedures and exceptions to licensure (e.g., for those unlicensed MHPs who are supervised by a licensed MHP).

Finally, the laws regulate MHPs’ conduct, and prescribe sanctions for violations. The regulation of practice generally specifies what a MHP can and cannot do. As to what MHPs can do, the law will typically define the permissible scope of practice for licensed professionals (e.g., conduct psychotherapy, dispense medications). As to what MHPs cannot do, the licensure law will describe the powers of the agency or board to investigate and adjudicate violations of the law, specify reasons for sanctioning those found in violation of the law, and provide penalties for sanctioned professionals.

3.2 Legally-Defined Business Arrangements

MHPs can organize their practices in a number of different forms, many of which are subject to legal regulation (see Sales and Miller 2001). Sole proprietorships involve a MHP being the only owner of his or her mental health practice, and usually do not require a legal application for a special business form. Certain MHPs may form professional corporations that may offer certain tax, insurance, and other practice benefits but require following legal procedures.

More types of business forms exist for those MHPs who choose to work with other MHPs. When two or more people enter into a ‘for-profit’ agreement as coowners, a partnership is formed. These partners agree to combine their resources in order to undertake projects that would be financially difficult for one person, and to share responsibility for each other’s acts. Recent developments in the law of some States allow for limited liability partnerships or corporations, in which there are a number of limited partners or shareholders whose financial commitment and liability is limited. Finally, MHPs may form a nonprofit or not-for-profit organizations to provide mental health services, including education, research, and/or inpatient or outpatient therapy, in a community health center, private hospital, or other setting.

The structure and/organization of MHPs’ practices are also affected by the health care entity with which MHPs and their clients are affiliated. The law may control certain health care provider arrangements in the US (e.g., MHPs who work for managed care companies), and government-run health services in other countries (e.g., Great Britain). For example, in the US, Health Maintenance Organizations (HMOs) provide services to patient-subscribers (an individual or group) in exchange for a predetermined fixed premium. The law encourages HMOs to provide persons with competitively priced, alternative healthcare delivery and requires HMOs to offer basic, comprehensive healthcare services. The law varies by State as to whether HMOs are also required to cover mental health services, and whether only certain professionals are allowed to provide services to HMOs.

The liability of HMOs is an area of the law currently in development, a matter of much controversy. An HMO can be sued, and possibly may be held liable, for harm caused by the acts of participating providers in the course of furnishing such services. Another potential source of liability may arise from an HMO’s refusing to allow for certain services in a particular case (e.g., utilization review that result in patients not being admitted or treated, or being discharged early). This could be a particular problem for MHPs if HMO precertification reviewers refuse to approve hospitalization, and a distraught patient then assaults another or commits suicide.

3.3 Financial And Contractual Matters

There are economic and contractual components to the relationships of MHPs with their clients as well as with the entities that may pay for or reimburse them for services. These issues are raised when MHPs are forming a relationship with a client and/or third-party payor; considering which services to provide; wanting financial payment for their services; and doing their taxes.

Since the MHP–client relationship is economic and contractual as well as therapeutic, MHPs should prepare a formal written agreement in order to protect the rights and interests of both parties at the outset of services. The client has the right to receive confidential, competent, and appropriate services that are performed according to professional standards. In return, the MHP should receive the client’s cooperation with the service’s plan (e.g., treatment) and payment for services rendered. The written contract, therefore, should be drafted according to local laws and clearly establish (a) the fee structure; (b) policies regarding charges and payment (e.g., charges per session, charges for missed sessions); (c) the client’s commitment to paying the MHP; (d) the nature and scope of services to be provided; and (e) the general rule of confidentiality and its exceptions (see Sect. 3.4).

Such contracts are made with the informed consent of the client. Informed consent should be obtained before administering mental health services, disclosing information concerning the client to a third party, or taking any other action that may impact the client. Informed consent basically involves the process of discussions between a MHP and a potential client that leads to an informed choice by the client. In general, informed consent has three major parts: (a) competency of the person to be able to consent to services; (b) disclosure by the MHP of relevant and material information concerning the nature and risks of the proposed professional services; and (c) consent that is voluntarily given to the MHP. Even if not legally defined, the components of informed consent are generally agreed upon (see, e.g., Kitamura et al. 1999 for a Japanese example). The failure to obtain informed consent can lead to legal liability for malpractice.

In general, when people voluntarily contract with a MHP to receive services, they have a right to receive the services that they pay for. Conversely, competent adults have the right to refuse treatment that they voluntarily sought. Legal issues become more complicated with regard to persons who are unable to consent to treatment. In some cases, a legally competent person can execute an advance directive that identifies his or her treatment wishes if she or he becomes incompetent, and specifies whom the healthcare proxy decision-maker should be during this period. If no advance directive exists, a court can appoint a guardian (substitute decision-maker) or guardian ad litem (guardian over a specific issue such as making treatment decisions) after the person has been determined to be legally incompetent to make treatment decisions.

Because it is increasingly common that clients do not pay MHPs directly for services, MHPs may be reimbursed by third party payors, such as insurance agencies or government agencies. As discussed above, third party payors can legally affect the nature and length of services that MHPs can provide. However, laws are changing to prohibit both reimbursement denial for mental health services in certain cases and disparity in coverage between mental and physical health services.

Finally, the law also affects how MHPs must calculate their income and deductions to pay their taxes. In the US, MHPs are allowed to deduct expenses only once they have begun employment as a professional. For example, they may deduct expenses from subsequent educational activities or courses that: (a) are actually related to their business; (b) help the MHPs maintain or meet minimum requirements of their jobs or performance; (c) involve improving or maintaining their individual skills; or (d) are required by law (e.g., continuing education requirements for licensure). The law is unsettled regarding deductions for personal psychotherapy and psychoanalysis. The general trend is to allow MHPs who receive mental health services themselves to deduct them as educational business expenses if the MHPs have begun their practice, and if it is a necessary part of their practice (e.g., because the experience improves their job skills).

3.4 Maintaining And Disclosing Information

The doctrine of confidentiality originated in professional ethics codes. It was based on the belief that effective psychotherapy required a guarantee from the therapist that no information obtained in the course of patient evaluation or treatment would be given to others without the client’s consent. Thus, any written or verbal information conveyed by the client to an MHP in the course of a professional relationship can be considered a confidential communication (DeKraai and Sales 1984).

Maintaining confidential client records is not only necessary for the conduct of a good and ethical psychotherapy practice, but licensure law generally requires it. The law may specify a minimum period of time for which records must be kept, and the necessary procedures to follow to maintain the confidentiality of client records. As a general rule, MHPs should take reasonable precautions (i.e., precautions that similar MHPs in your area would take) to protect patient records. These procedures typically ensure that the records are preserved in the case of MHP relocation, separation from a group practice, retirement, or death. MHPs, who generally own their records, are also legally required to make records available to their clients upon request. However, laws may vary as to whether the request needs to be in writing, if fees can be charged for the service (e.g., for time spent copying records), and if there are limits on what type of information and in what format the requested information can be provided.

However, MHPs’ duty to maintain client confidentiality is not absolute. Thus, it is important that MHPs inform clients of the limits of confidentiality at the initiation of services. Several types of penalties may be imposed for violations of confidentiality. First, as noted above, licensure law provides that the Board may suspend or revoke the license of any person betraying professional confidences, or it may impose other penalties such as probation. The same offending actions may also subject the MHP to criminal penalties or a civil lawsuit by the client.

There are a number of threats to the privacy of psychotherapy, including exceptions to confidentiality and competing duties. The law may require MHPs to divulge confidential client information to legal authorities: (a) under search and seizure law, (b) according to a subpoena, and (c) if the client sues the MHP. Generally, confidentiality protections do not apply in legal proceedings unless a privileged communications law protects the information. Confidential information may also be disclosed to third parties if the client gives his or her written consent to a release of information.

Reporting laws impose a competing, affirmative duty on MHPs to disclose specific information obtained in therapy. These laws are based on the premise that the duty to maintain private information revealed in therapy is outweighed by society’s need to protect the safety of its members, including the client. For example, confidential information may be divulged if the client presents a clear and imminent danger to himself or herself, and refuses to accept further appropriate treatment. Other laws that require confidential disclosures include dangerous person reporting laws, and child abuse reporting laws. While commentary on such reporting laws has been critical (e.g., laws are based on faulty premise that MHPs can accurately predict dangerousness), research has not shown that the laws are antitherapeutic, and courts continue to uphold the laws.

4. MHPs Psychotherapy Services That Are Affected by the Law

Because MHPs provide psychotherapy services to a variety of individuals and groups with different needs in different settings, this section discusses how the law directly and indirectly affects MHPs’ psychotherapy practices with certain populations.

4.1 Psychotherapy Services For Individuals With Special Needs

Individuals with special needs include people with mental illness, who abuse alcohol and other substances, with developmental disabilities, who receive treatment and care because they have been victims of domestic violence or other crimes, and those individuals who are incarcerated in jail or prison. Knowing the laws allows MHPs to provide clients with the services to which they are legally entitled.

First, US State law provides for the care of people with mental illness in a number of ways (e.g., Brakel et al. 1985). Some people may be eligible to receive inpatient and outpatient mental health services through their heath care plans. The law also provides for voluntary civil admission and involuntary civil commitment of mentally ill persons to state operated facilities. Generally, voluntary commitment may be permitted for those people with a variety of mental, emotional, or personality disorders, while involuntary commitment is only authorized for those people who meet a set of more restrictive standards listed in the law (e.g., Perlin 1994). The law may explicitly favor voluntary treatment over involuntary commitment because involuntary commitment generates substantial costs, and involves a loss of liberty to the person being committed. In such cases, many legally-mandated procedures must be followed to ensure that the person’s rights are protected. For example, regular or long-term commitment generally requires a petition for a court-ordered commitment, a court review of the petition, an order for commitment, and an appeals process. In addition, the committed patient has numerous rights during treatment, including the rights to be free from excessive or unnecessary medication, and to not be subjected to certain procedures (e.g., experimental research; shock treatment) without informed consent, and/or a court order. MHPs can evaluate the person for admission and provide therapeutic services within the facility.

The law also provides for the voluntary treatment and involuntary commitment of those persons who are seriously disabled by alcoholism, and/or those persons with major substance abuse problems (i.e., drug-dependent persons or addicts). The law in many areas has changed from a punitive model to a continuum of care model, involving treatment and accountability (e.g., drug treatment courts). MHPs may be part of a multidisciplinary evaluation and treatment team under these laws, and may provide services in a variety of settings (inpatient, outpatient, residential).

Third, the law recognizes that people with developmental disabilities (DD) have the capacity to be productive citizens, many of whom can achieve at least some or complete independence (e.g., Stefan 2000). Thus, some laws specifically provide for and protect rights of people with DD, including the rights to be given a nutritionally-adequate diet, and regular and sufficient medical care, and to not be physically or chemically restrained or isolated, except under strict regulations in emergency situations. Also, the law provides various inpatient and outpatient services (including evaluation and treatment by MHPs) for such persons. However, because such services are often not required, the provision of services is heavily dependent on available funding, and upon a government’s commitment to provide a certain level of services.

Fourth, some laws provide services, including those of MHPs, for victims of crimes, including the crime of domestic violence. For example, Victim Assistance Boards and Victim–Witness programs help victims put their lives back in order after the crime, and help them to testify at trial. Beyond counseling abused partners, MHPs may also become involved in these cases by identifying an abusive or battering relationship. MHPs can encourage victims to obtain legal orders to stop the abuse, and help clients to develop safety plans for their and their children’s safety.

Finally, some laws support and require mental health services in jails and prisons because they are recognized as a vital part of the overall healthcare program for incarcerated persons. While MHPs may provide services as employees or consultants to these institutions, very little law specifically governs their activities. In some States, the law provides specialized services for sex offenders as part of their sentence, or through a more controversial, and more regulated, civil commitment treatment program. Some States require sex offender evaluation and treatment providers to be certified and to be subject to standards of professional conduct unique to the certification.

4.2 Psychotherapy Services With Children And Families

MHPs who work with children and families often find themselves courted by the legal system to aid it in administration, as when they provide evaluations and psychotherapy to court-referred juveniles and adults. Juvenile and adult clients can be referred for treatment either before trial to evaluate and/or restore their ability to participate in the process (e.g., competency to stand trial), or after trial adjudication as part of their disposition (e.g., juvenile determined to be delinquent in need of supervision and services). Court cases can also clarify laws and regulations regarding the psychotherapeutic, educational, and other services which children (especially those who are disabled, gifted and talented, in need of guardianship conservatorship, or in foster care or government custody) should be receiving.

Finally, MHPs find themselves indirectly affected by the law when their child and family clients become involved in legal entanglements that involve mental status issues (see generally, DeKraai et al., 1998), such as proceedings that concern the termination of marriage or parental rights. For example, legal child custody arrangements can affect not only the therapeutic needs of the child and adult family members, but also the procedures that the psychotherapist must follow (e.g., the law may determine whether the MHP can evaluate and treat children at the request of a non-custodial parent).

5. Future Legal Developments

Despite the complexity of current legal regulations relating to psychotherapeutic practice, the law will continue to grow and change for a number of reasons. First, no longer do consumers unquestioningly accept MHP recommendations about treatment, or MHP assertions about the causes for unfavorable or unexpected treatment effects. Consumers are beginning to view psychotherapeutic services as similar to many other business arrangements. They want providers to be accountable for their work, and are no longer afraid to ask the courts and legislatures to impose new legal oversight and obligations to protect consumer interests. Second, increased legal regulation is likely to occur because many societies continue to fear, or at least stigmatize (e.g., Perlin 2000), the consumers of psychotherapeutic services. These perceptions will continue to fuel increased legal supervision of mental health services, which will likely be intrusive to the psychotherapeutic process.

Third, with MHP disciplines continuing to evolve, and as consumer concerns over cost-effectiveness in health care increase, new forms of practice are emerging both within and across disciplines. The inevitable result is the need for more laws to regulate these new forms of business practice and the unexpected consequences that sometimes ensue from them. Finally, because lawmakers are constantly looking for better ways to respond to societal needs (e.g., violent juvenile crime), we will continue to see new civil and criminal laws that partially rely on the services of MHPs. Each law brings new opportunities, requirements, and obligations for practitioners. What all this means for MHPs is that there will be increasing pressure on them to become conversant with the laws that affect both their practices and the consumers of their services

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