ethics Archives - Page 2 of 3 - Psychotherapy Notes

Five wrong things therapists say about law & ethics

March 7, 2018March 29, 2016 by Ben Caldwell

I am part of several online groups for psychotherapists, on Facebook and elsewhere. We talk about ethics, about theories, and sometimes about cases (without identifying details, of course, to protect confidentiality). Most of the time, when people say something that isn’t right, the collective wisdom of the group corrects the error. That’s one of many positives of social media: It allows professionals all over the world to share information and hold each other to high standards of knowledge and behavior.

Sometimes, though, a myth or misstatement is so common that the collective doesn’t effectively stop it. Here are the five misstatements about legal and ethical issues that I see most often from therapists.

APA torture loophole is in other ethics codes too

July 13, 2015 by Ben Caldwell

The American Psychological Association apologized on Friday for its actions that allowed psychologists to participate in the torture of military detainees. Those actions are detailed in the extensive “Independent Review Relating to APA Ethics Guidelines, National Security Interrogations, and Torture” (otherwise known simply as the Hoffman report). It is the most thorough examination to date of how APA staffers, aiming to remain in the good graces of the Central Intelligence Agency and (especially) the Department of Defense, actively sought to create ethics policies that allowed psychologists to be involved with torture and shielded them from consequences for doing so.

Kentucky passes, and Tennessee considers, “conscience clause” legislation

October 21, 2014March 28, 2013 by Ben Caldwell

Bills would allow religious therapists to refuse treatment to gay and lesbian clients.

It has been a big week for court cases on the rights of gays and lesbians, with California’s Proposition 8 and the federal Defense of Marriage Act both debated at the US Supreme Court. In the mental health world, over the past few months, Eastern Michigan University settled the Julea Ward case without admitting wrongdoing, the “Julea Ward Freedom of Conscience Act” languished in the Michigan legislature, and Jennifer Keeton lost her discrimination case against Augusta State. At a glance, it appears that gay and lesbian clients are making progress toward equality under the law and protection from discrimination in mental health care.

Kentucky and Tennessee, however, appear to be going in a different direction. Both states have moved to protect those therapists who would choose not to treat gay and lesbian clients based on the therapist’s religious beliefs.

Kentucky

In Kentucky, the state legislature has enacted a broadly-worded law to protect religious belief, even overriding the Governor’s veto to do so. The entirety of the new state law:

“Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A ‘burden’ shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.”

While the law is broad, it seems to me that it would clearly apply to a future case similar to Ward’s or Keeton’s; a student therapist refusing to treat gay and lesbian clients (in the language of the law, “refus[ing] to act”) based on a sincerely held religious belief could not be removed from their university (“exclusion from programs”) or even disciplined in any way (“assessing penalties”). Yes, the “unless” clause creates a possible exception, but it also creates a very high bar for that exception. And although the bill applies specifically to government, the state’s major family therapy programs — at Kentucky, Western Kentucky, and Louisville — are all housed in public (state-government-funded) institutions, so courts would be likely to apply the new law to any actions taken by these programs.

It is also notable that the Kentucky bill is so broad that it would apply in any setting, not just universities, so licensed therapists working in public mental health settings also appear to be granted the freedom to discriminate in client care based on their religious beliefs, without fear of repercussions.

Tennessee

Tennessee, meanwhile, is considering a much more specific bill modeled after last year’s unsuccessful effort at conscience clause legislation in Michigan. The Tennessee bill, which would allow students in counseling, psychology, or social work programs to refuse to treat clients based on the student’s religious beliefs so long as they refer to a therapist willing to serve the clients, has moved forward in the state legislature despite objections from psychology faculty at the University of Tennessee. Those faculty members argued that the bill would allow

“a Hindu, opposed to killing animals, refusing to counsel a hunter; a Christian refusing to provide counseling to a Jew; [and] a student who opposes alcohol consumption refusing to counsel someone with a drinking problem.”

The professors went on to argue that, by allowing therapists to make the kinds of choices described above, the bill would force educational programs to allow their students to violate professional codes of ethics. This, they argue, would threaten the programs’ accreditation status. (As I’ve mentioned before, accreditation has been a handy cudgel for those on both sides of the debate.)

The bill (SB514) has passed the Tennessee Senate and is currently awaiting hearing in the state House of Representatives.

Other states

There seems to be some confusion (especially in the Tennessee legislature) about whether the Michigan bill (HB5040 and SB518, in 2011) passed; as best as I can tell, it never made it out of that state’s Senate Education Committee. A similar Arizona bill, however, was successful, so these proposals seem to be batting about .500 so far.

As I have said previously, the underlying issues are complex. It is of course true that every mental health profession’s code of ethics prohibits discrimination on the basis of sexual orientation. But many of those same codes also require therapists to place the client’s values above their own — and to make referrals when the therapist is unable to do that, or if the therapist is unable, for any reason, to provide competent treatment. Religious therapists who have strong beliefs against homosexuality are placed in the difficult position of balancing the ethical requirement that they not discriminate with the ethical requirement that they provide competent services, without letting their own values interfere. What seems to be clear is that if mental health professional groups cannot better clarify these issues on their own, some state legislatures are quite willing do it for them.

# # #

Your comments are welcome. Add to the discussion in the comments below, by email to ben[at]bencaldwell.com, or — if you are better at brevity than I am — through my Twitter feed.

Yes, Tweets can be considered advertisements

July 11, 2022August 27, 2012 by Ben Caldwell

For California therapists promoting their practices on Twitter, there isn’t enough room to include legally-required disclosures on every tweet. Here’s what to do.

Twitter is a web site that allows for “micro-blogging,” or posting of messages that are 140 characters or less. Because of Twitter’s open and social nature, it can be a good platform for sharing news about your practice. However, as you can imagine, 140 characters is often not enough room to include both your legally-required disclosures and whatever meaningful content you had hoped to include in a post on the site (otherwise known as a “tweet”).

If you are an LMFT, LPCC, or LCSW in California (other state laws vary), you can advertise your practice on Twitter, you just need to use caution in doing so. The California Board of Behavioral Sciences reported in a committee meeting that they had consulted with legal counsel on therapists’ use of Twitter [page 6 of linked PDF]. If the BBS were to receive a complaint about such advertising, they said they would consider advertising “as a whole.” In other words, if your tweet only links to your web site, they would consider the tweet and the site together. As long as a potential client must have seen your legally-mandated disclosures in at least one of those places, you should be safe.

Another way to think of it is, do NOT include any direct contact information – like your phone number, email address, or office location – in a tweet or on your Twitter profile. If you do that, a potential client could come to you just from the tweet, never having seen your required disclosures. Instead, make sure your Twitter profile and individual tweets ONLY include a link to a web site or other resource where you do meet all of California’s advertising standards.

Standard caveat applies here: I’m not a lawyer, so if you are in need of legal advice, this isn’t that. Talk with someone who has actually, like, gone to law school. I’m giving my best clinician’s understanding of both the law and what the BBS has said about it.

Julea Ward wins court ruling, while legislation bearing her name advances

March 21, 2012 by Ben Caldwell

Her religious discrimination suit is returned to a federal jury. Meanwhile, a proposed law in Michigan would allow students to refuse to treat any client they chose, out of any genuine religious or moral belief.

Julea Ward has enjoyed two big victories so far this year.

For the first time, she won a court ruling in her case against Eastern Michigan University, which had disciplined her for refusing to provide counseling services to a gay client as part of her graduate practicum training. Just weeks later, legislation bearing her name moved forward in the Michigan legislature despite protests from universities and professional associations that the Julea Ward Freedom of Conscience Act would make it harder to effectively train mental health professionals.

In the court case, Ward’s victory was limited but it does keep her case alive. While not making a determination of the merits of the case, the 6th Circuit Court of Appeals ruled that Ward should have the opportunity to argue that her religious beliefs were used against her, according to the Associated Press. The case will be returned to a Detroit-based federal jury.

In the Michigan legislature, the House Education Committee advanced HB5040, the bill bearing Ward’s name. According to the Holland Sentinel, the bill would “prohibit religious discrimination against students who are studying counseling, social work, and psychology.” That description seems a bit narrower to me than the bill itself, which goes beyond just prohibiting discrimination: it actually prohibits universities from any disciplinary actions against students who refuse to treat clients based on “a sincerely held religious belief or moral conviction of the student, if the student refers the client to a counselor who will provide the counseling or services.”
You can keep up with the bill’s progress here: HB5040.

I wrote about Ward’s case for Family Therapy Magazine a couple of months ago (full article: Can a religious therapist refuse to treat gay and lesbian clients?). She described the events that led to her lawsuit in this video for the Christian-based legal organization that is defending her:

I’ll be writing more about HB5040 and other “conscience clause” legislation in the near future. In the meantime, the Pew Research Center offers a fascinating legal history of conscience issues in health care.

Update: About a week after this post was initially published, I posted another piece about conscience clause legislation.

# # #

Share your thoughts on this case: Email me at ben[at]bencaldwell[dot]com, post a comment below, or find me on Twitter (@benjamincaldwel).