Case Study 1 In discussing copayments with a group of colleagues, one mental health clinician at an agency that offers no sliding scale or reduced fee revealed that when a copayment is very high (e.g., $50) and the client is obviously struggling financially, she often reduces the co-payment, taking less money for herself as a result. However, she enters the higher amount (which she didn’t take) in her records and keeps knowledge of the reduced fee between herself and the client. The organization is still reimbursed for the session by the insurance company for the usual amount, which does not include the copayment. This scenario presents risks on all three levels: Clinical, administrative, and legal. Clinically, the worker is trying to do Legal Rationale Mental health professions have not escaped the increasingly litigious reach of our society, and proper documentation can establish the competency and qualifications of the provider. Accurate record keeping is the best protection from baseless claims. Careful documentation may mean the difference between a legal judgment for or against a worker or an organization. (Moline et al., 1998). Legally, records protect the provider by demonstrating that the treatment provided was within the professional standard of care. Thorough records assist in clarifying and justifying questionable actions by the provider or organization. In fact, the NASW (2018) lists documentation clarity in the practitioner’s notes as one of the organization’s tips for avoiding malpractice. Obtaining informed consent is not a perfunctory obligation of documentation. There are challenges and risks associated with improperly obtained informed consent (Kilkku & Halkoaho, 2022). Although it is a legal and ethical requirement in healthcare, true informed consent is difficult to obtain and substantiate. The client’s level of understanding and decision- making capacity can vary across time and situations. Although a client may give consent for disclosure of information, for example, that disclosure may inadvertently backfire, possibly causing the client harm. Clients may be harmed by released health information that is improperly disclosed by the third- party recipient or when the information is used against them in a court proceeding. Even if information is properly released and disclosed, the information now made public may have residual effects for the client. Liability insurers report that the most frequent licensing board complaints stem from perceived conflicts or damages resulting from divorce. When therapists are involved in seeing couples, this risk is salient. To obviate this risk, it is recommended that practitioners “create a documented record of resistance to disclosure” (NASW, 2018, p.1). This added informed consent requires signatures from all parties permitting the practitioner to resist disclosing records in good faith. In couples therapy this statement of neutrality protects the practitioner from being drawn into “taking sides” (e.g., of having records subpoenaed to harm the other partner). In essence, the statement explains that the practitioner is an “unbiased intermediary…and shall not act as an advocate for or against any party” (NASW, 2018, p. 1). In determining what is reasonable and customary for the public to expect from a particular profession, the courts look to the “industry standard” for guidance. Most “standards of care” are outlined by a profession’s code of ethics. Several organizations’ professional codes of ethics are recognized as the “industry standard” within the helping professions. These include the codes issued by the American Psychological Association (APA), the National Association of Social Workers (NASW), the American Counseling Association (ACA), the American Psychiatric Association (APsyA), the American Association for Marriage and Family Therapy (AAMFT), the Association for Specialists in Group Work (ASGW), and the National Board for Certified Counselors (NBCC).
something helpful for the client, but Reamer (2009) suggests that altruism is frequently at the root of the unethical situations in which practitioners find themselves. What if other clients somehow discover this practice and perceive it as preferential treatment? Will they expect the same? Will the client interpret this as having a “special” relationship with the clinician? Will the client feel indebted to the clinician for the reduced fee? Administratively, the mental health clinician’s actions could be seen as deceptive bookkeeping practices. If the worker’s supervisor learns of the practice, might they question other documentation provided by the worker? Legally, could an argument be made that insurance fraud is being perpetrated? Some clinicians keep two sets of notes on clients: one for the official record and a second set with personal comments, interpretations, and cues for clinical intervention. This second set of notes is commonly referred to as “personal notes” or “shadow records” (Sidell, 2015) for legal purposes, but the distinction between the official record and personal notes varies by state. Most states make no distinction, and thus both sets of records are subject to subpoena. States that recognize a distinction do not require that personal notes be considered under a subpoena. Practitioners are advised to check their state’s law on what is considered part of the “mental health record.” Sidell (2015) advises that the safest risk management approach is to destroy informal notes after using them as aids for recording the official notes in the case file. Subpoenas are often anxiety producing for health practitioners but erring on the side of documenting too little or too much can exacerbate the situation. It is advisable to keep all documentation, including electronic communications, for protection in a lawsuit. It is also important not to make any changes to the record after receipt of a subpoena (Wiger, 2022). Certain risk management strategies will help reassure the practitioner who fears revealing records in legal proceedings. Managing risk in documentation involves these critical four areas. 1. Content Sidell (2015) gives specific examples of “people-first language” to avoid any hint of defamation or discrimination. For instance, most contemporary practitioners are aware that the emphasis should be on “having” a condition, rather than “being” a condition and would write, “He has a mental health condition” instead of “He is mentally ill” or “She has a diagnosis of autism” instead of “She is autistic.” However, more vague references might escape even the most conscientious worker. Finally, because documenting psychotherapy has evolved from the medical model, it is the accepted standard in most clinical work to keep accurate, timely, and sufficient records. Both what is written and what is not written can be potentially problematic. Malpractice claims can be brought based on acts of commission (actions taken) and omission (actions not taken). Documentation can verify what has or has not taken place in a therapeutic encounter, and the risk of legal repercussions extends also to what is or is not written in the documentation itself (Wiger, 2022). In resolving legal claims, courts may consider issues of malfeasance and nonfeasance. Malfeasance is when an action is performed in a flawed way, such as conducting an incomplete suicide assessment. Nonfeasance is when a required action is not performed at all, such as not performing a suicide assessment when indicated. Only solid documentation would elucidate whether a practitioner’s actions constituted malfeasance or nonfeasance and exonerate a practitioner or protect a client’s best interest. 2. Language 3. Credibility 4. Access
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Book Code: SWTX1524
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