Instructor Responses to Week 2 Homework

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    Patricia Burke
    Keymaster

    Supervision and Ethics

    Instructor Response to Homework 2

    Hello everyone,

    Once again, I appreciate your thoughtful responses to the homework questions for class 2. Here are some of my thoughts and reflections on your responses to this complex clinical scenario involving Janet and Larry.

    1) Who are the parties that will be impacted by whatever course of action is chosen?

    Most of you clearly pointed out that Larry and Janet are the primary parties that would be impacted by whatever course of action the supervisor recommends to Janet. Other parties that were mentioned include the clinical supervisor, Larry’s family, employees at the agency, Janet’s family, AA group members, the agency, possibly other clients and clinicians, agency personnel, community members, members of the recovery community.

    Other parties might also include the agency’s Executive Director and Board of Directors as they might be parties to any lawsuit filed against the agency. It is clear just from identifying the concerned parties that there could be wide ranging implications for any action that you, as the clinical supervisor, advise Janet to take in this situation. Essentially, the parties with the most at stake are Larry (the client) and Janet (the clinician). While other parties should be held in your awareness, the ethical concerns, conflicting interests, and competing values of Larry and Janet are of primary concern.

    2) What are the ethical issues involved in this clinical scenario, conflicting and competing values of the parties involved?

    Larry’s interests include his right to access to appropriate treatment, his right to confidentiality, and his right to not be arbitrarily terminated from treatment. Janet’s needs are for privacy and safety, but also to act ethically in her professional relationship with Larry. Since Larry has abandonment issues, his mental health issues are intricately intertwined with Janet’s response to his intrusive behavior and at the same time, she has a need and a right to privacy and safety in her personal and professional life. While we are generally primarily concerned about client needs and rights and they take precedence, in this situation there is a tipping point in which the counselor’s need for protection, safety and privacy may become weighted more heavily.

    Some of the ethical issues and conflicting values you mentioned include:

    * Client’s breech of therapist’s boundaries with harassing/stalking behaviors of her

    * Agency duty to provide client with mental health/substance use treatment;

    * Therapist duty not to abandon client

    * Larry’s fear of abandonment

    * Therapist’s disclosure of AA attendance/recovery to supervisor and/or agency employees in dealing with this issue.

    * Primary conflicting values seem to be around boundary violation/harassment and duty for provision of services to client.

    * Doing nothing could compromise Janet’s recovery.

    * Agency could be liable if Larry harms Janet.

    * Filling a harassment complaint could violate Larry’s confidentiality.

    * Janet’s right to safety and the client’s right to treatment.

    * There is also the duty of the agency to provide services to clients struggling with complex substance use disorders and mental health disorders and the duty of the agency to protect its employees.

    * Janet has an ethical conflict, based on Larry’s increasing boundary violations.

    * One can assume that an ethical decision was already made and Janet had revealed to Larry that she is in recovery. Otherwise, he may not have known to look for where she attends meetings. Perhaps that is a decision the agency may revisit.

    * Boundary violations, non-maleficence, breaking confidentiality and client rights to treatment…… Conflict between the supervisee’s safety and the client rights to treatment complicate these ethical issues.

    As you can see from this list there are quite a few potential conflicts of interests and ethical dilemmas associated with this clinical scenario. As Janet’s clinical supervisor I would first be concerned with resolving the conflicting interests between Larry and Janet in an ethically responsible manner, and this process may bring up larger ethical and risk management issues that the agency needs to address to prevent future conflicts.  As many of you pointed out, ultimately the clinical supervisor and the agency need to focus on a way to meet the client’s clinical needs without putting the counselor at risk.

    Some of the ethical codes and laws that I would want to consult in this situation which might illuminate the potential conflicts would include the ethical principles regarding dual relationships, client confidentiality and exceptions to confidentiality (in the event that Janet files a protection order), ethical termination procedures which are intended to protect clients from precipitous termination or clinical abandonment, the protection from harassment law in Maine (or the state in which the agency is located) to determine what constitutes harassment, and ethical guidelines on scope of practice to determine if Janet would be working beyond her scope of practice (i.e. she is an LADC and Larry’s mental health issues have become a primary clinical issue to be addressed) even if you, as her supervisor, and she can work with Larry to address his inappropriate behavior and contain it.

    Referring the client for a psychiatric evaluation might be one possible response to the scope of practice issue. It would be a good risk management strategy, but would that be in the client’s best interest? At the least, the clinical supervisor should be aware of any psychiatric diagnoses and address the possible implication of that diagnosis on Janet’s substance abuse treatment of Larry, even though she cannot not treat him for his diagnosis of Dependent Personality Disorder. Also, as the clinical supervisor, with vicarious liability exposure, I would have a duty to make sure that Janet is not practicing outside the scope of her practice as an LADC. This raises the question, for me, of how Larry got assigned to Janet in the first place, since Larry had previously been diagnosed with a personality disorder. Does the agency need to revisit its screening and intake process and referral to continuing care after intensive treatment? As Beth commented: “Tell Janet she needs to either ignore or confront this issue on her own, despite her stated fear. a. Pros: I fail to see any. b. Cons: Janet is an LADC, and as such, has little to no training in working with personality disorders, so may have already missed important signs of Larry’s growing dependence, and may not be equipped to handle his potential reaction therapeutically. One could wonder if the agency made an ethically sound decision in placing Larry with Janet initially.”

     

    Please Note:

    The Maine protection from harassment law (http://www.mainelegislature.org) defines harassment as:

     

    A. Three or more acts of intimidation, confrontation, physical force or the threat of physical force directed against any person, family or business that are made with the intention of causing fear, intimidation or damage to property and that do in fact cause fear, intimidation or damage to property; [1995, c. 650, §1 (NEW).]

    B. Three or more acts that are made with the intent to deter the free exercise or enjoyment of any rights or privileges secured by the Constitution of Maine or the United States Constitution; or [1995, c. 650, §1 (NEW).]

    C. A single act or course of conduct constituting a violation of section 4681; Title 17, section 2931; or Title 17-A, sections 201, 202, 203, 204, 207, 208, 209, 210, 210-A, 211, 253, 301, 302, 303, 506-A, 511, 556, 802, 805 or 806. [2001, c. 134, §1 (AMD).]

     

    Getting a temporary protection order from the court is fairly easy but proving harassment in order to obtain a permanent order is not so easy as you can see from the above definition of harassment. Therefore, if Janet decides to file an order (with or without your support) she should consult an attorney who specializes in domestic violence and family law. She should consult with the attorney about the potential problems associated with breaching confidentiality and to attempt to protect Larry’s confidentiality as much as possible by giving the minimum amount of information necessary to file the complaint.

     

    Since Janet is an LADC, I would consult the State of Maine licensing regulations for substance abuse counselors. With regard to the issue of precipitous termination of a client the Maine Board of Alcohol and Drug Abuse Counselors states: “Terminate a counseling relationship when it is or should be reasonably clear to the counselor or clinical supervisor that the client is not benefitting from it. When a client refuses treatment, referral or recommendations, the counselor and clinical supervisor shall carefully consider the welfare of the client by weighing the benefits of continued treatment or termination, and shall act in the best interest of the client.” In this clinical scenario, it could be reasonably determined that Larry would not benefit from continued treatment with Janet if his mental health issues are taking precedence over his substance use issues and/or if Janet is frightened of him.

    What is in Larry’s best interest? He might want to continue seeing Janet, but is this the best possible option for him? These are key questions to consider as you, as Janet’s supervisor, help her wrestle with these conflicting interests and values.

    3& 4) What are all the viable courses of actions and the possible benefits and risks for each?

    One possibility is for Janet to continue working with Larry. Sindee mentioned some of the pros and cons of this possibility, “Another course of action would be to meet with all parties, Janet, Larry and supervisor to create a plan of action going forward that would involve Larry ceasing the harassing behaviors and remaining in counseling with Janet, and only terminating or transferring if he defaults on the agreement. Risks would include that it may still put Janet on edge and keeps her at risk without legal backup. Pros are that Larry may not experience abandonment by Janet and be able to work through this issue by exploring other ways to seek emotional support without resorting to harassment/boundary violations.”

    If Janel continues to work with Larry it would be important for Janet and/or Janet and the clinical supervisor to address Larry’s intrusive behaviors directly with him in a respectful and non-judgmental way (if Janet is willing and it is determined that she would be operating within the scope of practice) and develop a behavioral contract with him as a pre-requisite for continuing counseling with Janet. The pros of this action are that it addresses Larry’s abandonment issues. The cons are that it might put Janet at risk for harassment and she would be treading on mental health treatment which is beyond the scope of her practice as an LADC. If Janet is being stalked then putting her in the same room with Larry puts them both at risk for fueling his behavior. As

    Beth wrote: “Supervisor and Janet determine they will meet with Larry together, respectfully share with him how his behavior is making Janet feel, and give him the choice of staying with a new clinician at the same agency or being referred to a clinician in another setting. Pros: Larry’s autonomy would be respected. This could be a therapeutic intervention in which Larry receives respectful feedback about how his actions have negatively impacted Janet, and also receives feedback and suggestions for healthier ways to have a therapeutic relationship. Both the supervisor and Janet would be supporting one another, in the event Larry becomes angry or attempts to discredit the interaction at a later date. One would hope that agency policy exists to support this decision, and is in line with making sure Larry’s client rights are respected, and that his needs are a primary consideration. b. Cons: Larry may feel abandoned and refuse to participate in a discussion about how to help himself or find solutions. He may relapse. He may decide that treatment providers are disrespectful of him, and refuse further treatment.”

    Dsinski wrote about  the option of Janet continuing to work with Larry: “Meet with the client and explain his behavior is inappropriate and cannot continue. Outline a plan to help the client find another meeting and Janet continues to work with him. Benefits – client is supported and learns new behavior. Janet feels that she handled the decision appropriately and can help others when they run into similar issue. Risks – client relapses, client feels validated and continues his behavior. Client leaves agency.” Melissa commented: “Janet addresses her boundary concerns with support from her supervisor with Larry in session and sets clear expectations moving forward. If behaviors continue, lay out clear expectations of what will happen in regards to terminating services and pressing charges. Pro’s: Informs Larry of his behaviors and sets clear expectations moving forward. It can value the therapeutic relationship and use it as a teaching moment within the clinical relationship. Con: Potential for Larry to continue with these behaviors is high due to reported past behaviors. May put Janet in some risk. Based on strengths-based approach that allows for behaviors to be addressed in a supportive clinical environment.”

    Another option would be for Janet to terminate treatment and transfer Larry to another counselor either within the agency or at another agency, particularly if he is unable to change his behavior. The cons would be potential emotional harm to Larry, but the pros would be protecting Janet. In addition, if handled correctly, it could be a growth opportunity for Larry. “As Sindee commented, “According to the ACA Code of Ethics, ethical issues should be resolved with all parties involved, but it is unclear if involving Larry in a conjoint meeting with Janet would be safe to her and if it would exacerbate his boundary infractions. Risks are that he will feel abandoned, increase his harassing/stalking behaviors of her, possibly drop out of treatment with new provider and relapse.” Dsinski commented on the pros and cons of this option: “Benefits, Janet feels listened to and supported by agency. Janet feels relief. Client learns about inappropriate behavior and uses this in therapy going forward. Risks – client relapses, client feels abandoned, client ups the ante. Janet feels like she failed the client.” Melissa commented: “Larry is transferred to another therapist within the same agency or another agency that provides similar services. Pro: Janet is supported and Larry can continue in treatment. Con: behaviors are not addressed in a therapeutic manner, maybe missing a clinical opportunity for Larry.”

    On the question of filing a protection from harassment against Larry, Disinskie described the pros and cons this way: “Benefits – client cannot harass Janet any longer. Janet feels relieved and safe. Risks – confidentiality is broken, client feels abandoned and attacked, client relapses, client ups the ante, client sues agency, client files complaints with regulatory body, client bad mouths agency.”

    There are a number of ambiguities in this case vignette. For example, the threat of harm to Janet is unclear. I purposely left it ambiguous because it is common for clinicians to feel ambivalent and be ambiguous in their initial reports of difficult clinical situations that might involve ethical issues and conflict of interests. Janet may feel vulnerable and embarrassed about telling you, as her supervisor, that she is afraid of Larry. She may question her competency as a counselor, even if she acted appropriately with regard to establishing appropriate boundaries with Larry. She does report that he showed up at her regular AA meetings even though she had recommended that he go to men’s meetings. This suggests to me that she was aware of a potential boundary issue of both she and Larry attending the same AA meetings. It is also unclear whether Larry’s “anonymous” phone message rises to the level of harassment.

     

    Please note:

    As far as the “anonymous” phone messages are concerned, I worked with a client who would call my answering machine just to hear my voice, but would not leave a message, but I was able to identify the client through my caller ID. When I listened to my messages all I heard was breathing and faint background noises.  One clinician I supervised worked with a client who left messages on her machine consisting of blaring punk rock and rap music with violent lyrics.

     

    While this kind of behavior may not met the legal standard of harassment (which is open to interpretation by the court) it certainly qualifies clinically as stalking behavior. (See The Psychology of Stalking: Clinical and Forensic Perspectives by J. Reid Meloy for a comprehensive look at clinical stalking of therapists.)

     

    So perhaps the very first action step you might take, as her clinical supervisor, is to let Janet know that these situations are not uncommon, that we all face sticky ethical dilemmas in our professional careers, and before making snap judgments about her or Larry’s behavior, question Janet in a respectful and mindful way about her clinical work with Larry, how she handled informed consent at the initial contact, how she handled issues like self-disclosure and setting boundaries with Larry to this point. It is important to be respectful and also take Janet’s feelings of being threatened by Larry seriously, while at the same time explore potential ethical slips.

    As the clinical supervisor, weighing the client, counselor, and agency’s needs and possible actions and their pros and cons should be done in a thoughtful and measured way. This is the most important aspect of a thorough ethical decision-making process.

    5) Who will you, as a supervisor, consult regarding this clinical scenario and why?

    Here are some of your thoughts on who you might consult:

    * I would consult with my supervisor and/or agency director, my liability insurance provider and attorney, possibly a police mental health liaison, as they can all contribute to the ethical decision-making process and it is critical to document consultation as well.

    *I would consult with the Clinical Director and Medical Director of the agency. These directors are responsible for the policies and procedures of the agency. Additionally, the more consultation sought, the better the outcome/decision process.

    * I would consult with our lawyer to verify that we are meeting our agency policies and procedures and acting in accordance with any legal standards.

    * I would also consult with other supervisors within the agency to make sure we are finding the balance between the clients rights to services and the employee’s rights to work in a safe environment.

    Great ideas about potential sources of consultation. It is useful to consult codes of ethics and licensing board regulations, however, it is really important to consult a variety of other professionals when involved in any ethical decision-making process. There are both professional ethical considerations in this clinical scenario as well as potential legal issues involved. If your agency has an attorney or legal consultant it would be important to consult him/her for input on risk management issues and confidentiality issues, especially, in the event that Janet pursues a protection order. As you all made clear in your responses, consultation with others is essential in dealing with such a clinical scenario with so many potential ethical issues in order to gain the perspective of others and share the risk.

    (Please note that the Licensing Board in Maine will not give clinicians advice about options for ethical actions. The Board is set up to protect client’s rights. This may vary from state to state, so it is important to know whether or not the licensing board in your state will be a good source of support for you. You can contact the ethics board of your or your supervisee’s professional organization and/or the risk management department of your professional liability insurance company for advice.)

     

    6)  What is the best possible course of action to take in this clinical situation?

    Here are some of your other suggestions regarding the best possible course of action to take:

    * I believe protection of Janet, the therapist, and the agency employees with do-no-harm actions to the client: file protection from harassment, transfer client to another counselor at the agency for continuity of care, allow Janet to return to her regular AA meeting comfortably with the legal order in place.

    * I feel that the best possible course of action to take in this situation is to sit with the client and address each issue; 1) attending Janet’s meeting 2) obtaining my number and address 3) the phone calls. The meeting should include a discussion of boundaries and confidentiality. Validating the clients rapport with Janet is important also as is a discussion that Janet is trying to abandon Larry but that boundaries are important and implemented to protect the client. The meeting should also include consequences if the behavior doesn’t stop.

    * I would choose the first option and have Larry and Janet meet together with the clinical supervisor to address the boundary concerns and come up with a behavior plan that must be followed for Larry to continue in treatment.

    * All clinician contacts with client should already be documented and included as part of the ongoing process of determining next actions. I would ask Janet to document the experiences that have made her uncomfortable. I would document all conversations I have with Janet, as well as those with my supervisor and any other sources I am advised to consult (i.e., legal, other agency resources).

    * To address the boundary violations, client rights to treatment, safety concerns for all parties – I would focus on meeting with the client to clarify innapropriate boundaries, illuminate further possible consequences and offer referral options within and beyond the Agency.

    * Since Janet has already stated she feels unsafe, it seems the safest and most ethical approach would then be to meet with Larry together, but let Janet take the lead in expressing her discomfort, offering options and providing Larry with insight into how his behavior has affected her. This can be turned into a learning process for Larry.

    While one option is to try and find a way for Janet and Larry to continue to work together, given the safety and scope of practice issues, I think that termination with Janet and transfer to another clinician within the agency or at another agency would be the best possible course of action in this situation. If Larry’s behavior has escalated to the point of stalking or harassment, then I would transfer Larry to another agency so there is no chance of contact between him and Janet on the property. As the case scenario indicates Janet works in a comprehensive outpatient Mental Health Agency that provides substance abuse and mental health treatment, it should be possible for the agency to implement this course of action. I think this set of actions is a reasonable attempt to balance the interests and rights of the client and the clinician’s need for safety and protection.

    The best possible solution to most potential ethical conflicts is to find a point of resolution within the context of the clinician/client relationship. As some of you mentioned, this situation could be an opportunity for both Larry and Janet to learn about boundaries and relationships if there is open communication between the two, with a third party present. So it would be important for you, as the clinical supervisor, to be present in any final session between Larry and Janet. This, of course, is once again predicated on the fact that Larry’s behavior has not already escalated to the point of harassment or clinical stalking. In that event, I would not put Janet in the position of meeting face-to-face with Larry.

    In Preventing Boundary Violations in Clinical Practice, Gutheil and Brodsky (2008) make the distinction between clinician boundary transgressions and client boundary transgressions: “If a therapist’s joining a patient’s book discussion group can precipitate an ethics complaint, what if a patient knowingly joins a therapist’s book discussion group? Since patients do not have an ethics code to observe, there is not strict reciprocity of duties. Still, it is cause for concern when a patient keeps track of a therapist’s whereabouts in order deliberately to cross his or her path, especially when the patient escalates to showing up unannounced at the therapist’s office, home or outside activities. . . . A therapist must consider when such conduct rises to level of stalking and when it needs to be dealt with by extratherapeutic means. . . When the risk or actuality of stalking is an issue Epstein’s guidelines for dealing with exploitative patients are helpful. Recommended measures include discussing all boundary violations with the patient as soon as possible . . . taking precautions (including firm, immediate boundaries). . .and not allowing a pattern of intrusions into the therapist’s personal space” (pp. 147-148).

    The NASW Code of Ethics offers some additional guidelines for termination:

    “Social workers should take reasonable steps to avoid abandoning clients who are still in need of services. Social workers should withdraw services precipitously only under unusual circumstances, giving careful consideration to all factors in the situation and taking care to minimize possible adverse effects. Social workers should assist in making appropriate arrangements for continuation of services when necessary.”

    So if you and Janet determine that Larry needs to be terminated the most important thing you can do is try to minimize any possible adverse effects on Larry and make appropriate arrangements to transfer. If termination becomes necessary is should be handled respectfully and non-judgmentally. In this scenario, termination, if done openly and with proper referral would be well within the range of ethically sound actions.

    If Janet ends up having to file a PFH against Larry she should continue to do her best to protect Larry’s privilege and confidentiality by disclosing only the minimum amount of information necessary to protect her from his harassment. In that situation, I would encourage Janet to get her own legal representation and discuss the agency’s responsibilities to both Larry and Janet with the agency attorney.

    Remember, reasonable professionals can disagree about what actions to take to resolve ethical dilemmas. What is most important is to work through your decision-making process in a systematic way, assessing the pros and cons of each potential course of action, and try to find the “best” possible solution, instead of focusing on the “right” solution.

    7) How will you implement the decision, document the decision making process, and monitor and evaluate the effects of the decision?

    Sindee commented, “The decision would be documented in progress notes, crisis notes, supervision logs, discharge summary, new therapist re-opening documentation. Monitoring with all agency staff involved and any legal interaction as needed.”

    Dsinski describe this plan for implementing the decison-making process: “I would implement the decision by advising the CD and MD of my decision and then calling the client for a meeting. I would carefully document the facts and why I feel I need to seek supervision around this, then document each step taken, i.e., meeting with the CD/MD, my decision making process, and the plan and then finally the outcome. I would also document if these issues arise again. If not, then the intervention was successful, if they did, then its back to the decision making process.”

    And Beth wrote: A written document clarifying what is discussed may be helpful to the client and will be kept in the client’s file. Myself, the counselor and whomever I consult with will also be keeping our own documentation about this incident. I will follow up with the counselor (possibly past and current now) to monitor the interations with the client. Treatment will also be reviewed regularly. I may also continue to process my continued supervision within my own supervision.

    Three crucial actions should be taken in your efforts to implement your decision 1) engage in direct supervision of the clinical situation which means observing any continuing or final sessions with Larry and Janet, 2) be involved in any legal or risk management conversations with agency directors or legal consultants and 2) document extensively. This documentation should include documenting the actions you took but also documenting our ethical making decision process in the event there is ever a lawsuit or ethics complaint.

    It is clear from your careful evaluation of this clinical scenario that having a systematic method (such as Reamer’s) to examine possible ethical dilemmas and their resolution, is an important tool for clinical supervisors, not only to manage risk, but as a method to enhance clinical services to clients. This or any other systematic method of examining ethical issues should be standard practice for clinical supervisors. I hope you put this one in your practice tool bag. Now you can examine any ethical dilemma with confidence. As the saying goes, “Give a man a fish and he will eat for a day. Teach a man to fish and he will feed himself and his family for the rest of his life.” One last reminder; the point of this exercise and any method of ethical decision making is not to try and find the “right answer” but, after careful consideration to uncover the “best solution” to ethical dilemmas in complex clinical situations.

    In our next class we will take a closer look at ethical issues in the supervisor/clinician relationship. Thanks again for your thorough examination of the clinical scenario in this lesson.

    ~Patricia

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