Jennifer L. Black has a BA and an MS in psychology and has also completed master's-level coursework in criminal justice.
Legal Issues and Professional Psychology
Even though legal issues are probably not what first comes to mind when most people think about psychology, there is more involved in the practice of professional psychology than theories and treatment options. Psychologists are required to maintain their professional competence by staying up-to-date on changes in the field of psychology and by maintaining awareness of any revisions to laws or regulations that could affect them and their practice. Some of the most significant changes in the practice of psychology came about because of legal decisions.
Issues related to informed consent, assessment, and confidentiality are addressed in the ethical guidelines developed by the American Psychological Association (2010), as well as other organizations, but court rulings have also played a large part in designating appropriate actions in these areas.
Legal Issues Related to Informed Consent and Refusal
Informed consent is not a recent development in the medical field. In 1891 the Supreme Court ruled that people have the right to self-determination, and in Schloendorff v. Society of New York Hospital (1914), the judge decided in favor of a patient who sued his doctor for performing a surgery that he did not authorize. This decision led to the concept of informed consent, which allows adults capable of making an informed decision the right to decide if they want to receive medical treatment (Whitstone, 2004).
The basis of informed consent lies in whether or not the patient is of sound mind. This is determined through discussions with the patient about their condition and possible treatment options. Informed consent laws require that psychologists take whatever reasonable steps are necessary to communicate any relevant information to the patient. An informed patient understands their condition, treatment options, risks, and benefits of those treatments, what course the condition will take without treatment, the doctors recommended treatment and any possible problems related to each of these features. With informed consent also comes informed refusal (Sabatino, 2012).
The act of refusing a recommended treatment alone does not indicate that the patient is incompetent to make a decision about their own medical care. There are many reasons patients may refuse care even though it is needed, and they understand the possible consequences of their decision. For instance, someone without insurance may be concerned about paying for medical services or bankrupting their family. Other reasons could involve distrust of doctors, general anxiety, or confusion about the treatment. Discussing the reasons for their refusal with them allows the doctor time to determine if their reasons are sound or if there are other factors involved. Depression, disorientation, or other symptoms of a medical condition could affect the patient’s judgment. If the doctor determines that the patient is not capable of making an informed decision about their treatment, whoever is authorized to make medical decisions will be responsible for doing so (Sabatino, 2012).
Many legal issues could arise in the process of informed consent and informed refusal. First, failure to adequately inform the patient could be cause for legal action against the doctor. Another issue could arise if the doctor informed the patient but failed to ensure the patient understood everything clearly. Informing the patient is not enough. The psychologist must verify that the patient completely understands the information. This could be done in a number of ways, including discussions, reading materials, or in some cases, using other resources like the Internet or videos (Sabatino, 2012).
In some cases, the patient’s refusal of treatment could harm others, for instance, if they had a communicable disease. If the patient refused services in this type of situation, the doctor would have an ethical dilemma regarding what they should do and what he or she is legally allowed to do. Informed consent and confidentiality overlap in some cases, which is why it is essential that both are understood and the legal and ethical guidelines concerning both are followed (Sabatino, 2012).
Another case in point would be if the person making the decision is someone other than the patient, a parent, for example, and their decision is not in the patient's best interest. An attempt still needs to be made to inform the patient even if they are not able to give consent (Sabatino, 2012). Once again an ethical decision would need to be made regarding what is the right thing to do in this type of situation and what can legally be done.
If there are any questions or concerns, consulting with a legal specialist is always a good idea. It is better to get legal advice to ensure there is not a problem rather than putting oneself at risk of a malpractice suit. If a patient is deemed competent and refuses treatment and consequently dies, the death would not be designated as a suicide but rather natural progression of the underlying condition. The doctor would not be held liable or charged with assisted suicide in this type of situation as long as they fully complied with the informed consent process (Sabatino, 2012).
Legal issues Concerning Assessment, Testing, and Diagnosis
Legal issues regarding assessment, testing, and diagnoses can refer to the qualifications of the persons performing these services or the delivery of the services, tools used, process of evaluating the results, or any combination of these elements. Issues in one or more of these areas can result in legal actions taken by the client, including class action lawsuits by groups of individuals who believe that they were not being treated fairly or were singled out based on their race, gender, or ethnicity.
States require specific certifications to practice or conduct specialized services in the field of psychology. There are agencies that oversee this process to ensure psychologist have the required training and experience. For instance, the Association of State and Provincial Psychology Boards (ASPPB) are licensing boards for the United States and Canada. They were formed in 1961, and they develop the Examination for Professional Practice in Psychology (EPPP). This examination is used to evaluate applicants for licensure and certification. ASPPB also assist with the career development process for psychologists by providing training material, a database of state-by-state certification requirements and can help in the process of transferring licensure for psychologists across different jurisdictions (Association of State and Provincial Psychology Boards, 2013).
Another example is the American Board of Professional Psychology (ABPP) that was formed in 1947. They provide oversight by verifying psychologists have finished the education, training, and experience required for their specialty, including examinations designed specifically to evaluate the abilities necessary to deliver quality services to their patients. A specialty is a distinct focus in the field of psychology that indicates superior ability
developed through formal education, training, and experience (American Board of Professional Psychology, 2013). For instance, a psychologist who specialized in testing and assessment may need specific training to be considered a certified specialist. Testing and assessments conducted by someone not adequately trained could lead to improper diagnoses and be cause for legal action.
Standard nine of the APA’s Code of Conduct (2010) addresses issues related to assessments. It states that “Psychologists administer, adapt, score, interpret or use assessment techniques, interviews, tests or instruments in a manner and for purposes that are appropriate in light of the research on or evidence of the usefulness and proper application of the techniques” (pg. 12).
Importance and Challenges of Maintaining Confidentiality
Maintaining confidentiality is very important in any occupation related to the medical profession. There are many laws in place addressing these issues as well as guidelines developed through different organizations. According to the American Psychological Association (2010) in Standard 4: Privacy and Confidentiality, under section 4.01 Maintaining Confidentiality, it states: “psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship” (pg.7). In section 4.02 Discussing the Limits of Confidentiality it goes on to say that “Psychologists discuss with persons…and organizations with whom they establish a scientific or professional relationship…the relevant limits of confidentiality and…the foreseeable uses of the information generated through their psychological activities” (pg.7). This is a part of the informed consent process, discussed earlier.
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The United States Department of Health and Human Services (2012) developed The Standards for Privacy of Individually Identifiable Health Information, also known as the Privacy Rule, which initiated national standards designed to protect confidential health information. The Privacy Rule was developed to assist in the implementation of the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). It is designed to protect information that identifies a specific individual. This includes information about an “individual’s past, present or future physical or mental health or condition, the provision of health care to the individual, or the past, present, or future payment for the provision of health care to the individual and that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual”.
Confidentiality plays a large part in the development of trust between a patient and therapist. That trust allows the therapist to build a relationship with the client where in the client is comfortable enough to share intimate details about his or her life with the therapist so he or she can attempt to resolve any issues. Confidentiality can only be broken with the permission of the client, or their medical proxy as long as doing so does not break any laws or it can be disclosed if it is required by law under certain conditions. Those conditions include if it is needed to provide required services, obtain a consultation, protect someone from harm, or to get paid for provided services (American Psychological Association, 2010).
The challenges a psychologist faces concerning confidentiality can involve both legal and ethical concerns. For instance, as discussed in class, while it is legally acceptable to disclose minimal information as needed to try to collect payment for services provided to a client there are ethical considerations that need to be taken into account. By releasing the legally allowed information to a third party for debt collection purposes the psychologist did not break any confidentiality laws although the client may feel otherwise. The client may attempt to bring a malpractice suit against the psychologist which could in turn cost the psychologist more than the amount owed. If the client is still receiving therapy from the psychologist this could have an adverse effect on his or her treatment program and damage any trust he or she had developed. Of course, a client refusing to pay for the services that he or she received or are receiving can also damage the relationship between a client and therapist. Steps should be taken to address these types of situations directly with the client before contacting a debt collection service.
Important Role Professional Competence Plays in Professional Psychology
The definition of professional competence has changed over the years to encompass not only acquiring specialized knowledge but also to include the way that knowledge is used. It can include both intellectual competence and emotional competence. Intellectual competence includes understanding treatments, procedures, theories, and research, which we develop over time through a combination of education and experience. On the other hand, emotional competence focusses on our awareness and understanding of our own strengths and weaknesses and how they may affect us in certain situations that could arise during therapy (Pope & Vasquez, 2011). To a certain degree both of these are needed to be considered professionally competent.
One of the most used definitions of professional competence comes from Epstein and Hundert (2004). According to them “Professional competence is the habitual and judicious use of communication, knowledge, technical skills, clinical reasoning, emotions, values, and reflection in daily practice for the benefit of the individual and community being served” (pg. 1). According to the American Academy of Physician Assistants (2010) being competent only indicates that he or she meet the minimum requirements to perform at an acceptable level. Most patients want more from a psychologist than minimally acceptable performance when seeking help.
According to the APA (2010) psychologists “provide services, teach and conduct research with populations and in areas only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study or professional experience” (pg. 4). Possessing general training in the field of psychology does not mean that a therapist is qualified in every situation that could arise. If knowledge of certain characteristics or cultures is needed to treat a specific individual or population effectively than the psychologist is required to get the appropriate training, or consult with someone experienced in this area, to ensure that he or she is competent to provide the required services. This is also the case if a psychologist plans to teach, practice, or conduct research “involving populations, areas, techniques, or technologies new to them” (pg. 5).
The role professional competence plays in psychology is a very important one. Clients seek therapy to deal with emotional and behavioral problems they cannot resolve on their own. Deciding to seek therapy is not something one does without considering other options as it is not always an easy decision to make. Someone who has had a bad experience with one therapist may not seek help from another one even when he or she desperately needs it. It is essential that therapists are capable of providing the treatment or therapy clients’ need, especially when dealing with his or her emotional, physical, or mental wellbeing. The relationship between a therapist and client is based on trust. Not only can that trust be damaged by a lack of competence, it would also be unethical to attempt to provide a service without the proper training.
Influence of Legislation and Case Law Decisions on the Practice of Professional Psychology
Over the last week we have discussed a number of court cases in class that have influenced changes in the practice of professional psychology. Those include Jaffee v. Redmond Supreme Court ruling (1996) and Tarasoff v. Regents of University of California (1976).
In Jaffee v. Redmond Supreme Court ruling (1996) the concept of privileged communication was clarified, which ties in with confidentiality. In that case the therapist was a social worker who disclosed confidential information when requested by the court. While it was determined that therapy provided by a social worker was covered under confidentiality laws, the social worker was found to have given out more information than was required because she gave out additional information when it was requested. If she had fulfilled the first request only she would have been following the proper guidelines for confidentiality. This case led to extending the privilege information rule to clinical notes taken during therapy.
In Tarasoff v. Regents of University of California (1976) confidentiality was also addressed, but from a different angle. In that case the psychologist informed campus police when a client threatened to kill someone. While the client was taken into custody, he was later let go and at some point he followed through on his threat. This case focused more on the acceptable reasons to disclose confidential information and eventually led to laws that allowed notifying intended victims of a threat.
Another case, Schloendorff v. Society of New York Hospital (1914) a patient sued the doctor and hospital for performing a surgery that he did not authorize. The decision was instrumental in developing laws concerning informed consent.
Even from just these three examples, it is obvious that legal decisions have had considerable influence on the practice of professional psychology and will continue to do so.
In conclusion, providing effective treatment requires therapists not only to understand and follow laws and guidelines pertaining to informed consent, assessment, and confidentiality but also to maintain his or her professional competency. This can be done by continuing to develop knowledge of advances made in psychology in addition to legislative changes that apply to issues that could affect therapy and treatment. Many issues in psychology involve both legal and ethical considerations and lawsuits were instrumental in the development of regulations pertaining to informed consent and confidentiality. While laws may differ from state to state, ethical considerations are more consistent throughout the profession. There are many resources available outlining legal and ethical guidelines to follow in certain situations, but they may not cover every possibility. When in doubt, seeking a consultation with someone more experienced in the field or from someone with legal expertise can prevent litigation, which can be costly and time consuming.
American Academy of Physicians Assistants. (2010). Professional Competence. Retrieved from http://www.aapa.org/uploadedFiles/content/Common/Files/14-ProfCompetence.pdf
American Board of Professional Psychology. (2013). What is ABPP? Retrieved from http://www.abpp.org/i4a/pages/index.cfm?pageid=3341
American Psychological Association. (2010). Ethical principles for psychologists and code of conduct. Retrieved from http://www.apa.org/ethics/code/principles.pdf
Association of State and Provincial Psychology Boards. (2013). Information from ASPPB to Licensure Applicants and Students. Retrieved from http://www.asppb.net/i4a/pages/index.cfm?pageid=3343
Pope, K. S., & Vasquez, M. J. T. (2011). Ethics in psychotherapy and counseling (4th ed.) [Electronic Version]. San Francisco, CA: Jossey-Bass/Wiley. Retrieved from the University of Phoenix, PSYCH545—Survey of Professional Psychology course website.
Sabatino, C. (2012). Informed Consent. Retrieved from
Whitstone, B. N. (2004). Medical Decision Making: Informed Consent in Pediatrics and
Pediatric Research. Retrieved from http://tchin.org/resource_room/c_art_18.htm
United States Department of Health and Human Services. (2012). Summary of the HIPAA
Privacy Rule. Retrieved from http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/index.html
This content is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional.
Chineka DJ on August 18, 2018:
Jennifer L Black (author) from Pittsburg, CA. on March 21, 2014:
Thank you. Psychology is so multi-facetted... When I first stated studying psychology I thought I had a pretty good grasp on what it entailed. As my studies continued I discovered that there was far more to it then I thought.
Bill Holland from Olympia, WA on March 21, 2014:
Well-organized; well-written; not an easy thing to do about a difficult and complex subject.