 This episode was prerecorded as part of a live continuing education webinar. On-demand CEUs are still available for this presentation through all CEUs. Register at allceus.com slash counselor toolbox. All righty, everybody. Welcome to today's presentation on legal issues in adult mental health services. Now, obviously, I specify adult because there are a lot of other legal issues went in juvenile adolescent or juvenile mental health services. So we're just focusing on the adults today. We're going to review common legal issues in adult mental health, including their rights, their protections, issues of involuntary commitment, the ADA, the use of emotional support animals, and oh, advanced directives. I added that in and didn't put it on the objectives. So first thing to consider when we're talking about legal issues, legal sets the baseline, but then we have ethical issues that are generally a higher standard that we want to try to meet. Beneficence is the duty to act to benefit others. So when it comes to, for example, involuntary commitment, sometimes that's beneficent. You know, sometimes we're keeping somebody from doing something that's very harmful, but it can also be very harmful to somebody. Non-malfeasance means above all, do no harm. Autonomy, respect the rights of others to make decisions. You see how this is all going to play into client rights in mental health. Justice is to distribute resources equally. So that may not apply as much today. Fidelity is to maintain loyalty and commitment to the patient. You know, we want to do what's in their best interest, not do what we think is in our best interest. And generally, if we do what's in their best interest, it's also going to be in our best interest. And veracity is the duty to communicate truthfully with our clients about what we're doing, what we need to do, if we need to make a report to DCF or we're going to initiate an involuntary commitment. Sometimes it's appropriate to tell them, sometimes it's not based on their level of volatility. But those are all ethical decisions that need to be made at that point in time. Civil rights, people with mental illness are guaranteed the same rights under federal state laws as any other citizens. They don't lose their civil rights as a result of having a mental illness. So, you know, this applies to their Second Amendment rights, their First Amendment rights. And you'll understand why I'm bringing those up in a few minutes. They have the right to due process in civil commitment. The courts have recognized involuntary commitment to mental hospitals can be a massive curtailment of liberty, which requires due process protection, including a writ of habeas corpus, which is a procedural mechanism used to challenge unlawful detention. So if a client gets involuntarily committed and they've been sitting in there for a while and they're like, I don't deserve to be here. They have the right to get assistance filing a writ of habeas corpus. And they also have the right to the least restrictive alternative, which mandates that the least drastic means should be taken to achieve a specific purpose. So do they need to be involuntarily committed or do they need, you know, crisis stabilization and then discharge? Or what exactly is it that's needed? So admission to the hospital. And this is one of those hot button issues that a lot of people, I worked with one social worker who was adamantly against involuntary commitment pretty much under any circumstance. And, you know, in my 20-some odd years of practice, I think I've involuntarily committed somebody a half a dozen times, you know, and maybe not even that much. Generally, talking with the client, we can de-escalate the situation. I can help them see how it's in their best interest to voluntarily admit yada, yada, yada. So, you know, involuntary commitment is one of those things of last resort. And often when you start looking at who makes the involuntary commitments, it's done by law enforcement and sometimes medical providers as opposed to mental health practitioners. So that indicates that we may need to do some more training. But involuntary commitment, it's sought by the patient or potentially illegally authorized guardian if the adult has an authorized representative. Patients have the right to demand and obtain release. So if they're not there under court order, if they're not involuntarily committed, they can say, I'm leaving. Many states require patients to submit a written release notice to staff saying, I understand that I'm leaving against medical advice, yada, yada. OK, that's fine. But if they're voluntary, they have the right to check themselves out unless, you know, if they get there and the psychiatrist sees them and determines that they're a risk and then they try to discharge, then the psychiatrist has a choice at that point to involuntarily commit them. Involuntarily, involuntary admission or commitment is that that's made without a patient's consent. They don't want to be there. They don't think they need to be there. It can be necessary when a person who is a danger to self or others and or unable to meet their basic needs as a result of their psychiatric condition. So if they're not, you know, if they are in a just a florid psychotic episode and they're not eating because they think all the food has poison in it and they're not drinking because they think drinking water is tainted, you know, if they're in a place where they are not meeting their basic needs and they could, you know, decompensate further, then involuntary commitment may be appropriate. Some states, i.e. Florida, have a substance abuse provision for involuntary commitment. And in Florida, it's called the Marchman Act. We're not going to talk about that a lot here, but basically the Marchman Act says if somebody's substance use is causing them to be a danger to themselves or others or fail to be able to meet their basic needs. All right, so we have something popping up. Sorry. Emergency involuntary hospitalization, the commitment is specified for a period in Florida of one to 10 days to prevent dangerousness to self or others. Now we're going to talk about that in a second. There are caveats because involuntary commitment laws vary from state to state and they vary widely on who can be involuntarily committed and for how long. Observational or temporary involuntary hospitalization is used to observe, diagnose, and treat people from mental illness that are posing a danger to themselves or others. Observational hospitalization is typically a longer duration than emergency commitment. In most places, emergency commitment is 72 hours. So, you know, I said we're going to talk about some issues. I just want you to consider some of these things in terms of patient rights and, you know, what happens? How do they feel? How does it impact their willingness to talk about stressors they're having or, you know, if they're having some suicidal thoughts? How does that impact their willingness to talk about them in the future? How does it impact their liberties for free expression, etc.? So, just keep that in mind. Statewide, and this is in Florida, the number of children subjected to involuntary psychiatric commitment exams rose nearly 50% between fiscal year 2010, 2011, and fiscal year 2015, 2016. Between July 2015 and 2016 alone, so in a one-year period, more than 32,000 involuntary psychiatric exams were conducted on Florida children, according to the Baker Act Reporting Center at the University of South Florida. Now, I know we're talking about adults here, but I mean, think about it. Think, look at how much that's raising and why is that raising? Who's making these involuntary commitments? And one of the things that I found when looking through it, a lot of the involuntary commitments of children are done by law enforcement because of, you know, school delinquency or things like that. So, that's one of the things that contributes to the increase. Parents can also Baker Act their minor children. So, there are a lot more people that can initiate this, but it's still important because they're talking about expanding the, and they've actually started doing it in some states, expanding who can involuntarily commit someone. The presence of a mental illness is a prerequisite for civil commitment. In Georgia, for example, mentally ill means having a disorder of thought or mood, which significantly impairs the judgment, behavior, capacity to recognize reality, or ability to cope with ordinary demands of life. And you're probably thinking, yeah, so. Well, if somebody were being malicious and wanted to try, if they expand who can commit involuntarily, or somebody were being malicious and they can convince law enforcement that this were an issue, that, you know, maybe they're going through a really messy divorce or something, and they convince law enforcement that their significant other does not have the ability to cope with ordinary demands of life. Wow, think about it. I mean, have you ever had a plet time in your life where you just felt like you were drowning and you were having difficulty dealing with the ordinary demands of life? Have any of your clients ever experienced this? During those periods, should those people have been Baker Acted or involuntarily committed? Should you have been involuntarily committed? Because you were unable to cope with the ordinary demands of life. I mean, sometimes you got to rely on your family and friends and stuff and go, this is too much. It happens. So, you know, in most cases, I'm thinking you're going to say, no, you know, that was not an instance for involuntary commitment. So part of it depends on the judiciary and how they interpret these. And the psychiatrists when and whoever's writing the petition, how they delineate it. But it can be abused. It can be really easily abused. And that's what scares me. Other criteria frequently include dangerousness towards self or others, grave disability, and the need for treatment. Again, the need for treatment is one of those that's really vague. And you can argue, you know, in most cases, if you've got somebody who is in a severe depressive episode or, you know, in a hypomanic episode or something, you can argue that they may need treatment. But does it rise to the level of needing 24-7 hospitalized treatment? Or do they need to be in, like, outpatient? Some states, and this scares me, have recently modified their statutes to allow for involuntary hospitalization of persons who are in need of treatment but are not imminently dangerous to themselves or others. So, you know, if somebody, the court or somebody determines that this person needs treatment, but they're not really in imminent danger, the court can still mandate it. So that's kind of frightening. There have been a lot of episodes or incidences with different healthcare organizations, crisis stabilization type units, that have been accused of keeping people in treatment longer than they needed to be because they didn't want to leave any, quote, days on the table. So if, you know, their insurance authorized 20 days, the psychiatrist kept them for 20 days, even if they could have been theoretically discharged after four or five. There are a lot of stories and lawsuits about that, but I won't get into that a whole lot right now. Emergency detention is designed for people for an assessment of dangerous situations. It's generally limited to a brief period, which is usually three to five days. Where I come from, it's always 72 hours. Okay. It's from only 24 hours in a few states to 20 days in New Jersey. So in New Jersey, somebody can go into emergency detention and be stuck there for 20 days. Now, if they have a job, if they have kids at home, you know, what does this do to their life? Now, obviously, you know, in some cases, which I really believe are the rare cases, but in some cases, it's necessary because someone is really a danger to themselves or others. However, I've seen some therapists and not all, you know, and not the majority by any means, but some, there's a minority out there that are so afraid of being sued if somebody commits suicide that they, in my opinion, use involuntary commitment more often than it probably needs to be. And they rely on the psychiatrist to look at the person within 24 hours and go, no, this person doesn't need to be here and discharge them. So anyway, that's what I've observed. And, you know, some of the things I'm thinking about, because if we make it dangerous for people to talk about their depression or their anxiety or their, you know, whatever, because they're afraid they're going to get involuntarily committed, then we're perpetuating the problem and the stigma. Okay. The length of observational commitment, remember, which is longer than emergency, in states that allow it, varies from 48 hours in Alaska to six months in West Virginia. So somebody theoretically could be detained in observational commitment for six months. There's another, you know, issue, and it's an issue with the child that came up, but, you know, I want us to think about the scope of things, because right now children are kind of easy targets because a lot more people can Baker act them. But a 10-year-old with special needs, who, he was autistic, was Baker acted at his elementary school. Law enforcement says he was biting and trying to hurt himself and others. His mother said Baker acting was the wrong thing to do. He was in a special classroom. The teacher wasn't able to handle it. The school resource officer, you know, felt like he did the best thing to protect everybody's safety. But were there options? And, you know, I don't know. I wasn't in that situation. But being aware at, you know, the variety and the scope of things that people can be involuntarily committed for. The sheriff also said, well, this is a different sheriff. He was talking about background checks. So there's no such thing as a background check on a Florida gun buyer. Gun shops check for two things, a qualifying felony, or a court adjudication that the buyer is mentally ill. So if they've ever been involuntarily committed, if there's a court record of involuntary commitment, they may be denied the right to buy a gun. I know a lot of people, you know, not the majority, but, you know, people who are, you know, do have mental illnesses, do have depression, do have anxiety. And they are no more violent than, you know, Jim Bob on the street. So just mental illness alone as a disqualifying factor kind of freaks me out. I think we need to take that into consideration with other factors, like a previous history of violent behavior and not suicide, but substance abuse and, you know, all those things that we talked about yesterday that are much better predictors of dangerousness than mental illness. We had a, and then there was another story about a sheriff that was pleading with lawmakers in Tallahassee to give police the power to detain people if they see something on social media, if they see graphic pictures of rifles, blood, gore, guns, bombs, or something like the person talking about I want to grow up to be a serial killer. Again, this is really broad. So having law enforcement have the power to just show up at your doorstep because you were venting on social media or, you know, I have some friends that are just, they love their guns. You know, prior military, whatever, not everybody's prior military who loves their guns. You know, I live in Tennessee, lots of people are hunters. So they tend to post a lot of pictures about their new rifle and, you know, sometimes pictures of animals they've hunted. But, you know, where's the line? Where's it drawn? And, you know, what effect is this going to have if law enforcement officers can detain people? They get involuntarily committed, then they have a legal document saying they were involuntarily committed which may prohibit them from ever getting a gun again. You know, you see kind of where we're, the slippery, slippery slope we're going to. And I'm more worried about people's ability to live a high quality life as they define it. Obviously, there are some circumstances where it's going to be appropriate, very appropriate to investigate, but investigate is different than detain. Okay, so because of all of that, you know, it's really good if everybody has advanced directives. An advanced directive is a written document that expresses your wishes in advance about what types of treatments, services, and other assistance you want during a personal mental health crisis. So, you know, if a person is in crisis, you know, what is going to help them and what will trigger them? This is really an awesome tool period, but it falls in with that trauma-informed care philosophy. When somebody is having a crisis episode, there are some things that may trigger them. There are some things that may re-traumatize them. So, if when they come into treatment, we have them spell those out ahead of time, and we did it the last clinic that I worked at, and it was a fabulous thing, you know, if you should have a problem, what works well if we need to hospitalize you, is there a particular hospital you would prefer to go to, a particular doctor you would prefer us to call. And what is more likely to increase your level of agitation to make the situation worse? And so we know that ahead of time, because different things will trigger people in different ways. We may know, you know, for some clients that, you know, for example, if they can get out and walk around, that's worked with a lot of my clients, not every single one of them, but getting them out of the situation and helping them move those big muscles to diffuse some of that energy and anxiety and anger that they've got going on can help. Now for others, you might worry that if you take them outside, it's a less controlled environment, and, you know, they could run in traffic or something. So, you want to know what works, what doesn't. Psychiatric advanced directives promote people's autonomy and empowerment. You know, it allows them to say, I don't want this under any circumstance. You know, I don't want, if there's a particular medication that they've been on that was just horrific, they can say that at the outset. Or, you know, I know I don't want to be on this class of medications. And most of the time, you know, except for in rare circumstances that I don't even know what they would be, they will abide by that. It enhances communications between you, your doctor, your treatment team, and your family. So the family knows, you know, if Jim Bob decompensates when he's in treatment or starts to decompensate, this is what he wants to have happen. Or if he decompensates while he's in treatment, this is what they're going to do. And so I know that, you know, Jim Bob's going to be safe and have his wishes respected. Advanced directives protect people from ineffective, unwanted, or possibly harmful treatment or actions. Now ideally, you know, in any of these situations, the treatment that is being provided is high quality and ethical and wouldn't be harmful. However, you know, some people may adamantly refuse ECT, for example, electroconvulsive therapy. And it's been shown to be really effective with certain populations, but some people may say, no, under no circumstances will I do this. So we need to know that. And it helps prevent crisis situations and reduce the use of involuntary treatment or safety interventions, such as restraint or seclusion. If somebody starts to decompensate, if we can handle it and manage the crisis without triggering them or escalating them to the point where they do become a danger to themselves, an imminent danger, and they need to be restrained or secluded, things are going to go a lot better. So let's figure out how can we avoid escalating the situation. Advanced directives include medications and dosages that you know are most helpful to you and those you don't wish to receive. So, you know, for example, if there's a certain medication that I've had in the past that I know works really well for me, even though it may not be standard, you know, I would put that on my advanced directive and I would say generally, you know, this works to help me. Names of facilities or healthcare professionals you want involved in your care. People who can help you with important activities. Now a lot of people don't think about this in the advanced directive. We need to encourage clients to think about this. Who can help pay your bills? Take care of your children, pets, plants, notify your employer. You know, there are a lot of things that need to be done and if you're in the place where you're needing to be involuntarily committed, you're probably not going to be able to do that. But even if we're not talking about involuntary commitment, even if the person is just in crisis, the advanced directive kicks in and we say, all right, what's your support plan? Who can help you out? Who can, you know, help you during the times that you're not here in treatment? And you can identify if you do or do not want visitors if you're hospitalized. Some people don't want their kids coming to see them on a locked unit. Other people really want visitors. So, you know, you can state your preferences at that point. Now, it doesn't mean that they can't be changed in a certain treatment episode, but it gives a template to go off of when the person is not thinking as clearly as, you know, they normally are. One of the more powerful features of an advanced directive is the ability to designate someone else, an agent, you know, an authorized person to make decisions for you if you're admitted to the hospital. So, you can have, you know, close to your parent or somebody able to help make decisions if for some reason you can't speak for yourself or to help make decisions outside of your healthcare, you know, designate somebody who can help with, you know, getting your children to school and yada-yada. So, legal competence. You know, if you have an advanced directive, it doesn't mean you're legally incompetent. Even if you're admitted for involuntary treatment, it doesn't mean you are legally incompetent. All patients must be considered legally competent until they've been declared incompetent through a legal proceeding. So, I mean, I've worked with clients who've been in a, you know, wicked state of crisis who have been in a Florida psychotic episode and, you know, they've really been struggling. However, they were not at that point determined legally incompetent by the courts. So, we had to proceed and afford them the rights of someone who is competent. And sometimes it can be expedited, but it's important not to start making decisions for people and disempowering them because you don't think they can make an informed choice. I can think of one client I had and the story ends up really, really well, thankfully. He had been to detox, you know, a couple of dozen times already that year and he was really struggling and, you know, I went down to the detox unit and I was trying to convince him to come over to residential again to see, you know, what we could do. And he was like, no, I just, I give up. I don't want to do this anymore. There's just no hope for me. And I mean, it broke my heart because he had had some periods of extended clean time. But he was competent. He was still a little inebriated. I could still smell it on him, but he was, you know, somewhere around the legal limit or lower and he was perfectly competent. And I didn't have the concern that he was in imminent danger of killing himself. I did have concern that he might, you know, drink himself to the point where he had cirrhosis of the liver and everything else, but that's not grounds for involuntary commitment. So anyhow, there are situations where you really want to help somebody who isn't ready, willing, or wanting to help themselves, but they are competent and they are able to make decisions and you have to respect that. Implied consent. Some procedures that we perform have the element of implied consent, such as, you know, having people in group and having them do experiential activities or going to a ropes course or whatever. A lot of times the informed consent signed at the beginning of treatment kind of covers all of that. Occasionally you'll need additional consent for things. So patient rights. And in Florida, you know, I did most of my practice in Florida, we just recently moved to Tennessee, so I'm most familiar with them, but the Florida statutes actually spell out in great detail patient rights. And patient rights have to be posted conspicuously in, you know, the lobbies and areas where clients are going to see them. But it's important to recognize that patients have rights and, you know, they're competent so they have these rights. Right to treatment, which requires that medical and psychiatric care and treatment are provided to everyone admitted to a public hospital. The right to refuse treatment. They have the right to withhold or withdraw consent for treatment at any time. So, you know, if they decide they're going to check themselves out AMA, with few exceptions, they can do that. The issue of right to refuse psychotropic drugs has been debated in courts with no clear direction yet forthcoming. So, like I said, if somebody's on a crisis stabilization unit or something and the doctor determines that they need to be on anti, they need a shot of antipsychotic and they say, I don't want that. The courts are kind of ambivalent. There's not a whole lot of case law one way or another indicating whether they can say, I won't, I won't take an antipsychotic. So, you know, that's kind of a gray area that your legal team would need to figure out if you work in a situation where that might become an issue. Clients have the right to informed consent based on the right to self-determination. Informed consent must be obtained by the physician or other healthcare professional to perform treatment or a procedure. This needs to be done at orientation at admission that says this is what the program's about. This is what it looks like. This is what you're going to be expected to do, yada, yada, yada. And this is how much it's going to cost. This is how long you should expect to be here. This is how you discharge if you want to. And these are the obligations of the staff. This is what the staff is committed to do for you. And then they sign that and they are able to ask questions. The presence of psychosis does not preclude this right. So again, they are competent until determined legally incompetent by a judge. Okay, the Florida Statute Example for client rights talks about treatment access, informed consent, individual dignity, non-discrimination. Each individual in treatment must be afforded the opportunity to participate in the formulation and periodic review of his or her individualized treatment or service plan to the extent of his or her ability to so participate. I see this one violated a lot because treatment plans are made for clients and just handed to them and they say, here, this is what you're going to do. And the client is not really participatory. So technically clients could, you know, file agreements based on that. Quality services. Each individual must be delivered services suited to his or her needs, administered skillfully, safely, humanely, with full respect for his or her individual dignity and personal integrity in accordance with all statutory and regulatory requirements. Well, why is that important? Well, because quality services is defined differently by each insurance provider and by each state in many cases. So it's important to recognize that, let me see if I can get these to come up real quick. Yeah, open it. You want to go to the level of care guidelines or the medical necessity criteria and scroll down, you know, for, let's just look at page six, acute inpatient for adults. So it says that if you're going to get reimbursed for acute inpatient for adults, you have to have a round-the-clock intensive psychiatric medical and nursing care, including continuous observation and monitoring, acute management to prevent harm or deterioration, daily monitoring of medication effects and side effects, and a contained environment for specific treatments that could not be safely done in a non-monitored setting. Within 24 hours prior to admission, there has to have been a face-to-face individual assessment. So anyway, you read through these and it tells you what needs to be done, when it needs to be done, how often it needs to be done. It'll talk about whether a psychiatrist has to be on-premises or just available by phone. You know, there are a lot of things that you can find, and we're not going to go through every single one of these. But there is a great range of the options that are available. Now, for Magellan, you know, the clinical practice guideline audit checklist, they're going to be looking for this in the medical record. They're going to look for what you did about things, how quickly things were done, and then they'll score you out. Some of them are a lot easier to complete than others or to comply with than others. But it's important to know, you know, based on your providers, what's required. The Florida statute also requires communication of abuse reporting and visitation, including private mail. So clients have to have the right to make and receive phone calls. You can limit this right. That goes in the informed consent, and there has to be a clinical reason for limiting that right. Abuse reporting, they need to be able to report abuses by staff at any point in time. They have to have access to a phone, and they have to have visitation and the ability to access mail that hasn't been open, read, or, you know, screened in any sort of way. If these are not provided, there has to be an adequate clinical rationale for that. And sometimes there are in treatment programs, but most of the time, you know, this happens. Care and custody of personal effects. They have the right to have certain personal effects, and if they're not allowed to have those on the treatment program, on the wing, they need to know that their personal effects are going to be taken care of while they're in treatment. Confidentiality, they have the right to counsel. Now it's not counseling, that's counsel. So if they need to file a writ of habeas corpus, they have the right and ability to access a lawyer. So restraint and seclusion. Now this is above and beyond. This is restraint and seclusion is not always part of involuntary commitment. It's not always part of treatment. A lot of places have gone to a non-restraint policy. The doctrine of least restrictive means of restraint for the shortest time is always the rule. So we don't want to have people in restraints longer than necessary. We think of the media that promotes the idea of, you know, five-point restraints for people and putting them in basically solitary. You know, thankfully that doesn't happen, or it's not supposed to happen, the majority of the time, like 99.99% of the time. You want to use the least restrictive means. Legislation provides strict guidelines for the use of restraint and seclusion for when behavior is physically harmful to the patient or others. If you've got somebody who is aggressively headbanging and won't stop or trying to hurt someone else, when least restrictive measures are insufficient. So if they're headbanging, the first option is not restraint. The first option is to try to de-escalate the situation, try to figure out how to intervene with that behavior. And that'll depend on why they're doing it, if it's a side effect of substance use like PCP. If they have an autistic disorder, if they are, you know, depressed, if they have a headache, there are a lot of different reasons, and each one of those would indicate a different reason to, or a different method for intervention. So you want to try to intervene. You know, restraint and seclusion is like the absolute last-ditch thing. If there's a decrease in sensory over-stimulation. So when somebody is in seclusion only, you know, they don't have people looking at them and people talking to them and input coming in and going out. So it allows them to decompress a little bit. When a patient anticipates that a controlled environment would be helpful and requests seclusion. So sometimes clients know that they're starting to get overstimulated, they're starting to get triggered, or, you know, they're starting to hear voices and they, for their own safety and everyone else's, they need seclusion or, you know, a timeout for whatever reason. And, you know, you can use it in that particular circumstance. So seclusion can be used without restraint. They don't have to go together. But restraint always, or should always go along with seclusion. You don't want to have somebody restrained on award with eight other people that are restrained. That's archaic. Recent legislative changes have further restricted the use of these means and some facilities have instituted restraint-free policies. You know, if you look at the JCO standards and the CARF standards, they're really against seclusion and restraint, except as a last absolute ditch effort. And there are all kinds of, I remember writing the standard operating procedure for seclusion and restraint for our manual. And you had to check on the person every 10 minutes and it was very specific about exactly what needed to be done. But it can be, you know, like anything else, you know, it can be abused. So restraint and seclusion. Also, what does that say to the person? I mean, as far as their empowerment, they are being completely disempowered. They are being put in this uber-vulnerable position. So that could trigger somebody that has a trauma history and exacerbate the situation. You know, you got to look at the consequences of what's going on and can it be managed without doing some of these things. You know, a lot of times if you move someone, you know, out of the day room or the milieu into a private room where it's just you and them. So they're not secluded. You're having an individual session. It gets that stimulation down and you can de-escalate and help them, you know, recompose. Patient confidentiality is another huge legal issue. And, you know, HIPAA, CFR 42 part two, there are a lot of rules and regulations. Let's just remember the big picture. What are we trying to get at here? We don't want patients' information getting into the wrong hands. We don't want patients' information, you know, just out there for the public. So confidentiality is a right of all patients. And all of our codes of ethics assert that we have the duty to protect confidentiality. HIPAA was instituted in part to help protect confidentiality as well as a bunch of other things. HIPAA says that health information may not be released without a patient's consent except to those people for whom it is necessary in order to implement the treatment plan. So you can, without a release, release information, without a signed release of information, you can communicate patient information to other people involved in the coordination of care. Exceptions to patient confidentiality. So when you wouldn't have to have a signed release, and most of us know this, but let's just refresh it, duty to warn and protect third parties. If there's a potential victim, you know, an imminent threat to an identified victim is what most states identify as the rule. Most states have similar laws regarding duty to warn third parties of potential life events. You need to know your state requirements. Staff counselor report threats by patients to the treatment team. So, you know, that's communicating with the treatment team. And in most agencies, you know, your director, your vice president, your risk manager are all kind of part of the treatment team and they have a need to know at that point in time. So if your client indicates that they're suicidal or homicidal or makes a threat of some sort, not necessarily one that you're going to involuntarily commit for, but they make a threat that you believe is credible, then you may need to run it up the chain and share it with the other people on the treatment team. We had a 24-hour facility. So at each shift change, we had a book that we noted things in. And then at shift change, we would kind of all get together and spend five, ten minutes. You know, that's all it required. We were talking about what happened, you know, whatever. If we had a client on Suicide Watch, we'd indicate, you know, who it was, why they were on Suicide Watch, what their status was. And they had a chart and they were supposed to rate their mood every single hour. And, you know, we were managing without involuntarily committing, which would have been another program in another building. And in most states, licensed clinicians and enforcement can initiate involuntary commitment. So, obviously, you don't need to sign release of information to initiate involuntary commitment. When it all possible, get the clients to voluntarily commit. Child and elder abuse reporting is another instance where you may be required to make a report. Child abuse in all states. Elder abuse in most states. Many states specifically require counselors to report suspected abuse. And most abuse hotlines are really awesome if you've never had to call one. The interactions that I've had, you know, I would call up and I would say, hey, you know, I'm so-and-so, I've got this situation. And let me tell you about it. Does it rise to the level? Because sometimes you're on the fence and you're like, I don't know if this is a report or not. Sometimes it's really clear. But they were always really good about going, you know what, no, that's not a report that I'm going to take. And you would get their name and their badge number and put it in your file. And, you know, I attempted to make the report. They said, no, we're done. So that also helps because you're getting consultation from that agency about, you know, is this a report that needs to be made? So don't fear it. And I was always taught in those situations if you were on the fence to say, I've got a situation and not release patient identifying information right away. And if they felt that it rose to the level of needing a report, then you would give them all the nitty gritty. Your agency may have different rules. I'm just telling you how I was trained. Numerous states have also enacted elder abuse reporting statutes. Agencies receiving federal funding, Medicare, Medicaid, SSI, must follow strict guidelines for reporting abuse of older adults. So if you happen to work in a facility that takes Medicare or Medicaid and, you know, where I used to work, obviously because of statutory regulations, we couldn't take Medicare and Medicaid for residential. But we did take it for our outpatient services and our severely persistently mentally ill clients who were on the Act and Fact team. And I'm just telling you, the Act and Fact team. And so the question arises, you know, if you have an older adult in residential and you're not taking Medicaid monies for residential, are you held to those same standards because the agency as a whole in some area receives Medicare and Medicaid? Our agency's determination was, yes, if we receive it for any program, then every program has to be held to those standards. But, you know, that was my agency. So, you know, those are things that you need to consider. And elder neglect also may be reported in some states. So if you've got, you know, somebody who's coming to treatment and, you know, you think that their caregivers are not providing them with adequate food or they're keeping them locked up, you know, 20 hours a day or something, you can report that in some states. Tort law applied to psychiatric settings, oh boy. Protection of patients, legal issues common in counseling are related to a failure to protect the safety of patients. So when we get sued, you know, a lot of times it results from a failure to either protect the patient physically or emotionally. If we fail to protect their rights, if we fail to protect them and create a safe environment emotionally for them, we also might have lawsuits filed against us. Protection of self. Counselors must protect themselves in both institutional and community settings. It's important for us to participate in setting policies that create a safe environment. So we're going to put our two cents in. I remember one situation we got involved in where for some reason administration decided that they wanted to have cameras in every single, they wanted to have camera monitoring of the facility and that included cameras in the group rooms. Now, you know, I can hear some of you just grinding your teeth right now and that was kind of the reaction we had. There was no sound to it so you couldn't hear what was being said but they were you know, visual cameras. And the clients got really upset as did a lot of the staff. So it was up to line staff to go back and go yeah, we got a problem with this and it was up to us to empower the clients to file grievances and tell administration what the problem was, why they thought it was a problem and you know move on from there. Eventually they decided no, we won't put the cameras in the group rooms or the bathrooms but everything else was fair game. However, you know that's one of those times where it was up to the counselors to create a safe environment because the client did not feel safe sharing their stuff in group with big brother watching. And other things for safe environments, we want to look at bathrooms, we want to we want to look at physical safety, lighting access all those sorts of things. But we also don't want to make it feel like a prison when possible. Negligence and malpractice. Negligence or malpractice is an act or failure to act that breaches the duty of care and results in or is responsible for a person's injuries. Okay, so we all kind of knew that. The elements necessary to prove negligence are that you had a duty, you know, they were your client that has to be proven. So if you have a client that you've never met before and you know you call them, they've got an assessment appointment on Tuesday and Monday they commit suicide. It's a tragedy. Don't get me wrong. However, you know at that point in time you know were they actually your client and that would be something for the for the legal people to work out. One camp the HIPAA camp will say that as soon as you agreed to accept them for an appointment they became your client and everything henceforth and forevermore became protected health information. But what is your duty to them before you've even ever met them? So breach of duty. So you had a duty and you didn't do it. You didn't protect them. You didn't do something you were supposed to do. There has to be a cause in fact. So they have to be able to show that what you did led to this client's injury in some way. And the proximate cause. You know it has to be shown that it was that led to it. Damages for cause in fact are evaluated by asking except for once what the counselor did would this injury have occurred? So you know maybe the client called you three times and wanted to schedule an emergency appointment and you were in clinic all day long and didn't get those phone messages and the client attempted suicide. So we want to say you know except for the fact that you didn't return their call like answer it when they called would this injury have occurred? You know that would be something again the lawyers need to argue. So they want to look for other reasons that this might have happened you know and take away some of the causation. The proximate cause is evaluated by term determining whether there were any intervening actions or individuals that were in fact the causes of harm to the patient. So what happened? Were they you know some jails take away clients medication as soon as they get there and they're like well let's see how you do not on your medication and if you can be stable then we're not going to pay for your medication. Well that can be considered a proximate cause if you have a client who starts to rapidly decompensate when they are abruptly taken off their meds. Damages include actual damages as well as pain and suffering and foreseeability of harm you know they want to look and say what is the likelihood that this would have happened under these circumstances so you know this happened it was an unfortunate event but was it foreseeable was the person able to foresee it. You know think about driving home from work and you get into a really bad car accident was that foreseeable probably not I mean you drive the same route every single day during the same time where there's the same amount of traffic and it just wasn't a foreseeable action on that day so there's a lot that goes into negligence and malpractice but you need to be cognizant if you have a duty so let me pose another question to you if you're working on a residential unit and you're part of a multi-disciplinary team and you have a case load of eight clients everybody has a case load of eight clients and Sally's one of Sally's clients starts to evidence depression and suicidal ideation you know not huge but you can tell there's a definite change in mood but it's Sally's client so you tell Sally is that a breach of duty you know if the client is starting to espouse suicidal ideation is telling Sally that her client is decompensating enough or do you have the duty to protect that client and intervene at that point in time and talk to the person so these are things that come up in clinic situations where there's multiple clinicians and you've got a client who is you know decompensating in some way or going into crisis but it's not your client because you're an employee at that agency is it your duty and because you are licensed is it your duty to intervene and I think most of the time when I've asked this question people have said yeah it's your duty to intervene you know above all do no harm and beneficence and everything you need to do what's right for the client and saying you know I'll tell your therapist you know just hang tight that doesn't really communicate a whole lot of empathy and caring so you want to look at it from you know multiple perspectives determination of standard of care codes of ethics like I said before set a higher standard than state law we shouldn't aspire to be legally compliant and that's it we should aspire to be legally and ethically compliant counselors are held to standards of care provided by other counselors possessing the same degree of skill or knowledge in similar circumstances so you know a LPC is not going to be held to the same standard that a psychiatrist is going to be because they have different training they have different skills and different knowledge so you're not you want to look at would someone else in your position have reasonably done the same thing hospital policies and clinic policies and procedures often set up institutional criteria for care so there's no guesswork about what needs to be done but every once in a while a situation is going to come up where you got to use good judgment and say what's in the best interest of this client you know legally I want to protect his rights however ethically what do I need to do to ensure safety standard institutional policies do not absolve the counselor of responsibility to practice on the basis of professional standards of care so just because it's not in the manual you can't say nobody told me to common sense would say clients in crisis you need to step up when there's suspected negligence most states require clinicians to report risks of harm to the patient so if there's a risk of harm from electroconvulsive therapy or particular medications or whatever we need to tell clients about that ahead of time that's part of the informed consent and if we don't and if they're injured you know we're in a whole lot of problem the counselor has the obligation to report peers suspected of being chemically impaired now some states say you need to report directly to the board if you're working you're in independent practice and that person's an independent practice you may need to make the report directly to the board if you are both licensed clinicians at the same agency you may report you may be required to report to the supervisor most ethical codes encourage you to approach the person first and try to intervene with them and get them to self report just like you would do with the client you're not going to go and make a DCF report most of the time without first going to them and going a DCF department of children and families report needs to be made I would like you to be the one to do it and I'll help you through the process or whatever because that looks better in the court records and everything else if they're willing to make that if you just kind of go behind their back so we want to make sure that we if possible intervene with the clinician if a counselor knows physicians' orders need to be clarified or changed it's the counselor's duty to intervene and protect the patient well when would this happen well if a patient failed to tell the doctor she was drinking a fifth each night in order to pass out so her husband could have sex with her had that happen once you know it was really important that the doctor knew that because she was on some pretty intense psychotropics too and it was potentially deadly if the patient is taking meds from multiple non-coordinated doctors sometimes it's doctor shopping sometimes it's just especially if you have older patients or patients that are medically complex they may have you know a pain physician and a general physician and a psychiatrist and they're not all in the same wavelength migraine medication increases serotonin SSRIs increase serotonin the combination of those two drugs you know if the migraine doctor doesn't know that the person's on antidepressants and they prescribe and they're taking at the same time can, not always, but the combination of those two drugs can raise serotonin levels high enough to cause serotonin syndrome which can be potentially life-threatening or if the patient's not taking meds as prescribed sometimes it's necessary in the coordination of care to let the doctor know I usually try to advocate with the client to talk to the doctor about why they're not taking them as prescribed because usually it has to do with side effects or cost abandonment is a legal concept that may arise if we don't leave patients safely back in the hands of another healthcare professional before discontinuing treatment it is important when you discharge a client to make sure that they have somewhere else to go or they can come back to you if they should have a recurrence the concept is also true if a client suddenly quits coming to counseling you can't just, ethically and sometimes legally you can't just discharge the client and say well quit coming, oh well you need to show that you made an attempt to follow up with that client and provide them referrals in order to eliminate the risk of being accused of abandonment and yes I would agree in any of these situations seek consultation make sure that you've got an attorney that is versed in mental health issues services now where you can have an attorney on call for a monthly fee so you're not paying like $2,000 a month or something or $150 an hour you pay a little fee and you've got somebody you can call and say let me run this by you and get some information and that's more cost effective for those of us in independent practice the ADA prohibits discrimination based on disability in the full and equal enjoyment of good services, facilities, privileges advantages or accommodations of any place of public accommodation by any private entity so a place of public accommodation means any facility that's operated even by a private entity whose operations affect commerce so if you're a private clinic you can't say well I'm not a public entity yes you are if you serve the public you're a public entity according to the ADA we can't deny an individual the ability to participate based on any of those factors we cannot give them an unequal benefit and that includes an enhanced benefit over people who don't have a disability under the ADA so we need to make sure everybody's got equal rights we need to make sure that we integrate whenever possible sometimes it's not appropriate to put somebody who is cognitively impaired with people who aren't in a group situation where the person who's cognitively impaired is not going to be able to keep up or process the information the same way but when possible we do want to integrate people I had a client one time who had a bad back and she couldn't sit for the full hour of group well that didn't mean she couldn't be in group we just had to provide her a chair that was comfortable enough to sit in and allow her to get up and stand at the back of the room when she needed to so she was integrated into services they need to have the opportunity to participate in programs or activities that are not separate or different than what people without disabilities have access to now this is the part I wanted to focus on because I know a lot of people are in private practice and they have an office at their home when a place of public accommodation is located in a private residence the portion of the residence used exclusively as a residence isn't covered by this part but that portion used exclusively in the operation of the place of public accommodation or that portion used for both public accommodation and residential services is covered by this part so that means those elements used to enter your home office including the homeowner's front sidewalk if any the door or entry way which has to be big enough to accommodate a wheelchair hallways and those portions of the residence interior and exterior available to or used by customers or clients including bathrooms so if you have a home office and it's this beautiful little attached thing has its own separate entrance but you don't have a bathroom and they've got to go through your house to get to your bathroom well every space through the house to the bathroom and the bathroom have to be ADA compliant now there are some exceptions when it would cost too much to get it upgraded but the ADA does say that when possible when it's reasonable all of these things need to be compliant this part does not the ADA does not prohibit discrimination against an individual based on that individual's current use of illegal drugs now you can't deny an individual services provided in connection with drug rehabilitation to an individual based on that person's current illegal use of drugs if the individual is otherwise entitled to those services so if you provide to say well you can't come into drug treatment because you're using illegal drugs you may say you got to go to detox first but a drug rehabilitation treatment program may deny participation to individuals who engage in illegal use of drugs while they're in the program so once they're in the treatment program they've gone through detox you can discharge them if they continue to habitually use a public accommodation shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who has successfully completed drug rehabilitation is participating in supervised rehabilitation or has been erroneously regarded as engaging in such use so if they have a rap sheet a mile long of possession, possession, possession but they've never been convicted you can't hold that against them so finally emotional support animals the merman fuzzies it's any type of assistance animal that is recognized as a reasonable accommodation for a person with a disability under the fair housing act the assistance animal is not a pet according to the U.S. Department of Housing and Urban Development there are only two questions that HUD says a housing provider should consider with request for an assistance animal as a reasonable accommodation does the person seeking to use and live with the animal have a disability physical or mental that substantially limits one or more life activities if yes go to the next thing does the animal provide emotional support that alleviates one or more of the identified symptoms or effects of the person's existing disability if yes you got your answer they're allowed to have them HUD states that for the purposes of reasonable accommodation requests neither the FHA Federal Housing Authority or Section 504 requires an assistance animal to be individually trained or certified so all these places that say you have to be certified to you have to have your animal certified you have to go through this expensive training HUD says no you know for the purposes of housing that's not true both the ACAA which is the airline act and the FHA only apply to people and their pets with an ESA emotional support animal letter from a licensed mental health professional getting the animal registered is completely unnecessary airlines may require advanced notice for certain accommodations such as medical equipment or electronic wheelchairs and may require notice for ESAs depending on the individual air carrier guidelines the air carrier act requires that airlines accommodate emotional support animals if the owners have verified identification emotional support animal owners are not required to sit in any particular location unless the animal is large enough to obstruct an aisle the air carrier act also restricts airlines from charging fees for accommodating disabled persons with an emotional support animal so where they can charge fees for transporting dogs in crates or whatever they can't charge fees for their emotional support animals JetBlue, Southwest and United all have different policies I believe United has three forms that need to be filled out and completed by the vet, by the licensed professional counselor and by somebody else indicating that the animal is needed and is in good health avoiding liability always respond to the client educate clients about things that are coming up and services and whatever comply with quality standards of care make sure the care is supervised adequately all these should be no brainers adhere to the counseling process document carefully what you do and sometimes what you don't do follow up and evaluate and maintain a good interpersonal relationship with the client and family you know if you have a good rapport your treatment is a lot better but you're also going to be a lot more likely to avoid liability there are various legal issues in adult mental health regarding client's rights involuntarily commitment and treatment advocacy and preventing harm to themselves as well as to others informed consent advanced directives and emotional support animals are only a few so when we're talking about legal issues we're really talking about protecting the rights of our clients not only for quality treatment but to live a life that they deem is rich and meaningful if you enjoy this podcast please like and subscribe either in your podcast player or on YouTube you can attend and participate in our live webinars with Dr. Snipes by subscribing at allceus.com slash counselor toolbox this episode has been brought to you in part by 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