The Standard of Care is one of the most important constructs in medicine and mental health. Most broadly, the standard of care has been defined as the usual and customary professional standard practice in the community. It has been described as the qualities and conditions which prevail, or should prevail, in a particular mental health service, and that a reasonable and prudent practitioner follows. The standard is based on community and professional standards and, as such, professionals are held to the same standard as others of the same profession or discipline with comparable qualification in similar localities (Caudill, 2004; Doverspike, 1999; Woody, 1998; Zur, 2007a).
There is no one textbook or set of rules that define the standard of care, and some (i.e., Williams, 2003) go as far as to suggest that it is nothing more than a perception. Reid (1998) suggests that the standard of care is determined by what is good for patients. The standard of care, he asserts, "is usually correlated with professionally accepted clinical texts, clinical journal articles, clinical training programs, and what real doctors do across the country" (p.1). Some authors (i.e., Grosso, 1997) have described three standards of care, clinical, ethical and legal, that must be integrated to form the final standard of care.
The standard of care is a minimum standard, not a standard of perfection. Simply making a careless mistake or making an error in judgment does not put a therapist below the standard of care. Unless there is a duty, the standard focuses on the process of decision-making rather than on the outcome. Psychotherapists are not expected to be perfect, nor are clients guaranteed positive or desired results (Caudill, 2004). For a psychotherapist to successfully be sued by a plaintiff, a negative outcome such as suicide is not sufficient proof of sub-standard care. Plaintiffs must establish that the therapist acted below the standard of care. Such sub-standard care can be the outcome of intentional or negligent acts (Woody, 1998). Similarly, administrative judges or licensing boards may sanction a psychotherapist if they find that the therapist operated below the standard of care.
The standard of care in courts and licensing board hearings is primarily determined by testimonies from expert witnesses. Attorneys on both sides often present conflicting expert testimonies about the standard of care. Adding to the complexity, in recent years one of the biggest problems is that risk management practices, spurred on by the insurance companies, have often been confused with the standard of care (Williams, 1997, 2003).
The fact that there are hundreds of different psychotherapeutic orientations (Lambert, 1991), and many different types of communities and cultures, make the concept of the standard of care extremely complex, illusive and controversial. Besides the agreement never to harm or exploit clients, to treat them with respect and dignity, and to protect their privacy and autonomy, there is little agreement among practitioners in the field about what constitutes proper care. A New York City psychoanalyst's treatment of anxiety is likely to be very different than an existentialist's treatment of the same condition in rural Idaho or the local counselor's treatment on the Indian reservation in Arizona.
In order to operate within the standard of care, obviously one must first understand it and the complexities therein. Regrettably, most therapists have only a vague notion of the standard of care (Caudill, 2004). Even more disturbing and dangerous is when expert witnesses themselves do not understand the essence of the standard of care, and in their court and board testimonies erroneously equate risk management or analytic guidelines with the standard (Lazarus & Zur, 2002; Williams, 1997, 2003; Zur, 2007a,b). The field in general has been led to view the standard of care in a narrow and inaccurate way, primarily through the influence of attorneys' presentations and columns in professional newsletters, risk management expert's teaching at continuing education seminars, and by graduate school and continuing education ethics instructors.
This paper attempts to shed light on the illusive and complex nature of the standard of care in psychotherapy and counseling. It defines the standard of care, outlines its most important elements and explains what the standard is not. Additionally, it differentiates between risk management and the standard of care and gives a basic idea of what it takes to practice within the standard.
Elements from which the Standard of Care is Derived
Following are the six elements from which the standard of care is derived. Several of these elements, have also been described by Caudill (2004), Doverspike (1999), Reid (1998) and Williams (1997, 2003), among others.
Each state has many statutes, such as Child Abuse, Elder Abuse, Domestic Violence Reporting and other laws. Obviously, if the statute mandates that therapists act in a certain way, such as reporting a suspicion of child abuse, not doing so is clearly below the standard of care.
- Licensing Boards' Regulations:
In most states, there are extensive regulations governing many aspects of psychotherapy practices. These often include the rules about mandated continuing education for licensed psychotherapists, who may or may not take the licensing exam, licensing fees, how to renew one's license, regulation of supervision, etc.
- Case Law:
Case law is one of the cornerstones of the standard of care. No case is more famous for having created a duty for psychotherapists than the Tarasoff decision of the California Supreme Court in Tarasoff v. Regents of the University California. This case articulated the duty to warn of a patient's threat to harm a third party. Since then, many other states also obligate their mental health professionals to do the same. Along the same line of thought, several experts have predicted that HIPAA regulations will become the standard of care through case law (Harris, 2003).
- Ethical Codes of Professional Associations:
The professional associations' codes of ethics are an important but also controversial part of the standard of care. American Psychological Association (APA, 2002) ethical principles apply to APA members, but in most situations they are also applied to non-member licensed psychologists. Similarly, social workers are often held to standard set by the National Association of Social Workers (NASW, 1999) code of ethics, regardless of whether they are NASW members or not. Most counselors are held to the standards set by the ethics codes of the American Counseling Association (ACA, 2005) or the American Association of Marriage and Family Therapists (AAMFT, 1998). Many states have officially adopted APA or NASW codes of ethics as the licensing boards' standard for psychologists and social workers respectively.
Unlike most statutes, case law and regulations, the codes of ethics are unclear about what kinds of behavior are mandated or prohibited. Bersoff (1994), Fleer (2000), Williams (2003) and others have noted how the ambiguity of the APA ethics code can be easily misinterpreted and used against psychologists. In other words, the breadth and vagueness of the codes has enabled many attorneys, boards and their so-called experts to interpret the codes in a way that has led to the sanctioning of therapists who supposedly practiced negligently, below the narrowly interpreted standard of care.
To further complicate things, while the state licensing boards may have adopted the codes of ethics of major professional organizations as their guidelines, the APA Ethics Code of 2002 states clearly that "The Ethics Code is not intended to be a basis of civil liability" (p. 1061). In other words the codes of ethics are not supposed to be simply equated with the standard of care, which is the basis for civil liability. The code further states, "Whether a psychologist has violated the Ethics Code standards does not by itself determine whether the psychologist is legally liable in a court action, whether a contract is enforceable, or whether other legal consequences occur" (p. 1061). Additionally, the new code defines several of the qualifiers, such as the term "reasonable." It states, "As used in this Ethics Code, the term reasonable means the prevailing professional judgment of psychologists engaged in similar activities in similar circumstances . . . (p. 1061). It remains to be seen if the changes in the new code achieve their goal to reduce the use of the codes as an unfair weapon against psychotherapists in criminal, civil and administrative proceedings.
Practitioners who present themselves as specialists or practice in a more specialized area are likely to be held to the ethical standard articulated by a more specialized professional association. For example, those who present themselves as sex therapists or practice sex therapy are likely to be accountable to the code of ethics of The American Association of Sex Educators, Counselors, and Therapists (AASECT). Similarly, those who present themselves as body psychotherapists or practice body psychotherapy are required to follow the United States Association of Body Psychotherapists (USABP) code of ethics.
- Consensus of the Professionals:
In a field that is comprised of hundreds of therapeutic orientations (Lambert, 1991), consensus is hard to come by. This relatively vague aspect of the standard of care is primarily derived from professional publications, guidelines and presentations. It may include official guidelines published by professional associations, such as the general practice guidelines published by the American Psychiatric Association (ApA, 2004) or by more specific professional association guidelines for child custody, such as those by the American Psychological Association (APA, 1994).
A highly controversial issue is the application of treatment protocols of what have been called Empirically Supported Therapies (EST) or Evidence Based Therapies (EBT). These guidelines were published by several organizations, such as Division 12, Society of Clinical Psychology, of the American Psychological Association (Task Force on Promotion and Dissemination of Psychological Procedures, 1995). These guidelines have met with enormous opposition from all corners of the field of psychology (Koocher, 2004; Lampropoulos, 2000; Levant, 2004). These protocols have been criticized for their lack of validity, narrow focus and even for being biased and discriminatory against therapeutic orientations that cannot be standardized or easily quantified. These therapeutic orientations include Humanistic, Existential, Psychoanalytic, Psychodynamic, Family and Systems. Also, in response to the Division 12 Task Force report, the Division of Humanistic Psychology (Div. 32) of APA responded with a report of its own in 1997 titled, Recommended Principles and Practices for the Provision of Humanistic Psychosocial Services: Alternative to Mandated Practice and Treatment Guidelines. (Task Force for the Development of Practice Recommendations For The Provision of Humanistic Psychosocial Services, 1997).
To follow the standard of care, therapists are expected to also be aware of the contents of their professional associations' official publications, such as newsletter and journal articles. While therapists are not required to follow the recommendations or guidelines in such publications, they are expected to be aware of them and, when appropriate, consider them in their clinical and ethical decision-making. Some recent examples of such concerns involve the validity of and clinical approach to, repressed memories and dual relationships.
The standard of care is a particularly difficult issue in psychotherapy, as there are hundreds of different orientations and approaches to treatment (Lambert, 1991). Each is based on a different theoretical orientation, a different methodology, philosophy, belief system and even worldview. Beyond the agreements of do not harm, and do not have sex with current clients, and always respect clients' dignity, autonomy and privacy, there is no consensus on how to intervene, help or heal. For example there is no one standard, or method or way for the treatment of anxiety. Psychoanalysis, cognitive-behavioral, existential, biologically based psychiatry, Gestalt and pastoral counseling all define, explain and treat the anxiety in very different terms. Not one of them will follow the others' standards.
An additional complexity of this part of the standard is what has been called "respected minority." This doctrine may apply if the scientific or research support of the technique is not well established (Reid, 1998). An example is the employment of psychoanalytic or existential psychotherapy for major depression. While there is a lot of research to support a biological intervention, there is also a substantial body of knowledge that provides a theoretical framework for analytic or existential treatment of major depression. Prudent practitioners can apply psychoanalytic or existential treatment for major depression without falling beneath the standard of care. However, in an ideal world the practitioners' clinical notes would indicate that they are aware of and considered the treatment option of psychotropics.
The "respected minority" doctrine also applies to new techniques, which as yet do not have well established scientific or research support. This provision allows for new or "experimental" psychotherapeutic techniques to be carefully, cautiously and ethically employed even though the theories and/or practices are still being developed and tested. Most successful and effective techniques started out as "experimental or "alternative" techniques prior to being tested, validated, recognized, and employed on a broad scale.
As a result of the multitude of legitimate, established and highly diverse therapeutic orientations in the field of psychotherapy, most experts agree that when it comes to the standard of care, majority should not rule and diversity should be upheld.
- Consensus in the Community:
The standard of care is also bound by community norms. Consequently, different communities, which abide by different cultural customs and values, have different standards. Gifts, touch and attending ceremonies and rituals are normal and expected in Hispanic, Jewish or American Indian communities (Lazarus & Zur, 2002; Zur, 2001). Bartering and social dual relationships between therapists and clients are an unavoidable part of rural living (Zur, 2004). Complex dual relationships between therapists and clients are inherent, and, in fact, mandated by law, in the military (Zur & Gonzalez, 2002; Zur, 2007a). However, dual relationships are not as common in highly populated metropolitan areas and large cities as they are in rural areas. As will be discussed below, this important part of the standard of care, which is based on community standards, has often been erroneously ignored and dismissed by experts, boards and courts.
What the Standard of Care is Not
The standard of care has often been viewed in inaccurate ways. Following is a non-exhaustive list of what the standard of care is not.
- It is not a standard of perfection. It is the standard based on the average practitioner and on reasonable actions. Caudill (2004) calls it a "C student standard." Simply making a careless mistake or making an error in judgment does not put a therapist below the standard of care.
- It is not guided by risk management principles. One of the biggest and most costly damaging errors by expert witnesses, attorneys and licensing boards has been confusing the standard of care with risk management principles (Lazarus & Zur, 2002; Williams, 1997; Zur, 2007b). While the standard is based on legal-professional-communal principles, risk management guidelines are geared almost exclusively to reduce the risk of malpractice for therapists so insurance companies will reduce their financial liability.
- It does not follow psychoanalytic or any other particular theoretical orientation. The standard is not necessarily, based on psychiatric, biological, analytic or any other theoretical orientation. The standard is theoretically neutral. Attorneys and so-called experts have often presented the cold and distant psychoanalytic guidelines as the basis for the standard of care. This is an unjust and harmfully biased stance against most practitioners in the field who practice behavioral, cognitive, family, humanistic, feminist or group therapy (Lazarus, 1994; Williams 1997).
- The standard is not determined by outcome. When therapists use a process that falls within the standard of care, they are not negligent, even if the outcome is negative. An unfortunate outcome, such as suicide or homicide, is not necessarily translated as substandard care. The emphasis of the standard is on the process of clinical-ethical-legal decision-making rather than on its outcome.
- The standard is not permanent or fixed. There are several forces that continuously affect the evolution of the standard of care. Generally, it continues to evolve as more practitioners practice in new or modified ways. New statutes and new case laws change the standard. The continuously revised professional ethical codes are also likely to shape the standard. Changes can also be through the publication of new research findings, new practice guidelines or new theoretical breakthroughs.
The proliferation of risk management practices, regrettably, is also likely to influence the standard of care. Following is a borrowed example from gynecology, where there is a requirement that a woman chaperone be present during a pelvic exam. Williams (2003) describes how the chaperone's primary role is to protect the physician from false accusation, criminal complaint or lawsuit. Before chaperoning became part of the standard of care, some women preferred not to have such a witness, especially if they had a long, trusting relationship with their physician or if the physician was a woman. However, today, not having a witness is considered practicing below the standard of care. This kind of trend is likely to lead psychotherapy towards an extremely narrowly defined standard of care, which will tie the hands of most practitioners who are not wedded to analytic or risk management practices. Lazarus reflects on this trend. "One of the worst professional or ethical violations is that of permitting current risk-management principles to take precedence over human interventions" (1994, p. 260).
- It is not determined by cost. The standard of care is not concerned with cost-effectiveness, reducing the general cost of health care or with saving money for insurance companies or managed care organizations.
The Standard of Care and Risk Management
One of the most disturbing developments in regard to the standard of care has been its increased susceptibility to influences from insurance companies and litigating attorneys. As with the example from gynecology above, we see slow but steady influences of risk management practices on the standard of care. Because there is no single text that articulates an agreed upon standard of care, the standard is primarily determined in courts and licensing board hearings by testimonies of expert witnesses. Attorneys on both sides often present conflicting expert testimonies about the standard of care. Hired by the boards or the plaintiffs' attorneys, many experts apply narrow analytic principles, limited ethical codes and rigid risk management principles to determine what actions fall below the standard of care. As a result, many legitimate clinical, ethical and legal behaviors, such as touch, gifts, bartering, extended length of session, and pro bono services, often fall below the standard of care according to these experts. Therapists who barter with clients who are poor, make home visits to those who are homebound or employ the behavioral intervention of flooding with an agoraphobic patient by leaving the office have being unjustly accused of operating below the standard of care (Lazarus, 1994; Williams, 1997, Zur, 2001, 2004, 2007a).
The danger is not only for therapists who are unjustly judged by the risk management yardstick, but in fact, for the entire profession. As therapists are being frightened by risk management experts, attorneys and insurance companies into avoiding touch, bartering, home visits, gifts, non-sexual dual relationships and other boundary crossings there is an increased chance that a new standard of care may develop. As more and more practitioners, especially young ones, practice risk management, there is increased risk that it will become the standard of care (Lazarus, 1994; Williams, 2003).
Compliance with the Standard of Care
Compliance with the standard of care means that therapists have acted in a prudent and reasonable manner and followed community and professional standards as have others of the same profession or discipline with comparable qualification in similar localities. Demonstrating compliance with the standard of care is done primarily via documentation in the clinical records.
The proof of compliance is almost exclusively in the clinical records.
Generally, good records go hand in hand with quality care. Records, which indicate compliance with the standard of care, should include for each client, couple or family, at the minimum:
- Diagnosis, assessment, mental status exam and/or details of the presenting problem. The diagnosis or presenting problem does not need to be based on the DSM or ICD texts. It can be a developmental, systems or existential type diagnosis.
- Relevant biographical-background information.
- Treatment planning, which includes treatment goals, type of interventions, scientific or theoretical rational for the intervention and, when appropriate, rationale for ruling out certain standard interventions. The records should include initial and updated treatment plans, documentation of progress or lack thereof and evaluation of the effectiveness of the interventions.
- Progress notes.
- When applied, records should include test results, collateral information, consultations, referrals, follow ups, crisis interventions, emergency sessions, special phone calls, authorization to treat and to release information, detailed informed consents, office policies, HIPAA Notices and authorizations, if applied, and termination notes.
- Extra documentation is often required in cases of emergencies, violence, abuse, mandated reporting, boundary crossing, dual relationships, abrupt termination, crisis intervention and in complex clinical, legal and ethical cases.
Psychotherapists must understand that in many situations the assessment of whether they operated within the standard of care is conducted without interviewing them personally but solely through sifting through the clinical records. In civil law suits and administrative hearings it is often the client's word against the clinical records, not the client's word against the therapist's word. For this reason keeping good records is extremely important. When therapists choose not to use standard interventions, they must articulate their clinical rationale for their treatment of choice. They should also demonstrate their awareness and consideration of the different treatment options.
The standard of care has been defined as the usual and customary professional standard practice in the community. There is no one textbook or set of rules that define the standard of care, and some suggest it is nothing more than a perception. One of the biggest problems with risk management practices is that they have often been confused with the standard of care. As a result, many prudent, reasonable and competent therapists, who closely adhere to professional and community standards but do not follow strict and distant analytic guidelines or fear based risk management practices, are being unjustly accused of practicing below the standard of care.
One way for psychotherapists to evaluate if their conduct is within the standard of care is to ask themselves questions such as: Does my conduct violate state or federal law, the licensing boards regulations or an ethical principle? Is there a court case imposing a duty on me which is relevant to this case? Therapists also need to ask themselves what a respected peer, who uses a similar theoretical orientation, working with a similar type of client in a comparable type of community, would say about their interventions? Finally, therapists must remember that in order to prove that they were operating within the standard of care, they must keep good clinical records.
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