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By: Jeffrey E. Barnett, Psy.D., ABPP & Marla M. Sanzone, Ph.D.
An earlier version of this article was published in The Independent Practitioner. Ref: Barnett, J.E., & Sanzone, M.M. Termination: Ethical and legal issues. The Independent Practitioner, 17, 149-151. Reprinted with permission from APA Division 42 and Dr. Barnett.
Editor’s Note:
Dr. Barnett is a licensed psychologist with a private practice in Annapolis, Maryland, a professor in the Department of Psychology at Loyola University Maryland.
Dr. Sanzone is a licensed psychologist in private practice in Annapolis, Maryland, and a clinical assistant professor in the department of psychiatry at the University of Maryland School of Medicine.
All actions taken by psychologists when functioning in their professional roles should be guided by certain underlying tenets of ethical behavior. These include avoiding exploitation or harm, protecting the welfare and best interests of those we serve, and respecting patients’ rights. Fundamental to the process of psychotherapy is the fact that individuals who are in need seek the services of psychologists with the specific goal of receiving assistance. Because of the great imbalance of power in the therapy relationship, patients enter it in a “one down” position (Haley, 1986).
The termination phase is an important aspect of treatment that must be appropriately addressed and handled if the above-mentioned objectives are to be achieved. While perhaps overlooked by some, the manner in which the termination phase is conducted may have far-reaching consequences for patient and psycotherapist alike. With recent emphasis on brief and symptom focused therapies, clinicians may be somewhat more prone to losing sight of the importance of the process of psychotherapy and the therapeutic relationship. Several authors have stressed the clinical importance (e.g., Basch, 1980; Macneil, Hasty, Conus, & Beck, 2010; Schmukler, 1991) and ethical aspects (e.g., Davis & Younggren, 2009; Vasquez, Bingham, & Barnett, 2008; Younggren & Gottlieb, (2008)) of this vital phase of the treatment process.
The importance of an effective termination phase to achieving a successful treatment outcome is so great that it should be addressed as the professional relationship is being initiated. The American Psychological Association’s “Ethical Principles of Psychologists and Code of Conduct” (2010) recommends that as the psychotherapy relationship is being initiated, psychologists take reasonable steps to ensure that patients have necessary and sufficient information to avoid apparent misunderstandings about the treatment to be provided. It is recommended that patients be informed of the likely course of treatment. They have the right to give informed consent to the treatment they are to receive (Standards 3.10 and 10.01). This informed consent should address all significant aspects of treatment to include how termination will be handled.
In general each psychologist has the responsibility to ensure that patient needs are adequately addressed if for some reason treatment is discontinued. The fact that a patient’s treatment has been terminated does not necessarily free the psychologist from responsibility for that patient’s welfare if ongoing treatment needs exist. While this guideline reinforces the need to meet each patient’s best interests and act with regard for their needs, it does not mean that psychologists must continue providing treatment indefinitely if contraindicated by their professional judgment.
Relevant issues to be addressed in informed consent regarding termination include the fact that treatment will be terminated “when it is reasonably clear that the client/patient no longer needs the service, is not likely to benefit, or is being harmed by continued service” (Standard 10.01 a, p. 13). This standard addresses circumstances when we must terminate treatment services; situations when it clearly is in the client’s/patient’s best interests to do so. Further, the standard states that psychologists “may terminate therapy when threatened or otherwise endangered by the client/patient or another person with whom the client/patient has a relationship” (Standard 10.01 b, p. 13). In such situations the psychologist may abruptly terminate the professional relationship and does not need to go through a termination phase of treatment, assess the client’s/patient’s ongoing treatment needs, or make referrals for ongoing treatment. In these situations the clinician’s safety is the paramount consideration. This is a new standard that was first included in the 2002 version of the APA Ethics Code. As it is said in Standard 10.01 c “Except where precluded by the actions of clients/patients or third-party payors, prior to termination psychologists provide pretermination counseling and suggest alternative service providers as appropriate” (p. 13). Thus, clear guidance is provided as to when it is appropriate, and at times necessary, to terminate the treatment relationship. In fact, some courts have ruled that non-cooperation in treatment, threats against a therapist, and other conditions, can justify therapist-initiated termination (See Eyrich v. Dam, 1989; Herold v. State, 1982).
Unless it is not possible because a patient precipitously withdraws from treatment, it is recommended that psychologists provide for a termination phase of treatment. This guideline further reinforces the goal of addressing each patient’s treatment needs. Even if treatment is being discontinued because its continuation is not in the patient’s best interest, one must assess any further treatment needs and take reasonable steps to ensure that they are met. The importance of arranging for continued care by another health care provider when treatment must be terminated and treatment needs remain is highlighted in the court’s ruling in Collins v. Meeker (1967) as cited in Stromberg, et al, (1988):
It is the settled rule that one who engages a physician …to treat his case engages him to attend throughout the illness or until his services are dispensed with. In other words, once initiated, the relationship of physician and patient continues until it is ended by the consent of the parties, revoked by the dismissal of the physician, and until his services are no longer needed. A physician has a right to withdraw from the case, but if he discontinues his services before the need for them is at an end, he is bound first to give due notice to the patient and afford the latter ample opportunity to secure other medical attendance of his own choice. If a physician abandons a case without giving his patient such notice and opportunity to procure the services of another physician, his conduct may subject him to the consequences and liability resulting from abandonment of the case. (p. 493)
Psychologists clearly cannot be expected to force patients to follow through with recommendations to continue treatment. It is, important, however, that patients are made aware of any treatment needs the psychologist identifies. If a patient terminates psychotherapy and treatment needs remain, the psychologist should not tacitly condone the discontinuation of treatment.
A relevant example is the case of a depressed patient who has reported suicidal ideation at times in the past and who has a history of impulsive acting out when under stress. If such a patient, who has the clear need for continued treatment, terminates treatment, the psychologist’s responsibility does not end as the patient walks out the door. In addition to ongoing clinical issues to be addressed, a significant liability issue exists if the patient is harmed such as by committing suicide or injuring another. An obvious recommendation is to inform patients of the need for continued treatment if the psychologist knows of this or should reasonably be expected to know of this. Informing patients in writing of the recommendation for continued treatment is clearly warranted. In addition, providing the patient with appropriate referrals (again in writing) for continued treatment is recommended. Appropriateness may be based on considerations such as the referral source’s training and experience, cost, location, and accessibility. A follow-up letter or telephone call is recommended to reinforce the need for ongoing treatment as well as to offer assistance in obtaining it if needed. These steps would all help psychologists to ensure that patients’ needs are met and to meet the standards given in the ethics code.
An alternative possibility to patients discontinuing treatment when it is still warranted is when a patient desires continued treatment but is unable to continue payment. Standard 6.04, Fees and Financial Arrangements, recommends that such a possibility be addressed at the initiation of the therapy relationship if possible or “…as early as is feasible” (p. 9). It is again imperative that treatment not be withheld solely because of an individual’s inability to pay for continued care. Patients in crisis must be provided with ongoing treatment regardless of financial resources. An appropriate transfer or referral to other treatment providers may be made when deemed clinically appropriate. As has been mentioned, the referral must be appropriate both for services needed and costs involved. Gutheil and Applebaum (1982) cite relevant case law stating that courts “are likely to look less favorably upon therapists who have stopped seeing patients for failure to pay their bills than those who have been terminated for any other cause” (p.155).
An additional termination dilemma to guard against as Stromberg et al (1988) point out is that “claims of patient abandonment sometimes arise when therapists fail to provide adequate coverage during nights, weekends, or other absences” (p. 495). Since patients at times experience crises and emergencies between sessions, it is important to ensure accessibility to them and to make appropriate arrangements for coverage by another qualified health care provider during periods of absence or inaccessibility. Additionally, Standard 3.12, Interruption of Services states:
Unless otherwise covered by contract, psychologists make reasonable efforts to plan for facilitating services in the event that psychological services are interrupted by factors such as the psychologist’s illness, death, unavailability, relocation, or retirement or by the client’s/patient’s relocation or financial limitations (p. 6).
Thus, regardless of the reason for the interruption in services and whether it is planned or not, the psychologist must take reasonable steps to ensure that the patient’s treatment needs are met and that a continuity of care is provided. Not anticipating such circumstances and not making appropriate arrangements for continued treatment do not fall within the standard of care set in the ethics code.
Also addressed in the ethics code are the need to terminate treatment when the patient is not benefiting from it and when it is potentially harmful to the patient. A final termination dilemma impacting on patient care involves the role of managed care.
Often it is neither the psychologist nor the patient who choose to discontinue treatment. In this age of managed care, patients may be surprised to learn that authorization for ongoing treatment is denied when benefits have been exhausted. Psychologists and patients should educate themselves on the likely limits to treatment. Various insurers allow only a certain number of treatment sessions or days each year. The patient’s needs for continued care and possible alternative financial or treatment arrangements should be addressed as discussed earlier if treatment needs exceed insurance coverage.
Of even greater concern is the situation that arises when psychologist and patient are working together within anticipated limits of coverage and authorization for continued treatment is denied by utilization review personnel, typically without apparent clinical justification or understandable rationale. Several obligations exist for the psychologist in such situations. Again, patient treatment needs should be paramount. Regardless of utilization review decisions, treatment must be provided to those in crisis.
A significant precedent exists for not terminating treatment solely because authorization for continued insurance coverage is denied. Frequently, managed care organizations and utilization review personnel make fiscally-motivated decisions which impact upon patient care. However, psychologists must remain cognizant of each patient’s treatment needs.
Two landmark legal decisions illustrate this need. In the first case, Wickline v. State of California (1986), the court held that:
Patient who requires treatment and is harmed when care which should have been provided is not provided should recover for injuries suffered from all those responsible for deprivation of care, including, when appropriate, health care payers.
Third party payors of health care services can be held legally accountable when medically inappropriate decisions result from defects in the design or implementation of cost containment mechanisms, such as when appeals made on behalf of a patient for medical or hospital care are arbitrarily ignored or unreasonably disregarded or overridden.
Physician who complies without protest with limitations on treatment imposed by a third-party payor when physician’s medical judgment dictates otherwise cannot avoid his ultimate responsibility for his patient’s care. (p. 810)
This ruling yields several important points with far-reaching consequences. First, when managed care organizations and other insurers deny care for a patient and the health care provider appeals this denial, the payer is to be held liable if appeals are summarily denied without being given due consideration for the legitimate need for ongoing care. Secondly, and more importantly for the psychologist, any health care provider who acquiesces with the payer’s denial of authorization when continued care is clinically indicated becomes liable for damages as well. While both third party payors and health care providers are to be held accountable for their actions under this ruling, the ultimate issue for psychologists is the need to provide patients with clinically indicated care regardless of utilization review decisions. Fiscally motivated utilization review decisions should never supersede the clinician’s appraisal of patient treatment needs. A third party payer’s decision not to authorize payment for treatment services is a separate issue from the psychologist’s obligation to provide treatment to patients in need and not to abandon them. As some managed care companies are quick to point out, their denials are for reimbursement of services provided, not for the provision of care itself.
In the second case, Wilson v. Blue Cross of Southern California (1990), a patient was denied continued mental health care by utilization review personnel. The physician involved discharged the patient without appealing the decision and within three weeks the patient committed suicide. In this case the court held that the defendants could be held liable even though the physician did not appeal if their conduct was negligent and it was a substantial factor in causing the harm. Thus, while third party payers must ensure that their appeals procedures are adequate and appropriately disclosed, health care providers also maintain responsibility for treatment decisions made and may not defer their clinical judgment to administrative personnel. While these cases create a precedent for shared liability, it is the health care provider who retains ultimate responsibility for patient health care decisions. Regardless of utilization review decisions, patients in need must be provided with continued care, either by the health care provider personally or by making alternative arrangements through an appropriate referral.
Mental health professionals maintain the ultimate responsibility for their patients’ wellbeing. We should not defer responsibility for treatment decisions to others such as utilization review personnel. As has been stated, while we can not guarantee patients’ actions or level of cooperation with our recommendations, we must make treatment decisions with each patient’s best interests in mind. When considering treatment decisions and recommendations our responsibilities include planning for and implementing an effective termination process. Mental health professionals should make all reasonable efforts to avoid abandoning their patients.
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