By Ofer Zur, Ph.D.
The Standard of Care is one of the most important constructs in medicine, in general, and in mental health including psychotherapy, social work, marriage and family therapy and counseling. Most broadly, the standard of care has been defined or referred to 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.” It is important to notice that the standard of care is context based (i.e., big metropolitan city vs. rural community) and is not a standard of perfection. Some scholars describe the standard of care as a “c” level rather than “A+” or ideal standard. Operating within the standard of care allows for common, unavoidable or simple mistakes to take place in the course of treatment.
Reamer (2014) views the standard of care under the common law doctrine of standard of care that is rooted in Coombs v. Beede, (1996) where courts usually seek to determine what a typical, reasonable, and prudent, caring and careful practitioner with the same or similar education and training would have done under the same or similar conditions. Reamer continues by clarifying terms that are highly relevant to standard of care, such as “ordinary”, “reasonable” and “prudent” and explains that in some situations, establishing the standard of care is obvious and rather easy. He gives the following general examples for obvious aspects of the standard of care for different professions. “Ordinary, reasonable, and prudent surgeons do not operate on the wrong body part. Ordinary, reasonable, and prudent accountants do not knowingly violate Internal Revenue Service regulations when preparing a client’s tax return. Ordinary, reasonable, and prudent social workers do not forge clients’ signatures on releases or develop intimate relationships with them.” (p. 1).
While some aspects of the standard of care, such as respect, caring and/or medical oaths of ‘do not harm’ seems basic and mandatory, employing these values or attitudes is not always easy in a variety of settings. For example, multiple loyalties that are inherent in mental health practices in the military or in corrections facilities, do not always enable mental health practitioners to follow these high and desirable ideals in regard to clients’ welfare (Johnson, 2011; Johnson & Johnson, 2017; Zur, 2017).
The standard of care 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 (Barnett, 2017a; Barnett, et. al., 2007; Caudill, 2004; Doverspike, 1999; Woody, 1998). There is no one textbook or simple or single set of rules that define the standard of care, and some (i.e., Williams, 2003) go so far as to suggest that it is nothing more than a perception. Reid (1998) and others suggest 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 different aspects of the standards of care, clinical, ethical and legal, that must be integrated to form the final and complete standard of care.
As this paper emphasizes, following risk management principles, instructions or advice are clearly not necessarily essential aspects of the standard of care. In fact, in some situations, they may go contrary to the standard of care as they can be counter-effective clinical interventions and disruptive to the therapeutic alliance and may reduce the efficacy of psychotherapy or counseling (Lazarus 1994, 2013; Lazarus & Zur, 2002; Williams 1997; Zur, 2005, 2007, 20017)
Based on several court cases, Reamer (2014) emphasizes the importance of the three constructs of typical, reasonable, prudent (careful). As noted above, the standard of care is determined or evaluated by comparison with what an average practitioner having the same or similar education and training, would have done under the same or similar conditions.
One must keep in mind, as noted briefly above, that the standard of care is a minimum standard, and is not a standard of perfection. Simply making a careless mistake or making an error in judgment does not put a psychotherapist or a counselor below the standard of care. Unless there is a duty, such as a duty to report, the standard focuses on the process of decision-making rather than on the outcome. The decision-making process takes into consideration issues such as context (i.e., prison, down town New York City, military base, rural community, educational setting, etc.). Additionally, psychotherapists are not expected to be perfect, nor are clients guaranteed positive or desired results (Caudill, 2004). Simple mistakes do not put a counselor or psychotherapists below the standard of care. For a psychotherapist to successfully be sued by a plaintiff, a negative outcome such as suicide, harm to client or client’s loss of trust in the therapeutic or counseling process are not sufficient proof, by themselves, of sub-standard care unless there was a violation of the reporting or other laws or sub-standard clinical interventions. In courts, 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). Administrative law judges or licensing boards may sanction a psychotherapist if they find that the therapist operated below the standard of care. In many states there is no need to prove damage to client in order for he licensing boards to sanction the therapist. In these states, sub-standard clinical behavior is sufficient to sanction the therapist. While it may sound odd, the standard of care in courts and licensing board hearings is determined by a judge, administrative law judge or jury, based partly or significantly on the testimonies of expert witnesses. Attorneys on both sides often present conflicting expert testimonies about their interpretation or understanding of the standard of care. Adding to the complexity, in recent decades one of the biggest concerns is that risk management practices, spurred on by the insurance companies, have often been confused with the standard of care (Barnett, 2017a; Lazarus & Zur, 2002, Younggren & Gottlieb, 2017; Williams, 1997; 2003; Zur, 2005, 2007, 2017).
The fact that there are dozens, and some say hundreds of different psychotherapeutic approaches and orientations (Lambert, 1991), and that there are many different types of communities, settings and cultures, makes the concept of the standard of care extremely complex, varied, elusive and controversial. Applying the standard of care in a diversity of settings is a challenging task. Zur (2017) dedicated an entire book to identifying how the standard of care (or rules of conduct) differ among settings. There is ample literature to support this assertion that the application of standard of care is context based. For example, the standard of care is significantly different in military settings (Hines, e. al 1998; Johnson & Johnson, 2017; Johnson, Grasso & Maslowski, 2010; Stone 2008), police settings (,Burgard, E.,L.. (2013). McCutchen, 2017), rural settings (Barnet (2017a; Burgard, 2013, Zur, 2007)), faith communities (Justice & Garland, 2010; Sanders (2017; Sanders, Swenson & Schneller, 2011).), sports psychology (Aoyagi & Portenga,2010; Baltzell,, Schinke, & Watson; 2010; Bucky & Stolberg, 2017), recovery communities (Coleman, 2005; Kaplan, 2005 Silberstei & Boone, 2017), educational settings (Koocher &Keith Spiege, 2017; Austin, et al, 2017; Corey, et. al. 2017).
An additional area where the standard of care has great impact and importance is in the forensic arena including correctional facilities (Greenberg & Shuman,1977; Ward & Ward, 2017). The significant variation in the interpretation of the standard of care in forensic settings can have a substantial effect on people/patients’ lives and that of their families or communities. When the different interpretations of the standard of care are applied to issues of sanity, capacity to stand trial, lie detector validity, or confession they can even have a life or death influence on courts’ determination of guilt or innocence.
The variability of the interpretation in rural and other settings, as noted above, can determine whether or not a professional psychotherapist, counselor, marriage and family therapist or social worker can keep their license or continue to practice.
Hampton, (2015), summarized the complexities of the standard of care and malpractice in psychotherapy this way:
The level of care required of psychotherapists varies according to whether a particular jurisdiction follows local, national, or specialist standards of conduct. It also may depend on the burden of proof that a court allocates to the parties and on the weight that it assigns to respectable minorities. These factors are especially critical in assessing whether an unconventional therapy falls within the limits of acceptable practice. When viewed in its entirety, this jurisdictional variation reveals an underlying chaos in the law governing the conduct of psychotherapists. Moreover, the standard of care as it is currently applied is not a reliable guardian of all interests. It should provide therapists with clearer guidelines for patient care. It should also offer assurance to practitioners of new or unconventional therapies that the law will not reject their methods outright. Finally, it should be cognizant of not only patients’ rights but also the crucial interplay between innovation and potentially more effective mental health care.
Besides the agreement never to harm or exploit clients, and to treat them with respect, there is little accord 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 from that of an existentialist’s treatment of the same condition in rural Idaho or the local counselor’s treatment on an Indian reservation in Arizona. Similarly, a military psychologist or prison social worker are likely to have different sets of loyalties which effect their interventions, disclosures, and other clinical variables. This is why the definition of standard of care is context based. Along these lines the controversial issue of multiple relationships manifests itself or is applied differently in different settings.
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 always 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 of care (Lazarus & Zur, 2002; Williams, 1997, 2003). 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.
As noted above, this paper attempts to shed light on the multifaceted nature of the standard of care in psychotherapy and counseling and to illustrate how it is not easily defined in different contexts and diverse situation and areas. It defines the standard of care, outlines its most important elements and explains what the standard is not. Additionally, as has been emphasized above 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 eight elements from which the standard of care is derived. Several of these elements, have also been described, among others by Barnet (2017a), Caudill (2004), Doverspike (1999), Reid (1998) and Williams (1997, 2003), Younggren & Gottlieb (2017), and Zur (2007, 2017), among others.
Each state has many statutes, such as Child Abuse, Elder Abuse, Domestic Violence Reporting and other laws. Many states outline the duty to report when a client is danger to self or others. 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. In other words, state laws are clearly one of the basic elements of the standard of care. It is important to note that even states’ laws are often open to interpretations and therefore sow uncertainty in regard to the mental health standard of care.
- Licensing Boards’ Regulations:
In most states, there are extensive regulations governing many aspects of mental health practices. These often include the rules about mandated continuing education for licensed psychotherapists; who may or may not take the licensing exam; licensing fees; regulations in regard to renewal of license to practice; regulation of supervision; etc. In recent years regulations of licensing boards have established rules regarding telemental health. Due to the nature of technology and its’ rapid pace of change and evolution, some licensing boards are trying to keep up by changing the regulations.
HIPAA regulations are gradually becoming part of the standard of care with national regulations for mental health practices. Some of the standards established by Health and Human Services (HHS) relate to the ‘Cloud’ and other means of record keeping; clients’ access to records; security of the variety of communications with clients, such as video-conferencing, apps, texts, phones, etc. HIPAA regulations and the requirement for Business Association Agreements (BAA) also established standards for how mental health professionals interact with the person or agency that conducts their insurance billing, and the companies which transmit digital information of video conferencing, texting, e-mails, 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.
- Ethical Codes of Professional Associations:
The codes of ethics of professional associations are an important but also controversial part of the standard of care. American Psychological Association (APA, 2016) ethical principles apply to APA members, but in most situations they also apply to non-member licensed psychologists. Similarly, social workers are often held to the standard set by the National Association of Social Workers’ (NASW, 2017) 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, 2014) or the American Association of Marriage and Family Therapists (AAMFT, 2015). Many states have officially adopted ACA, AAMFT, APA or NASW codes of ethics as the licensing boards’ standard for their profession under their jurisdiction. Unlike most statutes, case law and regulations, the codes of ethics are often unclear about what kinds of behavior are mandated or prohibited. For example, 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. The situation is similar for counselors, marriage and family therapists and social workers. In other words, the breadth and vagueness of the codes has enabled many attorneys, boards and their 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, several codes of ethics state that their code of ethics is not intended to be a basis of civil liability. In other words the codes of ethics are not supposed to be simply equated with laws, regulations, statues or the standard of care, which is the basis for civil liability and licensing disciplines. The code further states, ” The Ethics Code is not intended to be a basis of civil liability. 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.” (APA code of ethics, 2016, Introduction and Applicability). Several codes make it clear that when they used the term “reasonable.” it does not mean a global or unified reasonable behavior but it has meaning, as this paper asserts, only within the context of the mental health service. 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 standards 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.
- The Respected Minority Principle:
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. An additional complexity consensus among professionals part of the standard is what has been called “respected minority.” This principle may apply if the scientific or research support of the technique is not well established yet (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 using psychotropic substances.Another recent example is, Eye movement desensitization and reprocessing, also known as EMDR (Shapiro, 2002). This is a form of psychotherapy developed by Francine Shapiro towards the end of the 20th century that emphasizes the role of distressing memories in some mental health disorders, particularly posttraumatic stress disorder (PTSD). When Dr. Shapiro introduced her methodology there was very little research and definitely no long-term research yet. By the beginning of the 21st century EMDR has become one of the most effective and well research methodology of treating PTSD.
Another example of the incorporation of new approach or technique has been energy psychology (Feinstein, 2012). In 1999 the American Psychological Association (APA) notified its 600 (at the time) Continuing Education (CE) sponsors that they may not offer APA CE credit to psychologists for courses on Thought Field Therapy. However, after a series of rejection, finally in 2010 APA was convinced of the legitimacy of this approach based on research findings of 51 reports presented to APA by the Energy Psychology scholars. 18 presented findings from randomized controlled trials (RCTs).
In sum, 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, including recently developed “respected minorities” with limited amount of research should be upheld.
- Consensus Among Professionals:
In a field that is comprised of hundreds of therapeutic orientations (Grohol, 2016; Lambert, 1991), consensus is hard to come by. Professional associations published several guidelines on different topics. For example American Psychological Association has published several specific guidelines on a variety of topics such as “Clinical Practice Guideline for the Treatment of Posttraumatic Stress Disorder (PTSD) in Adults,” Child custody evaluations in family law proceedings,” “Evaluation of dementia and age-related cognitive change,” “Practice of telepsychology,” and many other guidelines (see list at http://www.apa.org/about/policy/approved-guidelines.aspx). It is important to remember that these documents are not binding but only provide general guidelines that are neither always applicable not always in accord with states’ laws or licensing boards regulations.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 (Lampropoulos, 2000; Levant, 2004, Knapp & VandeCreek, 2012; Koocher, 2004, 2017).). 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, easily quantified or available for double blind or long-term experiments. Some of therapeutic orientations that objected to the concept and restrictions imposed by the ‘double blind’ approach research include Humanistic, Existential, Psychoanalytic, Psychodynamic, Family and Systems psychology. 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 newsletters, guidelines 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 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 (Grolol 2016; 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 the clients. For example there is no one standard, or method for the treatment of anxiety. Psychoanalysis, cognitive-behavioral, existential, biologically based psychiatry, Gestalt and pastoral counseling all define, explain and treat anxiety in very different terms.
- 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. For example, gifts, touch and attending ceremonies and rituals are normal and expected in Hispanic, Jewish or American Indian communities (Lazarus & Zur, 2002; Zur, 2001). Barnet (2017a) stated well that “One client’s boundary crossing may be another client’s boundary violation.” Bartering and social dual relationships between therapists and clients are an unavoidable part of rural living (Zur, 2004). As noted above multidimensional dual relationships between therapists and clients are inherent, and, in fact, mandated by law, in the military (Johnson, 2011; Johnson & Johnson, 2017; Zur & Gonzalez, 2002). However, dual relationships are not as common in highly populated metropolitan areas and large cities as they are in rural areas (Zur, 2017). 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, as noted above, is based on the average practitioner and on reasonable actions. Caudill (2004) calls it a “C student standard.” Simply making a careless mistake or making a simple 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, 2007, 1017; Williams, 1997). It is very important to understand the differences between the standard of care and risk management principles and practice (Barnet, 2017a; Barnet, et al., 2007; Knapp, 2013; Knapp & Van de Creek, 2012; Younggren & Gottlieb, 2004).). While the standard is based on legal-professional-communal principles, risk management guidelines are often geared almost exclusively to reduce the risk of sanction of licensing boards or risk of malpractice for therapists so insurance companies will have their financial liability reduced. On the other hand, conducting a proper clinical and ethical risk management analysis, can, in fact, be a useful way to weigh which clinical intervention is most likely to be effective and then compare the level of risk each intervention carries.
- It does not follow psychoanalytic or any other particular theoretical orientation. Contrary to what some practitioners or experts believe, the standard is not necessarily, based on psychiatric, biological, analytic or any other particular theoretical orientation. The standard is theoretically neutral. Attorneys and so-called experts have often presented the 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, 2003; Younggren & Gottlieb (2017; Zur, 2005, 2007, 2017).
- The standard is not determined by outcome. When therapists use an approach, methodology, or certain orientation that fall within the standard of care, they are not negligent, even if the outcome of treatment is neutral or negative. Unfortunate, unexpected or negative outcomes, such as increased depression, resurfacing of trauma, or suicide are not necessarily the result of negligence or substandard care. The emphasis of the standard is on the psychotherapeutic process and on 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 an evolving standard. Changes can also be through the publication of new research findings, new practice guidelines or new theoretical breakthroughs. For example, since the technological revolution and the proliferation of telemental health, the standard of care has changed and evolved in order to be relevant to modern times. The proliferation of risk management practices, regrettably, has influenced 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 (Williams, 1997, 2003; Younggren & Gottlieb, 2004, 2017; Zur, 2002, 2017). 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. As was noted earlier in this paper, attorneys on both sides in court 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, 2003; Zur, 2001, 2004, 2007, 2017).
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 physical 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; Zur, 2017).
Compliance with the Standard of Care
Compliance with the standard of care means that therapists have acted in a prudent and reasonable manner and have followed community and professional standards as have other practitioners 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 rationale 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 note are extremely important in determining whether a psychotherapist acted within the standard of care not. The progress notes detail how the treatment plan is being implemented. It describes the evolution of treatment as well as setbacks in treatment. Progress notes may describe shifts in interventions and shifts in theoretical orientations. Interventions that include physical touch or bartering may need more detail in the progress notes. Home visits, bartering or having a session outside the office should be noted in the progress notes and often the therapist may or should explain or justify the reason for such unorthodox interventions. The justification for such intervention must be articulated in the 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. Extra notation should be included also in unusual interventions that include home visits, wilderness program, animal assistant therapy including equine therapy. Such non mainstream interventions needs to be described and ‘justified.’ The results of these interventions should be articulated whether they were successful or not. Extra documentation is also required is often necessary in military and prison settings and other unique settings. For example in military and correctional facilities the loyalties of the psychotherapists are not clear or exclusive to the person-client who they are treating. In these settings the psychotherapist also has loyalties to the commander of the soldier whom they are treating or to the prison warden rather than to the prisoner-client.
- Dual relationships also need to be articulated in the process notes. The notes needs to identify settings and situations where dual or multiple relationships are unavoidable (i.e., military, correctional) or common occurrence, such as those in rural, small town, recovery communities and, at times, universities and colleges (Zur, 2017)
- Telemental Health has introduced a new way and means of delivering psychotherapy. Accordingly the standard of care is evolving alongside telemental health. The use of cell phones, video-conferencing, texts, e-mails, etc. are becoming routine and common ways of communication for psychotherapy and counseling. Applying HIPAA regulations to constantly changing technologies should be described in the therapy notes.
Psychotherapists must understand that in some 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 set of rules or textbook that defines 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 are often 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 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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