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Decoding The Ethics Code, Ch. 8 & 9

Decoding The Ethics Code

CHAPTER 48

Standards on

Advertising and

Other Public Statements

5. Advertising and Other Public Statements

5.01 Avoidance of False or Deceptive Statements

(a) Public statements include but are not limited to paid or unpaid advertising, product endorsements,

grant applications, licensing applications, other credentialing applications, brochures,

printed matter, directory listings, personal resumes or curricula vitae, or comments for use in

media such as print or electronic transmission, statements in legal proceedings, lectures and

public oral presentations, and published materials. Psychologists do not knowingly make public

statements that are false, deceptive, or fraudulent concerning their research, practice, or other

work activities or those of persons or organizations with which they are affiliated.

Psychologists aspire to promote accuracy, honesty, and truthfulness in the science,

teaching, and practice of psychology and do not engage in subterfuge or

intentional misrepresentation of fact (Principle C: Integrity). Standard 5.01a of the

APA Ethics Code (APA, 2010c) prohibits false, deceptive, or fraudulent public statements

regarding work activities or the activities of persons or organizations with

which psychologists are affiliated.

The terms avoidance and knowingly exclude as violations statements that psychologists

would reasonably be expected to believe are true but that they may later

learn are false.

􀀵 A psychologist in a group practice distributed brochures with a listing of the group

members’ credentials, only to discover that one member had submitted false credentials.

She ceased distribution and ordered a corrected brochure.

FOR THE USE OF UNIVERSITY OF PHOENIX STUDENTS AND FACULTY ONLY.

NOT FOR DISTRIBUTION, SALE, OR REPRINTING.

ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED.

Chapter 8 Standards on Advertising and Other Public Statements——163

Definition of Public Statements

This standard begins with a definition of public statements. This definition

applies to the use of the term public statement or statement in all standards under

Section 5, Advertising and Other Public Statements. The definition refers only to

statements made in the public domain. It does not apply to statements made during

private professional or personal conversations with clients/patients, organizational

clients, attorneys, students, colleagues, or others with whom psychologists have a

professional or personal relationship.

The following are the types of statements included in this definition along

with examples of false or deceptive statements that would be in violation of this

standard:

􀀴 Paid or unpaid advertising or product endorsements. A toy company paid a

school psychologist for her endorsement stating the proven effectiveness of a taperecorded

language lesson for infants that would improve reading comprehension in

elementary school. There was no empirical evidence supporting this claim.

􀀴 Licensing, grant applications, and other credentialing applications. In the

Preliminary Studies section of a federal grant application, an experimental psychologist

listed as completed a pilot study that was still in the data collection phase.

􀀴 Directory listings, personal resumes, or curricula vitae. A psychologist with a

Ph.D. in social psychology and no specialized clinical or other practice-oriented postdoctoral

training listed himself in the city directory under health care providers.

􀀴 Business cards. A clinical neuropsychologist set up a practice in which she prescribed

psychotropic medications through her license as a nurse practitioner. Her business

cards only included her degree and title as a neuropsychologist, but listed both her

psychology and nursing state licensure numbers.

􀀴 Comments for use in print, electronic, or other media. In a television interview,

a psychology professor who had an academic freedom suit against his university

claimed that the university refused to allow any faculty to teach courses that

include discussion of human sexuality when in fact the university catalog listed

several such courses.

􀀴 Statements in legal proceedings, lectures, public oral presentations, and

published materials. An industrial–organizational psychologist was hired as an

􀀵 A research psychologist gave a public lecture, a series of media interviews, and congressional

testimony during which he publicly concluded that empirical evidence

supported a particular policy initiative. Six months later, the release of results from a

large federally funded study challenged those conclusions.

􀀵 A clinical psychologist, whose professional website included links to online listings of

national and local mental health informational services, vetted the accuracy of the

information on each listed website before the initial listing, and periodically thereafter.

FOR THE USE OF UNIVERSITY OF PHOENIX STUDENTS AND FACULTY ONLY.

NOT FOR DISTRIBUTION, SALE, OR REPRINTING.

ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED.

164——PART II ENFORCEABLE STANDARDS

(b) Psychologists do not make false, deceptive, or fraudulent statements concerning (1) their training,

experience, or competence; (2) their academic degrees; (3) their credentials; (4) their institutional

or association affiliations; (5) their services; (6) the scientific or clinical basis for, or results

or degree of success of, their services; (7) their fees; or (8) their publications or research findings.

In contrast to Standard 5.01a, 5.01b does not include the term knowingly

because it is assumed that psychologists would have sufficient information about

the facts listed to avoid false, deceptive, or fraudulent statements.

The following are examples of violations of the eight types of statements listed

under Standard 5.01b.

expert witness by an attorney for a large retailing firm accused of discriminatory hiring

practices. She testified that data on the firm’s hiring of women and ethnic minority

applicants were not significantly different from national data on employment practices

in similar companies, despite the fact that she had not examined any of the firm’s

actual employment data. See the Hot Topic at the end of this chapter on “Avoiding

False and Deceptive Statements in Scientific and Clinical Expert Testimony.”

HMO

􀀴 Training, experience, or competence. On a professional liability insurance application,

a psychologist stated that she had obtained substance abuse certification from

the APA College of Professional Psychology when in fact she only attended a workshop

on substance abuse treatment at an APA meeting.

􀀴 Degree. A health psychologist applying to the ABPP for diplomat status in behavioral

psychology falsely claimed he had received his doctorate in clinical psychology.

􀀴 Credentials. On his business cards, a clinical psychologist with formal postdoctoral

training in neuropsychology listed herself as a “licensed clinical neuropsychologist”

when her state only issues licenses in psychology (see Meharg & Bush, 2010).

􀀴 Institutional or association affiliations. A psychologist in independent practice

who rented office space from a university created a letterhead on his stationery that

suggested he was affiliated with the institution.

􀀴 Services. A psychology group practice website listed family therapy as one of the

services offered, even though the only psychologist offering this service had left the

group more than a year ago.

􀀴 Scientific or clinical basis for, or results or degree of success of, their services.

A behavioral psychologist running a weight loss program for obese adolescents

stated in the program brochure that “99% of clients maintain their weight

loss after they leave the program.” The statement did not include the fact that for

most of these clients, the maintenance of weight loss lasted for less than 3 weeks.

􀀴 Brochures and printed matter. A consulting psychologist distributed brochures to

personnel departments of banks in major cities stating that he had developed a foolproof

psychological technique for preemployment integrity screening to weed out

applicants who were prone to dishonesty. The claim was based on undocumented

consultations conducted by the psychologist over several years.

􀀴 Fees. A child clinical psychologist presented a talk on childhood disorders at a parents’

association meeting. After the talk, she handed out printed information about

FOR THE USE OF UNIVERSITY OF PHOENIX STUDENTS AND FACULTY ONLY.

NOT FOR DISTRIBUTION, SALE, OR REPRINTING.

ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED.

Chapter 8 Standards on Advertising and Other Public Statements——165

Comparative statements regarding the desirability of one type of service over

another are not prohibited if there is substantial evidence to support the claim

(Shead & Dobson, 2004; Standard 2.04, Bases for Scientific and Professional

Judgments).

Deceptive Web-Based Services

Potentially deceptive web-based advertisements and claims regarding Internetbased

mental health services risk violating Standard 5.01b. In their survey of

e-therapy websites, Heinlen et al. (2003) found substantial gaps in ethical compliance,

including (a) failure to inform consumers that the psychologist’s license to

provide mental health services online might be restricted by state law, (b) unsupported

statements disparaging face-to-face therapies in comparison to online

services, (c) descriptions of psycho-educational web-based services that could lead

consumers to believe that they would receive individualized counseling, assessment,

or therapeutic services, and (d) failure to clarify the boundaries of the psychologist’s

competence to provide services across a broad spectrum of

psychological disorders.

her practice that stated that she offered all clients a sliding scale of fees beginning at

$40 a session. The handout did not mention that the $40 rate was only for clients

specifically referred by the HMO with which the psychologist had a contract.

􀀴 Publications or research findings. A school psychologist on the faculty of a large

university received a grant from an educational services company. The purpose of the

funded project was to compare student academic achievement in city-administered

public schools with those run by the educational services company. Data from schools

in the eight cities studied indicated significant differences in favor of the city-run

schools in two cities, significant differences in favor of the company-run schools in two

cities, and no significant differences in the other four school districts. The psychologist

published only data from the two cities in which a positive effect of companycontracted

schools was found and suggested in the conclusion of the article that these

results could be generalized to other cities (see also Standard 3.06, Conflict of Interest).

􀀴 A psychologist developed a web-based service for parents of children with behavioral

problems at “www.parent-therapy-online.com.” Parents could pay $25 to e-mail a

specific question about how to help their child that was answered within 24 hours by

one of eight psychologists identified on the website as “child experts who will provide

therapeutic advice personalized to each request.” In actuality, the “personal” e-mail

responses provided prewritten general statements about behavioral child management

techniques. In small print at the bottom of the web page appeared the following

statement: “The information provided on this website is for educational purposes and

does not constitute treatment.”

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NOT FOR DISTRIBUTION, SALE, OR REPRINTING.

ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED.

166——PART II ENFORCEABLE STANDARDS

(1) were earned from a regionally accredited educational institution or (2) were the basis for

psychology licensure by the state in which they practice.

Standard 5.01c applies only to psychologists who are claiming degrees or credentials

as evidence of their competence to provide health services. Unlike

Standard 5.01b, this standard is not directed at whether a psychologist actually

obtained the degree but whether the degree can be claimed as a basis for offering

therapy or diagnostic or other types of health services.

Psychologists may refer to only two types of degrees as evidence of education and

training in the field of psychology that qualifies them as a health service provider.

The first type is a degree in psychology (e.g., Ph.D., Ed.D., or Psy.D.) earned from a

regionally accredited educational institution (e.g., the Commission on Higher

Education of the Middle States Association of Colleges and Schools). The second

type of degree is from a program in a nonaccredited institution, whose curriculum

and training experiences have been approved by the state in which the psychologist

practices as qualifying him or her for eligibility for licensure in psychology.

A psychologist who claims a degree as a credential for health services that does

not meet the above criteria would be in violation of this standard:

Need to Know: Websites and

Potential Violation of Other Standards

Website advertising can place psychologists in violation of other Ethics Code standards

(Koocher & Keith-Spiegel, 2008; Nagy, 2011; Nicholson, 2011). Below are two examples of

such violations:

A neuropsychologist posted quasi-psychological screening tools with questionable

validity and items drawn from standardized tests to “help” potential clients

evaluate whether they needed his services (Standard 9.02a & b, Use of Assessments

and Standard 9.11, Maintaining Test Security).

A school psychologist’s professional website included information sheets on

different disorders and treatments related to learning disabilities without

appropriate citation (Standard 8.11, Plagiarism). The violation was exacerbated

when her website was listed by search engines as providing expert information for

consumers on childhood learning disorders.

􀀴 An individual licensed as a social worker in his state acquired a Ph.D. in counseling

psychology from a nonaccredited university. He was unable to obtain licensure in

psychology because the state in which he practices did not recognize his doctoral

training as a basis for licensure in psychology. His business cards and professional

letterhead included a Ph.D. after his name, the title Counseling Psychologist, and his

FOR THE USE OF UNIVERSITY OF PHOENIX STUDENTS AND FACULTY ONLY.

NOT FOR DISTRIBUTION, SALE, OR REPRINTING.

ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED.

Chapter 8 Standards on Advertising and Other Public Statements——167

(b) Psychologists do not compensate employees of press, radio, television, or other communication

media in return for publicity in a news item. (See also Standard 1.01, Misuse of Psychologists’

Work.)

Standard 5.02b underscores psychologists’ obligations to avoid actions that

might encourage others to make false or fraudulent statements about their work.

5.02 Statements by Others

(a) Psychologists who engage others to create or place public statements that promote their

professional practice, products, or activities retain professional responsibility for such statements.

Psychologists retain professional responsibility for false, deceptive, or fraudulent

public statements by others whom they have engaged to promote their work or

products. Failure to prevent or to correct such misstatements is a violation of

Standard 5.02.

􀀵 A psychologist viewed the website of the company that was publishing a book she

had just completed. She was surprised and pleased to see the company had started

advertising the book as “forthcoming.” She then noticed that she was wrongly listed

on the website as professor of psychology at a university where she had taught as an

adjunct several years ago. She called her editor at the company to notify him of the

error and to ask him to take steps to correct the website. She followed up with a letter

to him reiterating this request and copied the chair of the psychology department at

the university mentioned.

􀀴 A psychologist developed a program that enabled other psychologists to score a

popular psychological test on their computers. The psychologist had not yet completed

complementary software that would provide narrative interpretations of the

scores. The marketing staff at the distribution company he contracted with to sell

his product advised him that the scoring software would sell better if it was advertised

as providing both scoring and interpretation. They argued that even though

this was not currently true, because he was already working on the new program,

eventually those who bought the original software would be able to use the complementary

software for narrative interpretations. The psychologist agreed to the

misleading advertisement.

social work licensure ID number. The letterhead did not indicate that his license was

in social work and not psychology.

􀀴 On her personnel curriculum vitae, a psychologist claimed that she had received her

Ph.D. from an accredited university, when her actual degree was from an unaccredited

school to which she had transferred.

FOR THE USE OF UNIVERSITY OF PHOENIX STUDENTS AND FACULTY ONLY.

NOT FOR DISTRIBUTION, SALE, OR REPRINTING.

ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED.

168——PART II ENFORCEABLE STANDARDS

This standard prohibits psychologists from paying or otherwise compensating

members of the media in return for news coverage of their work. The use of the

term compensate rather than pay means that psychologists who give nonmonetary

gifts or pay for expensive dinners for journalists or others in the media in return for

publicity in a news item may be considered in violation of this standard.

as such.

Standard 5.02c permits psychologists to run paid advertisements describing

their services, publications, products, or other aspects of their work, as long as it

is stated or otherwise clear to consumers that it is a paid advertisement. The standard

applies to advertisements on the Internet, in print, or in other media.

“Canned columns” are an example of a paid advertisement that often is presented

in a way that can be deceptive to consumers. Canned columns written and paid

for by psychologists are typically presented in news or advice column format

intended to mislead readers to believe that the psychologist has been invited or

hired by the magazine or other media outlet to write the column because of his

or her expertise. The “column” usually includes a description of the psychologist’s

services, the psychologist’s picture, and contact information. Canned columns

that do not include a clear statement that the column is a “paid advertisement”

are in violation of this standard. In some instances, psychologists do not write the

column themselves but purchase it from a writer who sells columns to psychologists

nationwide. In such instances, the column must state that the psychologist

is providing but has not written the column (see also Standard 5.01a, Avoidance

of False or Deceptive Statements).

5.03 Descriptions of Workshops and

Non-Degree-Granting Educational Programs

To the degree to which they exercise control, psychologists responsible for announcements,

catalogs, brochures, or advertisements describing workshops, seminars, or other nondegree-

granting educational programs ensure that they accurately describe the audience

for which the program is intended, the educational objectives, the presenters, and the fees

involved.

Standard 5.03 applies to workshops, seminars, and non-degree-granting educational

programs that are not part of the established degree-granting education

and training programs covered under Standard 7.02, Descriptions of

Education and Training Programs. Psychologists who offer non-degree-granting

programs are responsible for ensuring the accuracy of announcements, catalogs,

brochures, or advertisements appearing in print, the Internet, or other media.

Announcements must clearly specify the intended audience, educational objectives,

presenters, and fees. The phrase “to the degree to which they exercise control”

is included in the standard in acknowledgment that despite a psychologist’s

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NOT FOR DISTRIBUTION, SALE, OR REPRINTING.

ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED.

Chapter 8 Standards on Advertising and Other Public Statements——169

best efforts to control and monitor the process, errors or misrepresentations by

others may occur during the production and distribution of materials.

Psychologists should take reasonable steps to correct these errors.

􀀴 Registration for a 1-day workshop on projective assessment techniques given by a

well-known psychologist was advertised in several psychology journals and newsletters.

Individuals paid in advance to reserve a seat in the course. Registration money

could be partially refunded up to 2 days prior to the workshop. Several registrants

who arrived to take the workshop were surprised to learn that although they were

permitted to attend, they would not be given a certificate of completion because they

were not licensed psychologists. The registrants complained that the advertisement

had not mentioned that a license was required to receive the certificate and asked

for their money back. Stating the cancellation policy, the psychologist refused to

return the fees.

􀀴 A psychologist offered a seminar on child abuse identification and reporting that was

advertised as fulfilling the state licensing board requirement for child abuse reporting

training. Attendees who later submitted their seminar completion certificate to the

state board were told that the curriculum did not satisfy the state’s educational

requirement.

􀀴 A group of psychologists offered an 8-week certificate program on drug addictions

counseling. Advertisements for the seminar listed the fee as $1,000. During the last

week of the program, attendees were told that those who wished to obtain an official

certificate documenting their participation must pay an additional $100.

Industry-Sponsored Workshops

The pharmaceutical industry has become a primary sponsor of continuing

medical education because sponsors have found that it is a tool for influencing audiences

to use their products (Pachter et al., 2007). Psychologists conducting industrysponsored

continuing education programs must ensure that the teaching materials

are not biased toward the marketing interests of the sponsor (see also Standard 3.06,

Conflict of Interest).

5.04 Media Presentations

When psychologists provide public advice or comment via print, Internet, or other electronic

transmission, they take precautions to ensure that statements (1) are based on their professional

knowledge, training, or experience in accord with appropriate psychological literature and practice;

(2) are otherwise consistent with this Ethics Code; and (3) do not indicate that a professional

relationship has been established with the recipient. (See also Standard 2.04, Bases for Scientific

and Professional Judgments.)

Standard 5.04 applies to psychologists who issue public advice or comment via

print, Internet, television, radio, or other media. Such activities can include an

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NOT FOR DISTRIBUTION, SALE, OR REPRINTING.

ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED.

170——PART II ENFORCEABLE STANDARDS

occasional news media interview, a regular column in a print or Internet publication,

a recurring spot on television or radio talk shows, or advice giving on one’s

own professional blog. The standard does not apply to comments made to individuals

with whom psychologists have an established professional relationship,

such as an Internet communication or videoconferencing with a client/patient,

student, colleague, or organizational client.

Competence and Bases for Judgments

Research and professional psychologists working through the media make

important contributions to the accuracy of reporting and societal awareness of

scientific and professional knowledge relevant to issues of public concern. This

can include explaining (a) current research findings on human cognition,

behavior genetics, emotion, personality, and behavior; (b) contributions of

forensic psychology to legal decisions broadly or with respect to cases capturing

media attention; (c) factors underlying organizational, military, political,

religious, and other group attitudes and behaviors; or (d) the nature of and

effective approaches to widely experienced psychological challenges (e.g.,

parent–adolescent conflict, stressors associated with caring for disabled children

or elder parents); and (e) the nature and treatment of psychological

problems or mental health disorders (e.g., learning disabilities, schizophrenia,

bipolar disorder).

Standard 5.04 prohibits psychologists from giving public advice or comment

on the radio, in print media, on television, on the Internet, or other forms of

communication on topics and issues that are outside the boundaries of their

competence based on their education, training, supervised experience, or other

accepted means of acquiring professional or scientific expertise (see Standard 2.01a,

Boundaries of Competence). The standard also prohibits psychologists from

giving public comment or advice that significantly deviates from or is otherwise

inconsistent with established psychological literature and practice (see

Standard 2.04, Bases for Scientific and Professional Judgments). This standard

thus reflects the importance of establishing public trust in the discipline

through adherence to professional standards of conduct (Principle B: Fidelity

and Responsibility).

􀀴 A comparative psychologist who had spent her career specializing in language in

primates appeared on several talk shows providing public advice on how parents

could identify and correct child language disorders.

􀀴 In a television interview, a counseling psychologist advised college students to follow

his 10-step cure for test anxiety. The steps included drinking green tea, taking vitamin

supplements, studying in groups, and other recommendations not in accord with

recent research or established counseling techniques for test anxiety.

FOR THE USE OF UNIVERSITY OF PHOENIX STUDENTS AND FACULTY ONLY.

NOT FOR DISTRIBUTION, SALE, OR REPRINTING.

ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED.

Chapter 8 Standards on Advertising and Other Public Statements——171

Otherwise Consistent With the Ethics Code

Public comment or advice through the media or the Internet must be in compliance

with all relevant standards of the Ethics Code.

􀀴 After speaking with a listener for 3 minutes on a live radio talk show, a psychologist

stated over the air that the listener showed definite signs of obsessive–compulsive

disorder. Before going to a commercial break, the psychologist asked the

listener to stay on the line “for a referral to a health care professional who can

help you with this serious disorder” (violation of Standard 9.01a and b, Bases for

Assessments).

􀀴 A developmental psychologist created a blog on which he provided critiques and

recommendations for age-appropriate children’s products. The blog did not include a

statement informing readers that the psychologist was on the board of directors of a

company whose toys he regularly reviewed favorably (violation of Standard 3.06,

Conflict of Interest).

􀀴 In response to a reporter’s request for background on a highly publicized murder, a

psychologist described details of items on forensic tests typically administered in these

cases (violation of Standard 9.11, Maintaining Test Security).

Do Not Indicate a Professional Relationship

Has Been Established

Psychologists providing public advice in response to questions over the radio, on

television, on the Internet, or in published advice columns should clarify the educative

versus therapeutic nature of their answers, avoid language that implies personal

knowledge about the person asking the question, and take steps to avoid repeat

communications with the person that may encourage the mistaken impression that

a professional relationship has been established.

􀀴 A group of psychologists established a psychology advice e-mail service. The group’s

website included each participating psychologist’s credentials and picture. The website

described the service as one that provides advice for people suffering from “social

anxiety.” Individuals were charged by credit card for an answer to each e-mail question

they submitted. The site specifically stated that the service was not therapy.

However, the psychologists’ answers were written in a very individualized and personalized

manner rather than in broad educative statements, and individuals were

encouraged to identify the psychologist who they would like to answer their question.

There was no limit to the number of questions that could be submitted, and some

clients submitted daily questions to the same psychologist over several weeks or even

months (see D. E. Shapiro & Schulman, 1996, for an excellent discussion of such a case

and related issues).

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172——PART II ENFORCEABLE STANDARDS

5.05 Testimonials

Psychologists do not solicit testimonials from current therapy clients/patients or other persons

who because of their particular circumstances are vulnerable to undue influence.

Psychologists are prohibited from asking individuals who are vulnerable to

undue influence to provide commercial statements testifying to the benefits of the

psychologist’s services. Standard 5.05 specifically prohibits solicitation of testimonials

from clients/patients currently in therapy with the psychologist. Clients/

patients are particularly vulnerable to exploitation by a psychologist who seeks their

public testimonials because of power inequities between the therapist and client/

patient, the psychological problems that brought clients/patients to therapy, the

sharing of personal thoughts and feelings in therapy, and dependence on the psychologist

for treatment.

􀀴 A psychologist used testimonials from current clients on a website advertising his

Internet-based counseling services.

Need to Know:

Working With the Media

Below are some general points to consider when working with the media (for these and

other excellent recommendations, see McGarrah, Alvord, Martin, & Haldeman, 2009).

When asked to comment on psychological factors influencing the behavior of a

person in the news, make general comments only and explicitly state that you have

not personally evaluated this person.

Be wary of potential client/patient exploitation, harm, and unanticipated violations

of confidentiality when reporters ask you to recommend clients who might be part

of the interview or when clients grant a reporter the right to speak with you about

their case.

When illustrating a point with a case example on blogs, talk shows, or interviews,

avoid risks to client/patient confidentiality and potential harm by presenting

explicitly labeled hypothetical cases.

Before an interview or broadcast, know its length and the nature of the

medium (e.g., live or pretaped), carefully plan out what you will say to limit the

possibility of distortion, and be aware that whether or not they provide you an

opportunity to fact-check their report in advance, members of the media have

final control over the information disseminated (Standard 1.01, Misuse of

Psychologists’ Work).

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NOT FOR DISTRIBUTION, SALE, OR REPRINTING.

ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED.

Chapter 8 Standards on Advertising and Other Public Statements——173

Parents of children with learning disabilities, who depend on a school psychologist’s

yearly evaluation to qualify for special education services for their children,

might, because of their particular circumstances, be considered vulnerable to

undue influence to offer testimonials for the psychologist. Family members in

therapy with a psychologist for court-ordered treatment might also be considered

vulnerable to threat or exploitation if approached to give a testimonial.

The standard does not prohibit unsolicited testimonials or the solicitation of

testimonials from former clients/patients who are not vulnerable. However, psychologists

should be cautious about approaching former therapy clients/patients

who may be vulnerable to undue influence based on their mental status, the

duration and intensity of the therapy, the circumstances of termination, the amount

of time that has passed since termination, or comments that the psychologist

might have made during therapy inviting the possibility of a posttermination

testimonial.

5.06 In-Person Solicitation

Psychologists do not engage, directly or through agents, in uninvited in-person solicitation of

business from actual or potential therapy clients/patients or other persons who, because of

their particular circumstances, are vulnerable to undue influence. However, this prohibition

does not preclude (1) attempting to implement appropriate collateral contacts for the purpose

of benefiting an already engaged therapy client/patient or (2) providing disaster or community

outreach services.

Standard 5.06 prohibits psychologists from soliciting business from individuals

who, because of their particular circumstance, are vulnerable to undue influence.

The standard addresses business solicitation behaviors often characterized as

“ambulance chasing.” Individuals who are current or potential therapy clients/

patients are specifically identified as vulnerable in this standard. Others who may

be vulnerable to undue influence are individuals whose loved one has just committed

suicide or a person who is abusing drugs or alcohol. Psychologists are prohibited

from approaching these individuals either directly or through another person

to solicit business if the psychologist has not been invited by the individual or a

legally authorized representative to do so.

Although not explicitly prohibited in the language of Standard 5.06, psychologists

should be wary of public statements, brochures, and web-based or other

descriptions of services that are intended to exploit populations vulnerable to

undue influence by generating fear and anxiety (Shead & Dobson, 2004).

􀀴 A clinical child psychologist sought to generate clients by speaking to breast cancer

survivor support groups about “serious psychological disorders of childhood” that

“often” emerge in children as a reaction to maternal illness.

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ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED.

174——PART II ENFORCEABLE STANDARDS

Permitted Behaviors

The standard does not prohibit psychologists from establishing a professional

relationship with persons in therapy with another professional or otherwise vulnerable

to undue influence if the person approaches the psychologist for services (see

also Standard 10.04, Providing Therapy to Those Served by Others).

Collateral Treatment

The standard does not preclude psychologists from approaching a family member

or significant other to invite them to participate in collateral treatment to benefit

a client/patient with whom a psychologist has a professional relationship.

􀀵 A psychologist treating an adult woman for bulimia, with the patient’s permission,

invited her husband to participate in family therapy sessions where the focus was

on the woman’s health. Whether the husband was currently in therapy with

another professional was not an issue because the reason he had been approached

was to participate in therapy where the wife was the identified patient (see also

Standard 10.02a, Therapy Involving Couples or Families).

Disaster and Community Outreach

The standard also explicitly permits psychologists to approach individuals to provide

disaster or community outreach services. Psychologists may offer emergency services to

individuals who are distraught or otherwise vulnerable as a result of a natural or other

type of disaster. Within the mental health and aging field, it is generally recognized that

older adults may not spontaneously self-refer for mental health services. A variety of

outreach activities have been used in public and private services for older adults that

involve approaching persons who are not thinking of seeking psychological interventions,

educating them about the benefits of mental health intervention, and encouraging

them to seek such help. Such outreach is permissible under Standard 5.06.

HOT TOPIC

Avoiding False and Deceptive Statements

in Scientific and Clinical Expert Testimony

When research and professional psychologists provide oral testimony or prepare written reports for legal

proceedings conducted in the public domain, they are engaging in public statements as defined under

Standard 5.01a, Avoidance of False or Deceptive Statements, of the APA Ethics Code. As articulated in Principle C:

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Chapter 8 Standards on Advertising and Other Public Statements——175

Integrity, psychologists seek to promote accuracy, honesty, and truthfulness in the science and practice of

psychology. When forensically relevant statements or reports misrepresent facts through commission or

omission, psychologists can be in violation of Standard 5.01a. False, deceptive, or fraudulent statements most

often emerge in legal contexts when psychologists lose their objectivity as a consequence of misunderstanding

the psychologist’s role, conflicts of interest, or susceptibility to attorney influences. This Hot Topic identifies and

suggests preventive actions to avoid these ethical pitfalls.

Navigating Relationships With Attorneys

Engagement in the legal system thrusts psychologists into dynamic relationships with attorneys whose role

obligations will sometimes converge and often conflict with the ethical responsibilities of psychologists.

Understanding Distinctive Roles. The rules embedded within constitutional, civil, and criminal law

ensure that justice is served by protecting the rights of each party in a dispute to control what information will

be placed into evidence and debate its legal merits. The primary responsibility of attorneys is therefore to

advocate on behalf of their client and ensure that the party they represent has presented the best case possible

before the court.

By contrast, in the legal context, the primary responsibility of psychologists serving as expert witnesses

is to provide the triers of fact (e.g., the judge, jury, administrative hearing officer) with the information they

need to make determinations about the legal question at hand. The primary responsibility of psychologists

providing opinions to the court is therefore to advocate for the facts and not for the legal position

advanced by either of the disputing parties (Melton, 1990). The objectivity necessary to advocate for the

facts can be compromised when psychologists’ legal opinions are influenced by pressure from the retaining

attorney.

Establishing Boundaries. Prior to trial, the retaining attorney may pressure the psychologist to provide

an opinion that goes beyond or is unsupported by the scientific or clinical data. Anticipating this possibility

provides the psychologist with the opportunity to establish boundaries between the expert’s objective role and

the attorney’s advocacy role (Bush et al., 2006; Woody, 2009).

Initial conversations with the retaining attorney should clarify the boundaries of competence within which

the psychologist will testify (Standard 2.01f, Boundaries of Competence). Psychologists should also clarify their

obligation to offer an honest opinion based on available facts (Principle C: Integrity). Shuman and Greenberg

(2003) recommend that the initial conversation be followed up with a retaining letter from the attorney

documenting the issues on which the psychologist will be asked to testify.

Avoiding Bias in the Collection and

Interpretation of Forensic Data

In the legal context, biased expert testimony can cause significant harm to the legal system and its stakeholders

if it misleads the triers of fact into unfounded legal determinations (Principle A: Beneficence and

Nonmaleficence; Standard 3.04, Avoiding Harm).

Inferential and Confirmation Bias. Data collection and interpretation biases can result in misdiagnosis,

selective data collection, inaccurate and misleading expert reports, and fraudulent or deceptive statements in

court (Deidan & Bush, 2002).

The following behaviors should be avoided:

Seeking out information to confirm the litigant’s argument or the psychologist’s own theoretical or

personal view (Bush et al., 2006; Neoh & Mellor, 2009; Shuman & Greenberg, 2003; Stern, 2001)

Overreliance on diagnoses with which the psychologist is most familiar

Over- or under-attribution of behaviors to situational versus stable personal characteristics

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Preconceptions or initial impressions resistant to challenge by conflicting data

Reliance on reconstructive memory to fill in gaps in evidence or failure to adequately record facts that

arise during evidence collection (Deidan & Bush, 2002; Otto & Martindale, 2007)

Strategies to reduce the potential for such biases include the following:

Generating alternative hypotheses (Bush et al., 2006)

Using comprehensive batteries for forensic assessments

Carefully recording all facts uncovered during pretrial data collection

Examining which facts support and challenge initial impressions or preconceptions (Deidan &

Bush, 2002)

Guarding against assumptions that the attorney has provided all relevant facts and asking for pleadings

and legal memorandums and competing perspectives of stakeholders in the legal case at hand (Saks &

Lanyon, 2007; Shuman & Greenberg, 2003)

Resisting Requests to Alter Reports. Irrespective of the format in which the expert’s opinion will be

provided, psychologists are ethically required to maintain accurate records of their work for the period of time

in which it may be needed to ensure the accuracy of their testimony (Standard 6.01, Documentation of

Professional and Scientific Work and Maintenance of Records).

In their advocacy role, retaining attorneys may ask psychologists to modify their report in ways that bias

information or opinion in favor of their client. Compliance with Standard 5.01a, Avoidance of False or

Deceptive Statements, requires that psychologists deny such requests. If an attorney’s suggestion represents

a valid factual correction, the correction should either be presented in an amendment to the original

document or be included in a clearly identified revision of the report with a written rationale for the

modification (Bush et al., 2006).

Acknowledging the Limitations of Data or Conclusions. Psychologists should always anchor their

scientific opinions to available empirical data and their clinical opinions to collected data. False or

deceptive statements emerge in forensic testimony or reports when psychologists fail to adequately

indicate limits to the certainty with which clinical data or research findings can diagnose or predict

conclusions drawn about individuals (Standards 5.01a, Avoidance of False or Deceptive Statements, and

9.06, Interpreting Assessment Results).

Misuse of Psychologists’ Work. Attorneys will often attempt to control the nature of oral testimony to

omit facts that would hurt their case or inaccurately represent the psychologist’s statements to support their

client’s case. To take reasonable steps to correct the misrepresentation of their work, psychologists who provide

expert testimony must be familiar with the judicial rules governing their ability to correct misstatements

regarding their testimony (Standards 1.01, Misuse of Psychologists’ Work, and 2.01f, Boundaries of

Competence).

For example, attorneys often attempt to limit expert’s comments to “yes/no” responses. Psychologists

should be aware that some jurisdictions provide expert witnesses greater leeway than other witnesses in

requesting court permission to qualify their statements when they believe attorney questioning has created

confusion or misrepresentation of their opinion. Another strategy for limiting attorneys’ ability to misrepresent

their findings is for psychologists to avoid declarative oral or written statements that do not reflect the

balancing of facts that contributed to their opinion.

Limiting Attorney Attempts to Impeach Testimony. Opposing attorneys will often attempt to

impeach the credibility of an expert witness. In addition to the recommendations discussed above, forensic

psychologists should be prepared to counter accusations of conflict of interest and inadequate

qualifications and to competently address hypothetical and difficult questions during cross-examination

(Eisner, 2010).

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Chapter 8 Standards on Advertising and Other Public Statements——177

Maintaining Objectivity and Avoiding Bias:

The Importance of Self-Evaluation

Prior to agreeing to serve as an expert witness, psychologists are encouraged to engage in the following forms

of self-inquiry regarding possible biases that might lead to false or deceptive testimony (Bush et al., 2006;

Fisher, 1995; Gutheil & Simon, 2004; Saks & Lanyon, 2007):

Conflicts of Interest

Will financial interests influence my willingness to go beyond my expertise or the facts to give opinions

supporting the attorney’s case?

Am I tempted to sell my testimony for monetary gains?

Am I fearful an objective opinion will deter the attorney from hiring me in the future?

Am I being sought because of a reputation for providing opinions consistently favoring the

retaining party?

Personal and Professional Bias

Have I already determined the nature of the testimony I will provide based on the attorney’s initial

description of the case?

Am I unduly influenced by sympathy for the plaintiff or defendant?

Does the case touch upon a personal issue?

Will I use my testimony to advocate for a cause I believe in?

Will moral, religious, political, or other biases intrude upon my ability to present all sides of the issue?

Multiple Relationships

Do I have a special relationship with the attorney or the attorney’s client that would impair my

objectivity?

Do I know the attorney or litigant socially?

To what degree will these relationships place pressure on me to change my opinion if it is in conflict

with the litigant’s legal argument?

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178

CHAPTER 49

Standards on

Record Keeping and Fees

6. Record Keeping and Fees

6.01 Documentation of Professional and

Scientific Work and Maintenance of Records

Psychologists create, and to the extent the records are under their control, maintain, disseminate,

store, retain, and dispose of records and data relating to their professional and scientific work in

order to (1) facilitate provision of services later by them or by other professionals, (2) allow for

replication of research design and analyses, (3) meet institutional requirements, (4) ensure accuracy

of billing and payments, and (5) ensure compliance with law. (See also Standard 4.01, Maintaining

Confidentiality.)

In appropriately documenting and maintaining records, psychologists benefit

those with whom they work (Principle A: Beneficence and Nonmaleficence) and

fulfill their responsibilities to the society and the specific organizations and communities

in which they work (Principle B: Fidelity and Responsibility). Responsible

creation and maintenance of assessment and treatment records benefit clients/

patients by ensuring continuity of services provided by the individual psychologist

and other qualified professionals. Scientific records provide the necessary information

required for replication of research and for peer, sponsor, and IRB evaluation

of methodological modifications that may be required. Appropriate record keeping

by industrial–organizational and consulting psychologists assists organizations in

maintaining and improving work performance and in ensuring compliance with

relevant regulations and law. Record keeping also benefits psychologists by providing

documentation of appropriate planning, implementation, evaluation, and

modifications of services or research. Good record keeping will also include documentation

of ethical, scientific, or practice decision making that can assist in effectively

responding to ethics complaints.

HMO

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Chapter 9 Standards on Record Keeping and Fees——179

Under Standard 6.01 of the APA Ethics Code (APA, 2010c), psychologists must

create, maintain, disseminate, store, retain, and dispose of records and data in a

manner that enables the records to be used effectively and appropriately by the

psychologist or others and to benefit those with whom the psychologist works.

Steps necessary to comply with this standard will vary with the purpose of the psychological

activity and applicable state and federal regulations and institutional

policies. The standard applies to written reports, computer files, audio- and videotapes,

and reports in any other media in which information can be created and

stored. Creating or maintaining records that are disorganized, illegible to others, or

have not been appropriately updated would be a violation of this standard. The

phrase “to the extent the records are under their control” recognizes that psychologists

may have limited or no control over records once they are appropriately

released to third parties or when they are the property of an organization, company,

institution, or government agency for which a psychologist works or consults (see

also Standards 1.01, Misuse of Psychologists’ Work; 1.03, Conflicts Between Ethics

and Organizational Demands; and 3.06, Conflict of Interest).

Records for Mental Health Services

According to the Record Keeping Guidelines developed by the APA Committee

on Professional Practice and Standards, Board of Professional Affairs (APA, 2007c),

the level of detail and adequacy of content included in records is determined by the

information necessary to

(a) provide good care, (b) assist collaborating professionals in delivery of

care, (c) ensure continuity of services in the case of a psychologist’s injury,

disability, or death or with a change of provider; (d) provide for relevant

supervision or training; (e) provide documentation required for reimbursement

or required administratively under contracts or laws; (f) effectively

document any decision making, especially in high-risk situations;

and (g) allow the psychologist to effectively answer a legal or regulatory

complaint. (p. 995)

The drafters of the guidelines recognized that across the diverse settings in which

psychologists work, the content of records will depend upon legal (rules of evidence)

and regulatory factors (HIPAA, FERPA), work settings (e.g., institutions,

disaster relief), requirements of third parties, and the nature of the services provided

(Drogin, Connell, Foote, & Sturm, 2010). The guidelines thus specify the

basic components that psychologists should always consider including in records of

psychological services:

Information for the client’s ongoing file

Identifying data and contact information

Fees and billing arrangements

Guardianship status, if appropriate

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180——PART II ENFORCEABLE STANDARDS

Informed consent/assent and any waivers of confidentiality

Mandated reporting, if relevant

Diagnosis or basis for request for services

Treatment plan (updated as appropriate)

The guidelines also recommend the type of information that should be recorded

for each substantive contact with clients as follows:

Date of service and session duration

Type of service (e.g., consultation, assessment, treatment)

Nature of professional intervention (e.g., modality)

Nature of professional contact (e.g., in-person, e-mail, phone)

Current assessment (formal or informal) of client/patient status

Need to Know: Unexpected

Contacts With Clients/Patients

It may be necessary to record additional information depending on the circumstances and

client needs. For example, it is often wise for practicing psychologists to note in their

records unexpected contacts with clients/patients outside of the office or by phone or

Internet. As described in greater detail in Chapter 6, Standard 3.05, Multiple Relationships,

such records are often helpful in understanding clients’/patients’ misperceptions about the

therapeutic relationship or responding to ethics complaints based on misperceptions.

Emergency interventions, including contacts with other professionals, family members,

partners, or others to ensure adequate services or protect client/patient welfare, should

also be included.

Multiple Client Records

Psychologists providing couple, family, or group therapy must be alert to issues

that may arise when keeping multiple client records. For example, following marital

dissolution, it may be unclear who should have access to records created during

couples or family therapy. Points for consideration for multiple client records highlighted

by the Record Keeping Guidelines (APA, 2007c) include (a) whether the

identified client is the couple/family unit or each individual, (b) legal requirements

and implications for creating separate or a single joint record, and (c) agreement of

all concerned on the record keeping policy during informed consent (see also

Standards 3.10, Informed Consent; 4.01, Maintaining Confidentiality; 4.02,

Discussing the Limits of Confidentiality; 10.01, Informed Consent to Therapy;

10.02, Therapy Involving Couples or Families; and 10.03, Group Therapy).

Relatedly, when other individuals are involved for collateral support for an identified

patient, these individuals are not the “client/patient” and the psychologist does

not maintain separate health records for them. Rather, information provided by the

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Chapter 9 Standards on Record Keeping and Fees——181

collateral that is relevant to the primary client’s/patient’s treatment is entered in the

client’s/patient’s record (Knauss & Knauss, 2012; Younggren, 2009).

Length of Record Retention

The number of years for retention of records varies with respect to state law,

federal regulations, and institutional requirements. The APA Record Keeping

Guidelines (APA, 2007c) recommend that, in the absence of specific legal requirements

for record retention, complete records are maintained at minimum until

7 years after the last date of service delivery for an adult or until 3 years after a

minor reaches the age of majority, whichever is later.

HIPAA. HIPAA regulations require that policies and procedures used to comply with

the Privacy Rule are documented and retained for 6 years from the date of creation

or the last date in which it was in effect, whichever is later (45 CFR 164.530[j][2]). If

state law establishes longer periods of record retention than HIPAA, psychologists

who are covered entities must follow the state law (see “A Word About HIPAA” in the

Preface to this book).

Need to Know: Electronic

Communications With Clients/Patients

HIPAA requires that records of all clinically relevant e-mail messages, including the full text

of a patient’s query and a psychologist’s reply, should be stored in the patient’s medical

record. In general, if you or your client/patient are sending clinically relevant communications

via e-mail or text messaging, in most cases those communications will be considered

part of the treatment record and copies of those communications must be maintained.

Psychotherapy Notes

Psychotherapy notes (also known as process or personal notes) are considered

a work product privilege and are immune from subpoena (Mental Health

and Developmental Disabilities Confidentiality Act of 1979, ¶ 802, § 2[4]).

Accordingly, psychotherapy notes can be disposed of at any time, unless state law

provides otherwise.

HIPAA. HIPAA creates a separate category for “psychotherapy notes,” defined as

“notes recorded (in any medium) by a health care provider who is a mental health

professional documenting or analyzing the contents of conversation during a private

counseling session or a group, joint, or family counseling session and that are

separated from the rest of the individual’s medical record” (45 CFR 164.501).

Patients do not have a right of access to psychotherapy notes. Psychologists may

choose to provide patient access or agree to release psychotherapy notes to others

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182——PART II ENFORCEABLE STANDARDS

with the appropriate authorization of the patient. Psychotherapy notes are

exempted from HIPAA general provisions for sharing PHI for the treatment, payment,

or health care operations of another entity. For example, health plan providers

and other HIPAA-covered entities may not condition the provision of treatment,

payment, enrollment in the health plan, or eligibility for benefits on a patient’s

authorization to have a psychologist release psychotherapy notes. For psychotherapy

notes to meet HIPAA exemption criteria, psychologists must store the notes in

a file separated from the client’s/patient’s other health records.

Billing and Fees

The Record Keeping Guidelines (APA, 2007c) highlight a few areas relevant to

Standard 6.01 that call for special attention. First, records should include documentation

of a fee and billing agreement between the psychologist and client/patient, including

when applicable agreements regarding third-party payment for services (e.g., the

client’s/patient’s health insurance, billing of services to a family member). When

appropriate, acknowledgment of client/patient receipt of the psychologist’s standard

written fee policy should be included in the record (see Standard 6.04, Fees and

Financial Arrangements, for additional detail on fee and billing information). Second,

as detailed later in this chapter under Standard 6.05, Barter With Clients/Patients,

barter agreements and transactions can be ethically complex and thus require careful

documentation to ensure that compensation is fair to both the client/patient and the

psychologist. Third, psychologists need to document and justify any adjustment in the

balance owed for services, especially when third parties are involved (see Standard 6.06,

Accuracy in Reports to Payors and Funding Sources). Fourth, any fee collection efforts

should also be recorded (see Standard 6.04e, Fees and Financial Arrangements).

Psychologists providing health care–related services also need to be aware of the

DHHS Transaction Rule requiring standard formatting of electronic patient records

for health care claims and other purposes (see http://aspe.hhs.gov/admnsimp/).

Additional Implications of HIPAA

Access of Individuals to PHI. Clients/patients have the right to inspect and obtain

a copy of their PHI records used by the psychologist to make diagnostic, treatment,

and billing decisions (45 CFR 164.524). For exceptions to this rule, see

discussions in Chapter 12 on Standards 9.04, Release of Test Data, and 9.11, Test

Security. Where HIPAA regulations apply, psychologists’ records must be created

and stored in a manner that facilitates compliance with this and other aspects of

the Privacy Rule. For group practices, records must also include the name of the

privacy officer.

Right to Amend. Clients/patients have the right to request that their PHI be

amended if they believe that the information provided is incorrect (45 CFR

164.526). If a psychologist believes that the amendment is justified, the amendment

should be attached to the record; the psychologist should never alter the original

record.

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Chapter 9 Standards on Record Keeping and Fees——183

Right to an Accounting. Clients/patients have a “right to an accounting” of disclosures

of PHI that entails a list of individuals or organizations to whom PHI has

been disclosed in the past 6 years. Content of the accounting must include the date

of the disclosure, the name of the entity or person who received the PHI and the

address if known, a brief description of the PHI disclosed, and the purpose of its

disclosure (45 CFR 164.528). Failure to keep an accurate record of such disclosures

would be in violation of Standard 6.01.

Record Keeping in Organizational Settings

The Record Keeping Guidelines (APA, 2007c) recognizes that organizational

settings may present unique challenges in record keeping. First, organizations

have their own record keeping requirements that differ from those outlined

previously. These requirements are influenced by organization mission and local,

state and federal laws. These requirements may or may not be clearly defined

within the organization itself. The Guidelines recommend that psychologists

consult with organizational representatives, colleagues, and relevant law to identify

differences in record keeping requirements. In the event there is a conflict

between the Ethics Code and organizational record keeping policies, psychologists

should follow the recommendations under Standard 1.03, Conflict Between

Ethics and Organizational Demands.

Second, record ownership is often defined by the psychologist’s legal relationship

with the organization. For example, in consultative relationships record ownership

is typically maintained by the psychologist, whereas in staff relationships the

organization has ownership, and the physical records may not be able to travel with

the psychologist upon departure or be shared with others without organizational

permission (see also Standard 6.02b, Maintenance Dissemination, and Disposal of

Confidential Records of Professional and Scientific Work). The Guidelines recommend

that psychologists clarify the issue of ownership at the beginning of their

professional relationship with an organization.

Third, in organizational settings multiple staff members may have access and contribute

to the record and their disciplinary standards for record creation, maintenance,

and confidentiality may differ from the discipline of psychology or may be

undefined. The Guidelines encourage psychologists to participate in development

and refinement of multidisciplinary organizational policies involving record keeping.

Educational Records

Psychologists working in schools need to be familiar with FERPA (20 U.S.C.

§ 1232-34 CFR Part 99; www.ed.gov/offices/OM/fpco/ferpa/index.html) to ensure

compliance with Standard 6.01. Under FERPA, parents and students older than age 18

or attending college have the right to (a) inspect and review the student’s education

records maintained by the school, (b) request that a school correct records that they

believe to be inaccurate or misleading, (c) call for a formal hearing if the school does

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184——PART II ENFORCEABLE STANDARDS

not amend the record, and (d) place a statement with the record setting forth the

parent or student views if the school still does not decide to amend the report.

Records are not considered part of a student’s education record and therefore are not

subject to parental or student inspection or amendment if they are (a) kept in the

sole possession of the school psychologist, (b) used only as a personal memory aid,

and (c) not accessible or revealed to any other person except a temporary substitute

for the maker of the record. In addition, under IDEA (Pub. L. No. 108-446,

§ 682[c]), schools must develop policies for the storage, retrieval, and disposal of

educational records, and parents of students must be provided a statement of these

policies.

Need to Know: Avoiding Conversion of

Treatment Records to Educational Records

School-employed and community-based psychologists need to be aware of the special

legal status of “educational records” governed by FERPA, distinctions between these

laws and those pertaining to mental health treatment records (HIPAA), and how to

avoid unintended violations of youth privacy through appropriate record keeping procedures.

Recent analyses by Doll, Strein, Jacob, and Prasse (2011) and R. A. Wise, King,

Miller, and Pearce (2011) provide important guidance for the correct application of

HIPAA and FERPA to treatment records in college counseling centers and elementary

and secondary schools. First, they emphasize that FERPA applies only to students’ education

records; it does not apply to student medical or mental health treatment records.

As a consequence, once treatment information is placed in a student’s educational

record, FERPA does not offer the confidentiality protections for PHI provided by HIPAA.

For example, school officials, or in some cases instructors or campus security, can inspect

students’ educational records without consent and without accounting for the disclosure.

Unlike treatment records, educational records can be transferred to another college

in which the client/student enrolls and can be used in a school’s legal case against a

student. Further, there are no restrictions on students’ access to psychotherapy notes or

psychological assessments placed in their educational records. To ensure that treatment

records are appropriately maintained, Doll et al. (2011) and R. A. Wise et al. (2011)

highlight the following:

FERPA does not apply to students’ psychological treatment records unless they are

converted into educational records through disclosure to other school personnel.

This means that school-based psychologists, counselors, trainees, and supervisors

should not discuss student treatment with other school or university personnel and

ensure that nonclinic or school staff do not have access to psychological records.

School-based and counseling center treatment personnel should clearly differentiate

psychological from educational records through labeling and separate files.

When treatment records do not come under FERPA, if students request to examine

their psychological records, they should be informed of the possibility that the

material will be converted into educational records.

When parents request that assessment or treatment records be sent to their child’s

school, community-based psychologists should explain the implications of FERPA

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Chapter 9 Standards on Record Keeping and Fees——185

Forensic Records

Psychologists conducting forensically relevant activities need to be familiar

with laws governing the creation, maintenance, and disposal of records. In the

legal arena, the notes, test data, testing protocols, and research protocols are governed

by the rules of evidence in the court’s jurisdiction. For example, with the

exception of relevant client/patient privilege, the entirety of the psychologist’s

records created or used in a case is subject to discovery. In addition, in deposition

and court testimony, psychologists are often asked when certain facts became

known and, if so, by whom and in what context. Sufficiently detailed records are

essential when there is an extended period between relevant interviews or data

collection and hearing of a case (APA Committee on Legal Issues, 1996; Martindale,

2004). Under Standard 6.01, forensic records must be created and maintained in a

manner that facilitates their appropriate use in the legal arena (APA Committee on

Legal Issues, 2006; see also Standard 2.01f, Boundaries of Competence).

Documentation of Scientific Work

and Maintenance of Records

Psychologists conducting research must create and maintain records in a manner

that allows for replication of the research design by the psychologist or others.

This includes an adequate description of recruitment procedures, documentation

of informed consent, relevant demographic characteristics of participants, data

collection procedures, materials or equipment, and data analysis strategies. Raw

data should be stored in a form accessible to analysis or reanalysis by the psychologist

or other competent professionals who seek to verify substantive claims

(see Standard 8.14, Sharing Research Data for Verification).

The number of years of retention of raw data for investigators will vary with

state law, federal regulations, and institutional policies. Federal regulations

on confidentiality limitations and proactively review written documents with parents

prior to sending them to the school. When these records are sent only to the

school psychologist, after review and when appropriate the school-employed psychologist

should consider returning the materials rather than let these become part

of the educational record.

Counseling Center staff and trainees should be aware that HIPAA confidentiality

protections only apply if a university training clinic provides services solely to nonstudents

and the clinic engages in billing or other electronic transactions.

When HIPAA does not apply, during informed consent students in counseling centers

should be made aware when billing records are considered part of the educational

record and other limits to confidentiality imposed by FERPA.

When it is appropriate to include mental health information in a student’s educational

record, psychologists must remain attentive to protection of copyrighted test

information (Standard 9.11, Maintaining Test Security).

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186——PART II ENFORCEABLE STANDARDS

(Office of Management and Budget Circular A-110) and PHS Grants Policy (NIH

Grants Policy Statement, revised October 2011) require that data generated

through federal support be maintained by institutions for at least 3 years following

the completion of the project and the filing of the final progress and financial

reports. The number of years may be longer if a patent is involved. Specific record

keeping requirements for IRBs include maintenance of copies of the scientific

proposal, the informed consent document, summaries of the project, financial

reports, and reports of injuries or other serious adverse events. Authors of articles

published in APA journals must have their raw data available for at least 5 years

after the date of publication (APA, 2010e).

Under Standard 6.01, principal investigators on federally funded grants must

also create and maintain accurate records of costs associated with the research,

including participant compensation, research assistant salaries, investigators’

percent effort working on the grant, equipment, travel, and other supplies necessary

to conduct the research. For federally funded projects, IRBs are subject to

federal grants compliance and oversight. For each grant, the IRB must account

for cost allocations/cost transfers, time and effort reporting, allowable grant

charges, and unobligated balances (see http://grants.nih.gov/grants/compliance/

compliance.htm).

6.02 Maintenance, Dissemination, and Disposal of

Confidential Records of Professional and Scientific Work

(a) Psychologists maintain confidentiality in creating, storing, accessing, transferring, and disposing

of records under their control, whether these are written, automated, or in any other medium.

(See also Standards 4.01, Maintaining Confidentiality, and 6.01, Documentation of Professional

and Scientific Work and Maintenance of Records.)

Standard 6.02 requires that psychologists protect the confidentiality of professional

or scientific information in all phases of record creation, maintenance, dissemination,

and disposal. The standard refers to confidential records or data in the form of written

and printed materials, automated scoring reports, audio and video recordings, Internet

websites or e-mails, company computer networks, storage on hard drives or disks, and

faxes. Steps that can be taken to protect confidentiality include (a) keeping records in

a secure place, (b) limiting access to staff or team members who must use the record

to competently perform their duties, (c) de-identifying records using code numbers or

other methods, and (d) disposing of tapes and other identifiable records when they are

no longer needed and their disposal is consistent with law.

Psychologists should be careful not to assume that their staff or employees of an

institution or company with which they work are familiar with confidentiality

requirements or appropriate confidentiality procedures. To the extent it is under

their control, they must take steps to ensure that confidential records are kept

secure from staff who do not have approved access. Consider the following example

of a violation of Standard 6.02a.

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Chapter 9 Standards on Record Keeping and Fees——187

Implications of HIPAA

HIPAA compliance is required whenever PHI is transmitted in electronic form

for health care claims, health plan premium payments, referral certification and

authorization, injury reports, health care payment and remittance advice, and

transfer of records to other professionals. HIPAA regulations require that client/

patient authorization to transfer records of PHI to third parties should be different

from and visually and organizationally separate from other permission forms,

include a statement that the client/patient may revoke authorization in writing, and

be signed and dated (45 CFR 164.508).

When transmitting PHI to other covered entities or others, psychologists must

insure its security in transit and protect it from unauthorized access, alteration,

deletion, and transmission (HIPAA Security Standards 45 CFR 160). Covered entities

are also expected to keep office doors locked when no one is inside, store patient

records in such a way that guests are unlikely to see PHI, and ensure for group

practices that terminated employees cease to have access to files.

(b) If confidential information concerning recipients of psychological services is entered

into databases or systems of records available to persons whose access has not been consented

to by the recipient, psychologists use coding or other techniques to avoid the inclusion of

personal identifiers.

Standard 6.02b draws attention to the need to take specific steps to protect

confidential records when these records are stored in record systems or databases

available to persons whose access has not been consented to by the recipient.

To comply with this standard, practitioner and research psychologists

storing data on institutional networks can use protected passwords, de-identify

information, and discuss with institutional staff responsible for network maintenance

and monitoring appropriate procedures for confidentiality protections.

Psychologists working in group practices should be aware of and comply with

HIPAA security rules governing office and other infrastructure PHI protections,

including access to offices, files, and secure transmission procedures (see the

section “Implications of HIPAA” under Standard 6.02a above). When applicable,

psychologists should identify limitations in efforts to protect confidentiality on

􀀴 A consulting psychologist was contracted to evaluate whether on-site day care centers

set up at the company’s offices in 10 states were fostering a positive organizational

climate. The psychologist conducted taped interviews with employees to find out

whether the day care centers had minimized their need to take days off from work for

child care and their satisfaction with the plan. Each month, she traveled to a company’s

office in a different city to conduct the interviews. As she left, she usually asked

one of the office secretaries to box up the tapes and ship them to the company’s main

headquarters.

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188——PART II ENFORCEABLE STANDARDS

databases and systems of records and inform clients/patients, organizational

clients, research participants, or others with whom they work about such limitations

(see also Standard 4.02c, Discussing the Limits of Confidentiality).

Need to Know: Electronic Health Records

New and unanticipated challenges to record keeping and security may arise as the wider

health care community transitions from practitioner control of paper files to electronic

health records (EHR)-based systems. As detailed by Drogin et al. (2010), psychologists

need to stay attuned to and more involved in EHR system development to address security

issues that may arise with increased client access to their electronic records, threats to

HIPAA security, and intermingling of mental health records with psychotherapy notes.

Psychologists Working With or in Organizations

For psychologists working in or consulting to organizations, record keeping

procedures may be governed by the legal relationship established between the psychologist

and the organization. In some instances, the physical records belong to

the organization and cannot be secured solely by the psychologist or leave the

organization’s premises. In other instances, individual consulting services, for

example, the records may belong to the psychologist. In either situation, to the

extent feasible, the psychologists are responsible for the appropriate documentation

and maintenance of the records and must clarify to organizations their obligations

under the Ethics Code if a conflict arises (see Standard 1.03, Conflicts Between

Ethics and Organizational Demands).

confidentiality of records and data in the event of psychologists’ withdrawal from positions or

practice. (See also Standards 3.12, Interruption of Psychological Services, and 10.09, Interruption

of Therapy.)

The obligation to maintain the confidentiality of professional or scientific

records includes advance planning for the secure transfer of such records in case

of planned or unplanned withdrawals from a position or practice because of job

termination, promotion, a new position, parental or family leave, retirement, illness,

or death. Information may be transferred in person, by mail or by fax,

through the Internet, or through private company networks. Psychologists planning

in advance for the transfer of PHI need to be aware of the DHHS Transaction

Rule requiring standard formatting of electronic patient records for health care

claims and other purposes.

Psychologists planning to transfer forensically relevant records should be familiar

with laws in their state governing the extent to which licensed psychologists’

privacy protections extends to their staff. Failure to take appropriate steps to protect

the confidentiality of records or data transfer would be a violation of Standard

6.02c. The following are three examples of such violations.

HMO

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Chapter 9 Standards on Record Keeping and Fees——189

6.03 Withholding Records for Nonpayment

Psychologists may not withhold records under their control that are requested and needed for a

client’s/patient’s emergency treatment solely because payment has not been received.

Psychologists, like other professionals, have the right to be paid for their services.

However, the ideal of nonmaleficence, to do no harm, articulated in Principle A:

Beneficence and Nonmaleficence, is a core value of the discipline that obligates

psychologists to provide informational assistance, if not doing so would jeopardize

the welfare of a current or former client/patient. Standard 6.03 prohibits psychologists

from withholding records needed for a client’s/patient’s emergency treatment

solely because payment for services has not been received. The term solely allows

the psychologist to withhold such records if disclosure is prohibited by law or, in

the psychologist’s judgment, release of records would cause substantial harm to the

client/patient or others.

The standard does not apply to nontreatment situations, such as when parents

who have not paid for a completed psychological assessment of their child request

the records for an application for special educational services. Similarly, the standard

does not apply to treatments that are not an emergency, such as when a therapy

client/patient who has not paid for services asks a psychologist to send

treatment records to a new therapist.

􀀴 A research psychologist who had conducted a 20-year large-scale longitudinal study

retired from her faculty position. She agreed to allow the university to keep her data

set for archival research by graduate students and other faculty. Among the records

that she donated to the university was the coding file linking subject numbers to the

names and contact information of participants.

􀀴 After a 2-year postdoctoral fellowship in neuropsychology at a university hospital, a

psychologist prepared to leave for a new position in a different state. The day before

he left, he met the new postdoctoral fellow assigned to his office space. The psychologist

apologized to the new fellow about leaving his patient records in the

unlocked office file cabinets. He told her that the records were important to ensure

continuity of care for patients that he had assessed but that the hospital administrators

had not gotten back to him about where the records should be moved. He asked

the new fellow to keep them in her office or to have one of the maintenance crew

move the files to a temporary place in the basement.

􀀴 A psychologist in independent practice was told by the HMO with which he had a

contract that it would not extend benefits for one of the psychologist’s clients unless

the psychologist provided the HMO with his psychotherapy notes. Knowing that his

client needed and wanted to continue therapy, the psychologist reluctantly complied

without getting written authorization from the client to release the notes. A week

later, he attended a professional workshop on HIPAA regulations and learned that not

only is a signed client/patient authorization required to release psychotherapy notes

but also managed care companies are prohibited from conditioning treatment benefits

on access to psychotherapy notes.

HMO

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190——PART II ENFORCEABLE STANDARDS

Emergency Treatment

The standard refers only to the provision of records for treatment and only when

emergency treatment is needed. For example, a client’s/patient’s therapy or assessment

records may be needed immediately to help other health professionals provide

appropriate emergency treatment for a client/patient in an acute state of mental

disorder such as a schizophrenic episode or a depression accompanied by suicidal

ideation. Records may also be required to help health professionals quickly determine

whether an incapacitating cognitive or language disorder is the result of an

injury, medical problem, or a symptom of a previous mental disorder. Under the

Ethics Code, psychologists are not required to obtain the client’s/patient’s consent to

release information if it is requested for emergency treatment (see Standard 4.05b,

Disclosures). Similarly, the HIPAA Privacy Rule permits disclosure of PHI without

patient authorization to avert a serious threat to health or safety (45 CFR 164.512[j]).

Control and Requests

For the standard to apply, two other criteria must be met. The records must be

under the psychologist’s control. For example, Standard 6.03 would not apply if the

health care system that a psychologist works for is legally responsible for the records

and the institution refuses to release the records because of nonpayment. The records

must also be requested, meaning that psychologists do not have to provide such

records if they simply learn that a client/patient is receiving emergency treatment.

Regulatory and Legal Caveats

The HIPAA Privacy Rule establishing the rights of clients/patients to receive their

PHI records does not distinguish between emergency and nonemergency requests,

nor does it consider failure to pay as a legitimate reason to refuse a patient request

to release records. Thus, although ethically permissible under Standard 6.03, withholding

records for nonpayment under nonemergency conditions may not be legally

permissible. Psychologists should also carefully review their contracts with HMOs to

establish whether providers retain the right to withhold client/patient treatment

records if the HMO has delayed or refused to reimburse for services.

6.04 Fees and Financial Arrangements

(a) As early as is feasible in a professional or scientific relationship, psychologists and recipients

of psychological services reach an agreement specifying compensation and billing arrangements.

An individual’s or organization’s decision to enter into a professional or scientific

relationship with a psychologist will depend in part on the costs and billing

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Chapter 9 Standards on Record Keeping and Fees——191

arrangements for the services. Failure to specify and agree on compensation and

billing arrangements can lead to mistrust or financial exploitation (Principle B:

Fidelity and Responsibility). According to Standard 6.04a, psychologists providing

counseling, therapy, assessment, consultation, forensic, scientific, or other services

must reach an agreement about compensation and billing with the service recipient

as early as is feasible in the professional or scientific relationship.

Specifying Compensation

In specifying compensation, psychologists must include a description of all reasonably

anticipated costs so that organizations, attorneys, or clients can make an

informed hiring decision. For organizational or research services, this might include

charges for telephone or other electronically mediated conversations; client, employee,

or participant interviews; library or computer research; statistical analysis; travel;

postage; or duplication. Psychologists arranging compensation for assessment services

should provide information about fees for test administration, scoring, interpretation,

and report writing. Forensic evaluators may bill for time spent reviewing case

materials for deposition or court testimony, briefing the retaining attorney on findings

(Barnett & Walfish, 2011). Financial agreements for therapy should include,

where appropriate, discussion of (a) payment schedules, fees for therapy sessions,

telephone or other electronically mediated sessions, sessions with family members or

significant others, charges for consultation with other professionals and appointment

cancellations, acknowledgment of third-party payor preauthorization requirements,

and copayment agreements and (b) whether costs may be covered by health insurance,

as well as time or cost limitations regarding third-party payors.

􀀴 A research psychologist agreed to provide expert testimony on developmental differences

in the effect of divorce and step-parenting on child and adolescent development.

The psychologist reached agreement with the attorney stipulating a flat fee for

reviewing the case material and writing a background paper relevant to her testimony.

After receiving compensation for this work, the psychologist sent the attorney a bill

for duplication, computer supplies, and telephone and book purchase costs with a

note saying that she would not be available to testify unless these costs were reimbursed

immediately.

Billing Arrangements

Standard 6.04a requires psychologists to reach an agreement about billing

arrangements as early as is feasible in the professional relationship. Psychologists

must notify and reach an agreement regarding when bills will be rendered and payments

expected, for example, weekly or monthly. Billing arrangements may also

include agreement on a series of scheduled prepayments or compensation for

HMO

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192——PART II ENFORCEABLE STANDARDS

different phases of the psychologist’s services. For organizational consulting and

forensic evaluation, psychologists are encouraged to develop a written financial

agreement clarifying all payment agreements before services are rendered (Barnett &

Walfish, 2011). For example, the American Psychological Association Insurance

Trust (APAIT) provides a sample forensic agreement that can be adapted to specific

forensic roles (http://www.apait.org/apait/download.aspx).

􀀵 An organizational psychologist hired by a hospital to conduct a quality improvement

study set up a payment schedule tied to completion of data collection, completion of

the first draft of the report, and completion of the final draft.

To avoid billing disputes that may later arise between couples or family members,

psychologists conducting couples therapy or child custody assessments may

wish to consider reaching an agreement in advance regarding which member of the

couple or which parent will assume responsibility for payments.

Timing

The use of the phrase “as early as is feasible” permits psychologists to delay finalizing

a financial arrangement to obtain additional information. For therapy this

may refer to the need for additional information about the client’s/patient’s service

needs or health care benefits. In addition, discussion of fees in the first session may

be clinically contraindicated if a new client/patient is experiencing a crisis needing

immediate therapeutic attention. In such situations, agreement on compensation

and billing must be finalized as soon as all information is available or the crisis has

subsided (see also Standard 10.01a, Informed Consent to Therapy).

􀀵 A series of consultations with different company executives was required before a

psychologist could develop a comprehensive plan for and pricing of services required.

􀀵 A psychologist was aware that a new patient’s HMO frequently failed to provide

timely feedback about the extent and limits of patient health care benefits. The psychologist

mentioned the possibility of this occurring during the initial consultation

with the patient and discussed delaying additional sessions until the extent of coverage

could be clarified.

􀀵 At his first session with a psychologist for treatment for alcoholism, the client was

obviously intoxicated, evidencing speech impairment and a lack of coherence in his

remarks. The psychologist addressed clinical issues with the client relevant to the

immediate situation and made an appointment with him to discuss fees and other

issues regarding therapy at a time when he would be sober.

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Chapter 9 Standards on Record Keeping and Fees——193

Contingent Fees

A contingent fee is typically defined as a fee to be paid only in the event of a

future occurrence. Psychologists should avoid contingent fees that have the potential

to impair objectivity and unduly influence their methods, activities, or reports

(see Standard 3.06, Conflict of Interest). In forensic contexts, psychologists should

avoid accepting contingent fees when the services delivered involve offering evidence

to a court or administrative body or affirmations or representations intended

to be helpful to a court or to be relied upon by third parties. Other promises of

future payment that might be considered contingent fees are those that are promised

depending on the outcome of the legal matter at hand, such as future proceeds

or settlement benefits (AP-LS Committee on the Revision of the Specialty

Guidelines for Forensic Psychology, 2010).

(b) Psychologists’ fee practices are consistent with law.

This standard specifically requires psychologists’ activities to be consistent with

relevant laws. To comply with Standard 6.04b, psychologists must be familiar with

and develop fee practices compatible with local, state, and federal laws governing

fee practices, including legal contracts with HMOs or other third-party insurers.

Health care fraud or the submission of false claims is open to legal censure and

actions, which can result in costly fines or imprisonment. It includes falsifying costs

of services, intentionally over-diagnosing mental health disorders, or omitting

information that might lead to denial of benefits. The following are examples of fee

practices violating this standard:

􀀴 An HMO agreed to pay a psychologist 80% of his standard $100 hourly fee. The psychologist

typically waived the $20 copayment for patients insured by this HMO. The

HMO eventually accused the psychologist of insurance fraud, noting that in reality, his

standard hourly fee for their insured patients had become $80.

􀀴 A single mother who had a minimum-wage job sought treatment for depression. She

informed the psychologist that because of her limited funds, she had purchased health

insurance for her 3-year-old daughter but not for herself. The psychologist reasoned

that her mental health would affect her child’s wellbeing and told her he would be

willing to bill the insurance company under the daughter’s policy.

􀀴 A client’s health insurer did not cover mental health services for emotional problems

associated with bereavement over the death of a spouse. The psychologist gave the

client a diagnosis of major depressive disorder when she submitted the insurance

form to gain coverage for sessions.

􀀴 The Medicaid system in the state in which a psychologist worked required professionals

to have a preliminary meeting with a child to provide an initial diagnostic

report that would then be used to request approval for a full battery of psychological

testing. The psychologist routinely wrote the preliminary report without interviewing

children to limit the loss of school time and to shorten the approval period.

HMO

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194——PART II ENFORCEABLE STANDARDS

This standard requires that psychologists provide clients/patients, organizational

clients, and others who will be charged for services an accurate statement of

the costs of the services that will be offered. For example, under Standard 6.04c,

psychologists are prohibited from the following:

􀀴 A psychologist charged a first-time fee when a client asked for a list of individuals to

whom the psychologist had released the client’s PHI over the past 2 years. The psychologist

was unaware that under HIPAA, each year clients/patients have the right

to receive one free accounting of all disclosures of PHI information made within the

previous 6 years.

Need to Know: Submitting

Claims for Telehealth Services

To date, Medicare and Medicaid and less than a quarter of states have enacted regulation

requiring insurance companies to pay for telehealth services; and the public

payors restrict reimbursement to certain areas (e.g., rural and other underserved settings).

When submitting claims, psychologists need to clearly identify the services as

using electronic media with specific codes provided by the insurers. Psychologists

should also check with federal or state insurance regulators to determine potential

differentials in reimbursement for in-person versus telehealth services (see Baker &

Bufka, 2011, for a detailed review of legal, regulatory, reimbursement, and ethical

issues in telehealth).

􀀴 Listing in advertisements, brochures, websites, or other public representations fees

lower than what the psychologist actually charges (see also Standards 5.01a,

Avoidance of False or Deceptive Statements, and 5.02, Statements by Others)

􀀴 Adding unnecessary tests to an assessment battery to raise the cost of services after

reaching an agreement about fees with the client/patient

􀀴 Failing to disclose expectable costs of secretarial assistance or time devoted to telephone

conversations, library reference work, or travel during fee negotiations for

consulting or forensic work

􀀴 Using “bait-and-switch” tactics, such as offering low rates to lure a client/patient into

therapy, only to raise the rates after a few sessions

􀀴 Inflating reports of hourly fees for noninsured patients to obtain a higher rate for

covered services when submitting a provider application to an HMO

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Chapter 9 Standards on Record Keeping and Fees——195

(d) If limitations to services can be anticipated because of limitations in financing, this is discussed

with the recipient of services as early as is feasible. (See also Standards 10.09, Interruption of

Therapy, and 10.10, Terminating Therapy.)

In some instances, financial limitations in providing services may be anticipated

at the beginning or during the course of a professional or scientific relationship.

This most frequently occurs when HMOs readily provide health care

professionals with their policies on the type of mental health services and number

of sessions that are covered by a client’s/patient’s health plan. When, in a

psychologist’s professional judgment, clients/patients will require more therapy

than their health plan covers, the psychologist must discuss this as early as is

feasible in the professional relationship. Such discussion enables clients/patients

to decide if they want to begin the treatment under the HMO’s limitations and

provides the psychologist the opportunity to inform clients/patients about other

financial arrangements that can be made to ensure continued care. Alternative

financial arrangements can include reduced fees, deferred payment, limited sessions,

or referral to lower cost services.

􀀴 A psychologist in independent practice had an initial consultation with a patient who

appeared to be suffering from obsessive–compulsive disorder. The psychologist was

aware that short-term treatments for this disorder have not proven effective. However,

the patient’s HMO would approve only 10 sessions. The psychologist told the patient that

she was confident that she could convince the HMO to extend payments after 10 sessions

and recommended they begin treatment. After 10 sessions, the HMO refused approval for

additional sessions, and the patient could not afford additional treatment on his own.

Standard 6.04d also applies to instances when, during the course of a contractual

agreement, organizational, consulting, forensic, or research psychologists become

aware that the actual costs of a project will exceed the agreed-on costs. As soon as

this becomes apparent, psychologists must discuss the limitations with the parties

with whom they are contracted.

􀀵 A consulting psychologist was aware that the hospital that hired him to conduct a

quality assurance study had a limited budget. His original proposal for the study

was well within this budget. As the study was getting started, the hospital became

involved in a lawsuit that required in-depth evaluation of practices that were only

of marginal interest in the original quality assurance study. The psychologist quickly

estimated the additional costs of examining these practices in depth and set up a

meeting to discuss limitations of the original proposal and its costs to handle the

hospital’s sudden needs.

HMO

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196——PART II ENFORCEABLE STANDARDS

(e) If the recipient of services does not pay for services as agreed, and if psychologists intend to

use collection agencies or legal measures to collect the fees, psychologists first inform the person

that such measures will be taken and provide that person an opportunity to make prompt payment.

(See also Standards 4.05, Disclosures; 6.03, Withholding Records for Nonpayment; and

10.01, Informed Consent to Therapy.)

Psychologists are permitted to use collection agencies or other legal measures

to obtain compensation when the recipient of services has not made agreed-on

payments. Before using such services, under Standard 6.04e, psychologists must

inform the client/patient or other service recipient that such measures will be

taken and provide that person an opportunity to make prompt payment. The

definition of prompt payment should be reasonable but need not extend beyond

a month depending on the length of time that payments have been delinquent. As

a rule of thumb, most businesses turn unpaid bills over to a collection agency after

60 to 90 days.

Need to Know: Third-Party Reimbursement

for Telehealth Services

Psychologists are increasingly turning to wireless devices, web-based video communications,

and other forms of electronic media as useful tools for scheduling and delivering

mental health care services. Third-party payors differ in the type of electronic

media–delivered services they will reimburse (Baker & Bufka, 2011). Consequently,

psychologists considering the use of telehealth tools with specific clients/patients

should determine the type and the extent to which the client’s/patient’s health care

insurer will cover services and discuss any limitations in reimbursements with the

client/patient as soon as feasible.

􀀵 During informed consent, a psychologist always informed clients/patients that his

fee policy was to be paid in full for services on a bimonthly basis, that bill collection

procedures would be initiated when clients/patients reached an accumulated debt

of the cost of six sessions, and that a letter alerting patients about billing concerns

would be mailed to them if billing accumulated at 4 weeks to give them time to

pay the bill.

Standard 6.04e applies to psychologists providing therapy, assessment, consultation,

forensic, and other services when the service recipient is an individual, couple,

or family. The standard does not apply when psychologists choose to use a collection

agency or legal measures to collect unpaid fees from attorneys, companies,

organizations, or institutions.

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Implications of HIPAA

Several HIPAA regulations are relevant to Standard 6.04e. First, HIPAA permits

covered entities to use and disclose PHI to carry out treatment, payment, or health

care operations without specific authorization from the patient (45 CFR 164.506).

Although specific requirements regarding consent were removed from the final

HIPAA Privacy Rule, clients/patients must be aware of the covered entity’s disclosure

policies. Thus, covered entities who want the option of using collection agencies

for nonpayment for health services must include this information in a Notice

of Privacy Practices given to the client/patient at the onset of services, and the

Notice must be a separate document from the consent materials (45 CFR 164.520).

Psychologists should also include this information in their informed consent procedures

(see Standards 4.02, Discussing the Limits of Confidentiality; 9.03,

Informed Consent in Assessments; and 10.01, Informed Consent to Therapy).

Collection agencies hired by a psychologist may be considered a “business associate”

under HIPAA (45 CFR 160.103). A business associate is an entity who acts on

behalf of a covered entity but not as an employee of the covered entity. An arrangement

with a business associate must ensure that the business associate, on behalf of

the covered entity, agrees to safeguard the use and disclosure of PHI in ways that

are HIPAA compliant (45 CFR 164.504[e]).

What to Disclose to Collection Agencies

HIPAA’s “minimum necessary” standard (45 CFR 164.502[b]), as well as

Standard 4.01, Maintaining Confidentiality, in the APA Ethics Code can be interpreted

as requiring psychologists to limit the information provided to collection

agencies to the minimum necessary to accomplish the intended purpose.

Information to such agencies should be limited to (a) the client’s/patient’s name,

(b) the dollar amount of the fee that is overdue, (c) the date of services for which

the unpaid fee was billed, and (d) the client’s/patient’s address, telephone number,

and other relevant contact information. Psychologists should never reveal a client’s/

patient’s diagnosis or reason for seeking services. In most instances, psychologists

do not need to mention the type of services provided (e.g., therapy) and can simply

inform the collection agency that the overdue bill is for “services provided.”

􀀴 A patient who had terminated therapy with a psychologist had failed to pay for sessions

during the last 2 months of treatment. After sending the former patient several

notices requesting payment and the psychologist’s intention to use a collection

agency if payment was not received, the psychologist turned the matter over to an

agency. During the course of treatment, the psychologist had observed signs of explosive

anger in the patient. Concerned that individuals at the collection agency might

place themselves in danger if they angered the patient, the psychologist informed the

head of the collection agency of the diagnostic reasons for these concerns.

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198——PART II ENFORCEABLE STANDARDS

6.05 Barter With Clients/Patients

Barter is the acceptance of goods, services, or other nonmonetary remuneration from clients/

patients in return for psychological services. Psychologists may barter only if (1) it is not clinically

contraindicated, and (2) the resulting arrangement is not exploitative. (See also Standards 3.05,

Multiple Relationships, and 6.04, Fees and Financial Arrangements.)

This standard applies when psychologists accept from clients/patients nonmonetary

remuneration for services. The issue of bartering often emerges in response to

a client’s/patient’s financial limitations or lack of affordable health insurance.

Providing services in return for bartered goods is ethically permissible in situations

when to not do so would deprive clients/patients of needed services or run counter

to community’s economic or cultural practices. Although barter is not a per se violation

of the Ethics Code, psychologists need to be cautious about accepting bartered

goods or services from clients/patients in lieu of monetary payments because such

arrangements have an inherent potential for client/patient harm, exploitation, and

unethical multiple relationships (Standard 3.05a, Multiple Relationships). For

example, it is often difficult to determine the extent to which a bartered good is

equivalent in price to the dollar amount of a psychologist’s fee, running the risk that

clients/patients will be exploited or the psychologist underpaid. Bartering clerical or

other (e.g., house painting, babysitting) services for psychological services risks creating

potentially harmful multiple relationships resulting from interactions with the

client/patient outside a professional role or loss of professional objectivity in reaction

to the quality of the client/patient bartered services.

Standard 6.05 specifically prohibits barter with clients/patients when it is clinically

contraindicated or exploitative. The following are an example of a potential

violation of this standard and an example of ethically permissible barter.

􀀴 A psychologist in independent practice in a wealthy suburban community saw clients

in an office attached to her home. One of her clients, a landscaper, noticed that her

driveway and landscaping in front of her home were in serious disrepair. He suggested

that instead of paying fees for 2 months, he would landscape her home. Although the

cost of the landscaping would be greater than the psychologist’s fees during this

period, the psychologist agreed. The client was unable to complete the job in the

2-month period, leading to increased tension during the therapy sessions.

􀀵 A school psychologist worked 2 days a week at an isolated Alaskan Native fishing community

providing parent and teacher consultations and behavior therapy for children

diagnosed with ADHD and other learning problems. During the year, an oil spill created

serious economic consequences for the village. It was estimated that it would take

2 months for normal fishing to resume. The tribal leader, on behalf of the parents and

school, asked the psychologist if she would be willing to take free room, board, office

space, and travel to the village donated by the tribe equivalent to her fees during this

period. The psychologist agreed and set up a time-limited remuneration contract

specifying the equivalent monetary value of the services. The psychologist reasoned

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Chapter 9 Standards on Record Keeping and Fees——199

6.06 Accuracy in Reports to

Payors and Funding Sources

In their reports to payors for services or sources of research funding, psychologists take reasonable

steps to ensure the accurate reporting of the nature of the service provided or research

conducted, the fees, charges, or payments, and where applicable, the identity of the provider, the

findings, and the diagnosis. (See also Standards 4.01, Maintaining Confidentiality; 4.04, Minimizing

Intrusions on Privacy; and 4.05, Disclosures.)

This standard requires accuracy in reports to payors and funding sources and

reflects the values of honesty and truthfulness articulated in Principle C: Integrity. The

standard applies when psychologists bill insurance companies for client/patient therapy

or assessments, charge companies for consulting fees or forensic clients for services,

or document grant-related research expenses. The phrase “take reasonable steps”

recognizes that in some instances, psychologists may have limited control over financial

reports sent to third-party payors (i.e., psychologists working in group practices or

in health delivery systems) or to funding sources (i.e., research psychologists working

in academic institutions through which reports to external funders must be made).

Research and Industrial–Organizational

and Forensic Services

Psychologists receiving research support from their institution, private foundations,

or federal programs must provide accurate reports of charges for and the

research-related purpose of equipment and supplies, travel, and payments to research

participants, investigators, and research assistants. Psychologists billing companies or

forensic clients for services should provide an accurate accounting of the number of

hours worked on the particular project, the nature of and work product produced

during those hours, and any other legitimate expenses (i.e., additional staff, travel,

and duplication or postage costs) associated with the work contracted for.

Therapy

Accurate Diagnosis

Psychologists conducting therapy must provide an accurate diagnosis to

third-party payors. Psychologists who provide an incorrect diagnosis to obtain

that barter in this case would be ethically permissible because the barter did not directly

affect her therapeutic relationships with the children or the parents or teachers with

whom she consulted, and the exchange was a fair rate that was not exploitative. In

addition, the psychologist’s agreement to barter demonstrated her recognition and

respect for the efforts and importance the tribe attributed to her services.

HMO

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200——PART II ENFORCEABLE STANDARDS

reimbursement from a client’s/patient’s health plan would be in violation of this

standard. In addition, such practices would represent insurance fraud and violation

of Standard 6.04b, Fees and Financial Arrangements.

Billing for Missed Appointments

Some psychologists have a policy of charging for sessions missed when a client/

patient cancels a therapy appointment. Health insurers will not reimburse these

charges because no mental health services were provided. In their report to thirdparty

payors, psychologists must clearly identify sessions for which charges are for

a client/patient cancellation. Psychologists must also make any missed-appointment

policies clear to clients/patients at the outset of the professional relationship

(Standards 6.04a, Fees and Financial Arrangements, and 10.01, Informed Consent

to Therapy).

Accurate Representation of Billing Practices

Some HMOs calculate reimbursement for provider services on a percentage

of the psychologist’s fee scale. Psychologists must provide these organizations

with an accurate representation of their billing practices for all clients/patients

for the period requested by the HMO, including use of a sliding-fee scale if relevant.

In some instances, licensed psychologists may supervise therapy or assessments

conducted by unlicensed trainees or employees. When reimbursement for

such therapy or assessment is sought from third-party payors, the licensed psychologist

must clearly identify the actual provider of the services. Readers may

wish to refer to Hot Topic “Managing the Ethics of Managed Care” at the end of

this chapter.

6.07 Referrals and Fees

When psychologists pay, receive payment from, or divide fees with another professional, other

than in an employer–employee relationship, the payment to each is based on the services provided

(clinical, consultative, administrative, or other) and is not based on the referral itself. (See

also Standard 3.09, Cooperation With Other Professionals.)

Psychologists often have pay arrangements with other mental health professionals.

These may include renting out office space, referring new clients/patients

to another psychologist when one’s own schedule is filled, assigning a client to a

member of a group practice, or contracted payment for collateral services provided

to a client/patient. Standard 6.07 is intended to protect the welfare of clients/

patients and the integrity of the profession by ensuring that payments between

practitioners are based on professional services rendered and in the best interest

of the client/patient.

HMO

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Chapter 9 Standards on Record Keeping and Fees——201

Prohibition Against Fee Splitting

Standard 6.07 is also meant to ensure that fees charged to clients/patients reflect

the services provided. A psychologist may divide fees with another professional

only if both have contributed to the service.

Referrals

One reason psychologists are sued is for improper referral (Bennett et al., 2006).

Standard 6.07 is meant to ensure that client/patient referrals among professionals are

based on the expertise of the professional to whom the referral is being made, as well as

the appropriateness of the service for the client/patient, and not on the basis of the referral

itself. Standard 6.07 prohibits psychologists from charging other professionals for

client/patient referrals or, conversely, from paying another professional for a referral.

Such payments place psychologists in a potential conflict of interest if the referral is

based on the financial remuneration rather than on the match between a psychologist’s

expertise and the needs of the client/patient (see Standard 3.06, Conflict of Interest).

The standard does not prohibit psychologists who are members of a psychotherapy

referral service from paying a percentage of a referred client’s/patient’s fee to support the

administrative costs of the service, including the intake interview, as long as (a) the service

follows a policy of making referrals only to those members who have expertise

appropriate to a client’s/patient’s treatment needs and (b) the costs of the administrative

and professional services are spread over the membership so that no individual psychologist

is treated as a preferred referral solely because of his or her financial contribution

to the service. However, psychologists need to be familiar with their state regulations

regarding kickbacks and fee splitting to ensure these activities are consistent with law.

􀀴 A group of psychologists started a mental health referral service. Referrals were

selected from a computerized list of psychologists’ fees and available office hours. The

group charged participating psychologists a first-time fee for each referral and a fee

for each subsequent session based on the patient’s monthly bill. This method of reimbursement

violated Standard 6.07 and their state laws prohibiting kickbacks and fee

splitting for both the referral service and the participating psychologists.

Need to Know: Fees and Group Practice

Unlike the mental health service referral practices described above, it is ethically acceptable

for a group practice to charge its employees a percentage of their client’s/patient’s

fee. This is because the employer (the group practice) is not referring but assigning a client/

patient to an employee, who in turn has a fiduciary responsibility to provide acceptable

services on the employer’s behalf (Woody, 2011).

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202——PART II ENFORCEABLE STANDARDS

􀀵 A clinical geropsychologist regularly consulted with a neurologist when conducting

cognitive assessments of patients with Parkinson’s disease and other neurological

disorders. The patient fee included the amount of money the psychologist paid the

neurologist for the consultation. These billing arrangements were described to the

patient or his or her legal guardian in advance, and the psychologist accurately

described the arrangement in billing statements to patients and third-party payors

(see Standards 6.06, Accuracy in Reports to Payors and Funding Sources; 9.03,

Informed Consent in Assessments; and 10.01, Informed Consent to Therapy).

Other Permissible Payments

The standard does not prohibit psychologists from (a) charging another psychologist

for office space, (b) paying professionals who are employees a percentage

of a client/patient fee, (c) paying an institution for referrals, or (d) having membership

in an HMO (Canter et al., 1994).

HOT TOPIC

Managing the Ethics of Managed Care

The primary function of HMOs and other forms of managed health care, such as MCOs, preferred provider

organizations, Medicare, and Medicaid, is to control health care costs while maintaining high-quality care.

HMOs seek to accomplish this by (a) identifying which health conditions will qualify for benefits, (b) determining

the manner and frequency in which services will be provided, (c) monitoring their delivery, and (d) regulating

distribution of monetary reimbursement. This is accomplished through forming contractual relationships

among insurers, providers, and clients/patients.

Ideally managed mental health should enhance accountability, treatment effectiveness, and quality assurance.

However, even when conducted properly, managed care plans raise a unique set of ethical challenges for psychologists.

This Hot Topic section highlights ethical pitfalls related to fees and financial arrangements under managed care.

Payment for Services

Practicing psychologists have different payment relationships with HMOs and other third-party insurers. Some

psychologists contract directly with an HMO and receive referrals from that company. Others bill the insurer

directly or bill the client/patient directly while providing the information necessary for the clients/patients to

receive reimbursement from the insurer. Irrespective of payment arrangements, psychologists are responsible for

fact finding about and communicating to clients/patients the nature of their HMO or other third-party coverage.

As soon as feasible, psychologists should inform clients/patients about the following (Acuff et al., 1999;

Standards 6.04, Fees and Financial Arrangements; 9.03, Informed Consent in Assessments; and 10.01, Informed

Consent to Therapy):

The insurer’s provisions related to the number of authorized sessions

The method and timing of utilization review

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Chapter 9 Standards on Record Keeping and Fees——203

The nature of the information required by the insurer to authorize services

The amount of reimbursement provided

The patient’s share of any expenses (co-payment or deduction)

The services that are covered or excluded

The responsibility for payment if the insurer determines that a particular service is not covered under

the patient’s plan

When a delay in the insurer determination regarding coverage and length of care presents a problem for

establishing a therapeutic relationship, psychologists should consider and discuss with clients/patients delaying

future sessions until benefits are determined.

Perverse Incentives

Clients/patients should receive the same quality of care no matter what type of insurance they may have

(Principle D: Justice; Shipman, Hooten, & Roa, 2011). Capitation is a specific cost containment model adopted

by a number of HMOs and government-sponsored health plans that sets outpatient mental health benefits at

a certain fixed price per client/patient. Capitation guarantees a provider with a fixed (capitated) amount of

dollars for each patient, irrespective of disorder or number of sessions. It is intended to incentivize practitioners

to provide the most cost-effective treatment by providing briefer sessions for clients/patients with less severe

disorders to allow for more sessions for individuals with severe disorders. In some states, it has been shown to

reduce mental health care costs by lowering utilization of high-cost inpatient services (Bloom et al., 2011).

While capitation offers psychologists greater flexibility in determining treatment modality and frequency of

sessions, it also establishes a financial incentive to keep sessions for all clients/patients to a minimum to

maximize profits (Berenson & Rich, 2010). Capitation thus runs the risk of becoming a “perverse incentive”

(Haas & Cummings, 1991) that places psychologists in a conflict of interest between patient care and their

financial gain (see Standard 3.06, Conflict of Interest). To avoid unintentionally downgrading services for financial

gain under capitation, Acuff et al. (1999) recommend that psychologists develop an internal monitoring

system for their practice to compare the length of care for patients in the capitated plans with those who are

in fee-for-service or other forms of coverage.

Diagnosing for Dollars

The American Psychiatric Association’s (2000) Diagnostic and Statistical Manual of Mental Disorders

(DSM) is the most widely used system for classifying mental health disorders in the United States (Seligman,

1999). Health insurers use the DSM classifications to determine criteria for coverage, length of treatment, and

treatment outcomes. They often deny insurance reimbursement for certain DSM classifications that are common

among clients/patients served by psychologists, including adjustment disorders, diagnostic codes that are

exclusive to DSM Axis II (Personality Disorders) and DSM V codes (Relational Problems and Other Conditions

That May Be a Focus of Clinical Attention; Braun & Cox, 2005).

Patients with diagnoses not covered by their insurer may not be able to pay for out-of-pocket costs. In

response, some psychologists may be tempted to “upcode” (over-diagnose) a disorder or exaggerate or

exclude relevant client symptoms to establish a diagnosis that meets an insurer’s benefits criteria. Upcoding

also occurs when a psychologist conducting couples or family counseling services not covered by a health plan

provides a false diagnosis for one spouse to obtain individual benefits to cover the joint counseling. Wylie

(1995) labeled these practices as diagnosing for dollars, and Rappo (2002) noted that this term adequately

describes diagnoses aimed at managing health costs rather than managing care.

Legal and Ethical Implications. “Upcoding” and other false diagnoses are illegal and unethical. Overdiagnosing

a client/patient to receive health care benefits is insurance fraud and thus a violation of Standard 6.04,

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204——PART II ENFORCEABLE STANDARDS

Fees and Financial Arrangements. It is also inconsistent with Principle C: Integrity, under which psychologists do

not engage in fraud, subterfuge, or intentional misrepresentation of fact. Moreover, it violates Standard 3.06,

Conflict of Interest, by allowing personal financial interests to interfere with psychologists’ objectivity.

Psychologists suspected of “upcoding” can be investigated and prosecuted under the False Claims

Amendments Act of 1986 (U.S. Code 31, Chapter 37, Subchapter III), which permits clients/patients to bring

cases against practitioners on behalf of the government for which a practitioner’s claim of ignorance is an

insufficient defense (see Braun & Cox, 2005). Psychologists found guilty of insurance fraud will most likely lose

their state license to practice, be required to pay substantial monetary penalties, and, in the case of criminal

charges based on defrauding Medicare or Medicaid, may spend time in prison.

Distributive Justice. Some psychologists defend over-diagnosis as an ethical choice that places the best

interests of the client over the “unjust” criteria used by health care management organizations to distribute

health care. This defense rests on the fallacious assumption that health care resources are unlimited. While it

is beyond the scope of this book to address political and economic influences on the availability and costs of

health care, health resources are finite. Therefore, when psychologists upcode a client’s/patient’s diagnosis to

receive reimbursement for services, they are further limiting the resources available for individuals who actually

have more serious disorders and, in the long run, potentially contributing to a rise in insurance costs to cover

the number of clients/patients who are meeting diagnostic criteria (Principle D: Justice).

Client/Patient Harm. Upcoding a diagnosis to gain health care benefits can lead to multiple foreseeable

harms (Principle A: Beneficence and Nonmaleficence; Standard 3.04, Avoiding Harm). First, the exaggerated

diagnosis becomes a permanent part of the client’s/patient’s health record and potentially could be categorized

as a “preexisting condition” that will form the basis of insurance denial or increased costs for the client/patient

in the future. Second, a false diagnosis can lead to inappropriate treatment decisions by the HMO or future

care providers that are iatrogenic for the client/patient and outside the psychologist’s control. Over-diagnoses

can also create social stigma and negatively affect clients’/patients’ assessment of their psychological wellbeing

and their responsiveness to therapy or contribute to a harmful self-fulfilling prophecy.

Colluding With Clients/Patients in Upcoding. Some psychologists erroneously believe that they should

involve clients in decisions regarding which diagnosis to submit to their health care insurer. Such actions compromise

the psychologist–client/patient relationship. First, it represents an abdication of the psychologist’s

fiduciary responsibility to arrive at a diagnosis and treatment plan that accurately reflects the client’s/patient’s

psychological problems (Principle B: Fidelity and Responsibility). It can thus set the stage for clients/patients to

lose faith in or mistrust the psychologist’s intent and ability to provide the best standard of care. Second, it

communicates to the client/patient that the psychologist believes that deception, false claims, and lies are

acceptable forms of achieving goals—a message inconsistent with the aims of therapy (Principle C: Integrity).

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205

CHAPTER 10

Standards on

Education and Training

7. Education and Training

7.01 Design of Education and Training Programs

Psychologists responsible for education and training programs take reasonable steps to ensure that the

programs are designed to provide the appropriate

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CHAPTER 6

Standards on

Human Relations

3. Human Relations

3.01 Unfair Discrimination

In their work-related activities, psychologists do not engage in unfair discrimination based on age,

gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability,

socioeconomic status, or any basis proscribed by law.

Psychologists respect the dignity and worth of all people and appropriately consider

the relevance of personal characteristics based on factors such as age, gender,

gender identity, race, ethnicity, culture, national origin, religion, sexual orientation,

disability, or socioeconomic status (Principle E: Respect for People’s Rights and

Dignity). Much of the work of psychologists entails making valid discriminating

judgments that best serve the people and organizations they work with and fulfilling

their ethical obligations as teachers, researchers, organizational consultants, and

practitioners. Standard 3.01 of the APA Ethics Code (APA, 2002b) does not prohibit

such discriminations.

􀀵 The graduate psychology faculty of a university used differences in standardized test

scores, undergraduate grades, and professionally related experience as selection criteria

for program admission.

􀀵 A research psychologist sampled individuals from specific age, gender, and cultural

groups to test a specific hypothesis relevant to these groups.

􀀵 An organizational psychologist working for a software company designed assessments

for employee screening and promotion to distinguish individuals with the

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Standard 3.01 does not require psychologists offering therapeutic assistance to

accept as clients/patients all individuals who request mental health services. Discerning

and prudent psychologists know the limitations of their competence and accept to

treat only those whom they can reasonably expect to help based on their education,

training, and experience (Striefel, 2007). Psychologists may also refuse to accept

clients/patients on the basis of individuals’ lack of commitment to the therapeutic

process, problems they have that fall outside the therapists’ area of competence, or their

perceived inability or unwillingness to pay for services (Knapp & VandeCreek, 2003).

Psychologists must, however, exercise reasonable judgment and precautions to

ensure that their work does not reflect personal or organizational biases or prejudices

that can lead to injustice (Principle D: Justice). For example, the American

Psychological Association’s (APA’s) Resolution on Religious, Religion-Based, and/or

Religion-Derived Prejudice (APA, 2007d) condemns prejudice and discrimination

against individuals or groups based on their religious or spiritual beliefs, practices,

adherence, or background.

Standard 3.01 prohibits psychologists from making unfair discriminations based

on the factors listed in the standard.

requisite information technology skills to perform tasks essential to the positions from

individuals not possessing these skills.

􀀵 A school psychologist considers factors such as age, English language proficiency, and

hearing or vision impairment when making educational placement recommendations.

􀀵 A family bereavement counselor working in an elder care unit of a hospital regularly

considered the extent to which factors associated with the families’ culture or religious

values should be considered in the treatment plan.

􀀵 A psychologist conducting couples therapy with gay partners worked with clients to

explore the potential effects of homophobia, relational ambiguity, and family support

on their relationship (Green & Mitchell, 2002).

􀀴 The director of a graduate program in psychology rejected a candidate for program

admission because the candidate indicated that he was a Muslim.

􀀴 A consulting psychologist agreed to a company’s request to develop pre-employment

procedures that would screen out applicants from Spanish-speaking cultures based on

the company’s presumption that the majority of such candidates would be undocumented

residents.

􀀴 A psychologist working in a Medicaid clinic decided not to include a cognitive component

in a behavioral treatment based solely on the psychologist’s belief that lowerincome

patients were incapable of responding to “talk therapies.”

􀀴 One partner of a gay couple who recently entered couple counseling called their psychologist

when he learned that he tested positive for the HIV virus. Although when

working with heterosexual couples the psychologist strongly encouraged clients to

inform their partners if they had a sexually transmitted disease, she did not believe such

an approach was necessary in this situation based on her erroneous assumption that

all gay men engaged in reckless and risky sexual behavior (see Palma & Iannelli, 2002).

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Chapter 6 Standards on Human Relations——93

Discrimination Proscribed by Law

Standard 3.01 prohibits psychologists from discriminating among individuals on

any basis proscribed by law. For example, industrial–organizational psychologists

need to be aware of nondiscrimination laws relevant to race, religion, and disability

that apply to companies for which they work (e.g., ADA, www.ada.gov; Title VII of

the Civil Rights Act of 1964, www.eeoc.gov/laws/statutes/titlevii.cfm, archive.eeoc

.gov/types/religion.html; Workforce Investment Act of 1998, www.doleta.gov/

usworkforce/wia/wialaw.txt). Psychologists conducting personnel performance

evaluations should avoid selecting tests developed to assess psychopathology (see

Karraker v. Rent-a-Center, 2005). In addition, under ADA (1990), disability-relevant

questions can only be asked of prospective employees after the employer has made

a conditional offer. In some instances, ADA laws for small businesses also apply to

psychologists in private practice, such as wheelchair accessibility. In addition,

HIPAA prohibits covered entities from discriminating against an individual for filing

a complaint, participating in a compliance review or hearing, or opposing an act or

practice that is unlawful under the regulation (45 CFR 164.530[g]).

3.02 Sexual Harassment

Psychologists do not engage in sexual harassment. Sexual harassment is sexual solicitation,

physical advances, or verbal or nonverbal conduct that is sexual in nature, that occurs in connection

with the psychologist’s activities or role as a psychologist, and that either (1) is unwelcome,

is offensive, or creates a hostile workplace or educational environment, and the psychologist

knows or is told this; or (2) is sufficiently severe or intense to be abusive to a reasonable person

in the context. Sexual harassment can consist of a single intense or severe act or of multiple

persistent or pervasive acts. (See also Standard 1.08, Unfair Discrimination Against Complainants

and Respondents.)

It is always wise for psychologists to be familiar with and comply with applicable

laws and institutional policies regarding sexual harassment. Laws on sexual

harassment vary across jurisdictions, are often complex, and change over time.

Standard 3.02 provides a clear definition of behaviors that are prohibited and considered

sexual harassment under the Ethics Code. When this definition establishes

a higher standard of conduct than required by law, psychologists must comply

with Standard 3.02.

According to Standard 3.02, sexual harassment can be verbal or nonverbal

solicitation, advances, or sexual conduct that occurs in connection with the psychologist’s

activities or role as a psychologist. The wording of the definition was

carefully crafted to prohibit sexual harassment without encouraging complaints

against psychologists whose poor judgments or behaviors do not rise to the level of

harassment. Thus, to meet the standard’s threshold for sexual harassment, behaviors

have to be either so severe or intense that a reasonable person would deem

them abusive in that context, or, regardless of intensity, the psychologist was aware

or had been told that the behaviors are unwelcome, offensive, or creating a hostile

workplace or educational environment.

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94——PART II ENFORCEABLE STANDARDS

For example, a senior faculty member who places an arm around a student’s

shoulder during a discussion or who tells an off-color sexual joke that offends a

number of junior faculty may not be in violation of this standard if such behavior

is uncharacteristic of the faculty member’s usual conduct, if a reasonable

person might interpret the behavior as inoffensive, and if there is reason to

assume the psychologist neither is aware of nor has been told the behavior is

offensive.

A hostile workplace or educational environment is one in which the sexual

language or behaviors of the psychologist impairs the ability of those who are the

target of the sexual harassment to conduct their work or participate in classroom

and educational experiences. The actions of the senior faculty member described

above might be considered sexual harassment if the psychologist’s behaviors

reflected a consistent pattern of sexual conduct during class or office hours, if

such behaviors had led students to withdraw from the psychologist’s class, or if

students or other faculty had repeatedly told the psychologist about the discomfort

produced.

􀀴 A senior psychologist at a test company sexually fondled a junior colleague during an

office party.

􀀴 During clinical supervision, a trainee had an emotional discussion with her female

supervisor about how her own experiences recognizing her lesbian sexual orientation

during adolescence were helping her counsel the gay and lesbian youths

she was working with. At the end of the session, the supervisor kissed the trainee

on the lips.

According to this standard, sexual harassment can also consist of a single intense

or severe act that would be considered abusive to a reasonable person.

A violation of this standard applies to all psychologists irrespective of the status,

sex, or sexual orientation of the psychologist or individual harassed.

3.03 Other Harassment

Psychologists do not knowingly engage in behavior that is harassing or demeaning to persons

with whom they interact in their work based on factors such as those persons’ age, gender, gender

identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language,

or socioeconomic status.

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Chapter 6 Standards on Human Relations——95

According to Principle E: Respect for People’s Rights and Dignity, psychologists

should eliminate from their work the effect of bias and prejudice based on factors

such as age, gender, gender identity, race, ethnicity, national origin, religion, sexual

orientation, disability, language, and socioeconomic status. Standard 3.03 prohibits

behaviors that draw on these categories to harass or demean individuals with

whom psychologists work, such as colleagues, students, research participants, or

employees. Behaviors in violation of this standard include ethnic slurs and negative

generalizations based on gender, sexual orientation, disability, or socioeconomic

status whose intention or outcome is lowering status or reputation.

The term knowingly reflects the fact that evolving societal sensitivity to language

and behaviors demeaning to different groups may result in psychologists unknowingly

acting in a pejorative manner. The term knowingly also reflects awareness that

interpretations of behaviors that are harassing or demeaning can often be subjective.

Thus, a violation of this standard rests on an objective evaluation that a psychologist

would have or should have been aware that his or her behavior would be

perceived as harassing or demeaning.

This standard does not prohibit psychologists from critical comments about

the work of students, colleagues, or others based on legitimate criteria. For

example, professors can inform, and often have a duty to inform, students that

their writing or clinical skills are below program standards or indicate when a

student’s classroom comment is incorrect or inappropriate. It is the responsibility

of employers or chairs of academic departments to critically review, report on,

and discuss both positive and negative evaluations of employees or faculty.

Similarly, the standard does not prohibit psychologists conducting assessment or

therapy from applying valid diagnostic classifications that a client/patient may

find offensive.

3.04 Avoiding Harm

Psychologists take reasonable steps to avoid harming their clients/patients, students, supervisees,

research participants, organizational clients, and others with whom they work, and to minimize

harm where it is foreseeable and unavoidable.

As articulated in Principle A: Beneficence and Nonmaleficence, psychologists

seek to safeguard the welfare of those with whom they work and avoid or minimize

harm when conflicts occur among professional obligations. In the rightly practiced

profession and science of psychology, harm is not always unethical or avoidable.

Legitimate activities that may lead to harm include (a) giving low grades to students

who perform poorly on exams; (b) providing a valid diagnosis that prevents a

client/patient from receiving disability insurance; (c) conducting personnel reviews

that lead to an individual’s termination of employment; (d) conducting a custody

evaluation in a case in which the judge determines one of the parents must relinquish

custodial rights; or (e) disclosing confidential information to protect the

physical welfare of a third party.

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96——PART II ENFORCEABLE STANDARDS

Steps for Avoiding Harm

Recognizing that such harms are not always avoidable or inappropriate,

Standard 3.04 requires psychologists to take reasonable steps to avoid harming

those with whom they interact in their professional and scientific roles and to

minimize harm where it is foreseeable and unavoidable.

These steps often include complying with other standards in the Ethics Code,

such as the following:

􀀵 Parents of a fourth-grade student wanted their child placed in a special education

class. After administering a complete battery of tests, the school psychologist’s

report indicated that the child’s responses did not meet established definitions for

learning disabilities and therefore did not meet the district’s criteria for such

placement.

􀀵 A forensic psychologist was asked to evaluate the mental status of a criminal

defendant who was asserting volitional insanity as a defense against liability in

his trial for manslaughter. The psychologist conducted a thorough evaluation

based on definitions of volitional insanity and irresistible impulse established by

the profession of psychology and by law. While the psychologist’s report noted

that the inmate had some problems with impulse control and emotional instability,

it also noted that these deficiencies did not meet the legal definition of volitional

that would bar prosecution (see also Hot Topic “Human Rights and

Psychologists’ Involvement in Assessments Related to Death Penalty Cases” in

Chapter 4).

􀀴 A psychologist conducted therapy over the Internet for clients/patients in a rural area

120 miles from her office. The psychologist had not developed a plan with each client/

patient for handling mental health crises. During a live video Internet session, a client

who had been struggling with bouts of depression showed the psychologist his gun

and said he was going outside to “blow his head off.” The psychologist did not have

the contact information of any local hospital, relative, or friend to send prompt emergency

assistance.

􀀴 A psychologist with prescription privileges prescribed a Food and Drug Administration

(FDA)-approved neuroenhancer to help a young adult patient suffering from performance

anxiety associated with his responsibilities as quarterback for his college varsity

football team. The psychologist failed to discuss the importance of gradual reduction in

dosage, and she was dismayed to learn that her patient had been hospitalized after he

abruptly discontinued the medication when the football season ended (APA, 2011a;

McCrickerd, 2010; I. Singh & Kelleher, 2010).

􀀴 Consistent with Standard 10.10a, Terminating Treatment, a psychologist treating a

client/patient with a diagnosis of borderline disorder terminated therapy when she

realized the client/patient had formed an iatrogenic attachment to her that was clearly

interfering with any benefits that could be derived from the treatment. However, her

failure to provide appropriate pretermination counseling and referrals contributed to

the client’s/patient’s emergency hospitalization for suicidal risk (Standard 10.10c,

Terminating Treatment).

HMO

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Chapter 6 Standards on Human Relations——97

Is Use of Aversion Therapies Unethical?

Aversion therapy involves the repeated association of a maladaptive behavior or

cognition with an aversive stimulus (e.g., electric shock, unpleasant images, nausea)

to eliminate pleasant associations or introduce negative associations with the undesirable

behavior. Aversion therapies have proved promising in treatments of drug

cravings, alcoholism, and pica (Bordnick, Elkins, Orr, Walters, & Thyer, 2004;

Ferreri, Tamm, & Wier, 2006; Thurber, 1985) and have been used with questionable

effectiveness for pedophilia (Hall & Hall, 2007). It is beyond the purview of this

volume to review literature evaluating the clinical efficacy of aversion therapies for

different disorders. However, even with evidence of clinical efficacy, aversion therapies

have and will continue to require ethical deliberation because they purposely

subject clients/patients to physical and emotional discomfort and distress. In so

doing, they raise the fundamental moral issue of balancing doing good against

doing no harm (Principle A: Beneficence and Nonmaleficence).

Psychologists should consider the following questions before engaging in aversion

therapy:

Have all empirically and clinically validated alternative therapeutic approaches

been attempted?

Is there empirical evidence that the aversive therapeutic approach has demonstrated

effectiveness with individuals who are similar to the client/patient in

mental health disorder, age, physical health, and other relevant factors?

(Standard 2.04, Bases for Scientific and Professional Judgments)

􀀵 Clarifying course requirements and establishing a timely and specific process for providing

feedback to students (Standard 7.06, Assessing Student and Supervisee Performance)

􀀵 Selecting and using valid and reliable assessment techniques appropriate to the nature

of the problem and characteristics of the testee to avoid misdiagnosis and inappropriate

services (Standards 9.01, Bases for Assessments, and 9.02, Use of Assessments)

􀀵 When appropriate, providing information beforehand to employees and others who

may be directly affected by a psychologist’s services to an organization (Standard 3.11,

Psychological Services Delivered To or Through Organizations)

􀀵 Acquiring adequate knowledge of relevant judicial or administrative rules prior to

performing forensic roles to avoid violating the legal rights of individuals involved in

litigation (Standard 2.01f, Boundaries of Competence)

􀀵 Taking steps to minimize harm when, during debriefing, a psychologist becomes aware

of participant distress created by the research procedure (Standard 8.08c, Debriefing)

􀀵 Becoming familiar with local social service, medical, and legal resources for clients/

patients and third parties who will be affected if a psychologist is ethically or legally

compelled to report child abuse, suicide risk, elder abuse, or intent to do physical harm

to another individual (Standard 4.05b, Disclosures)

􀀵 Monitoring patient’s physiological status when prescribing medications (with legal

prescribing authority), particularly when there is a physical condition that might complicate

the response to psychotropic medication or predispose a patient to experience

an adverse reaction (APA, 2011a).

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98——PART II ENFORCEABLE STANDARDS

To what extent is the behavior endangering the life or seriously compromising

the well-being of the client/patient?

For this particular patient, will the discomfort and distress of the aversive

treatment outweigh its potential positive effects?

To what extent is the urgency defined by the needs of third parties rather than

the client/patient? (Standards 3.05, Multiple Relationships; 3.07, Third-Party

Requests for Services; and 3.08, Exploitative Relationships)

Am I competent to administer the aversive treatment? (Standards 2.01a,

Boundaries of Competence, and 2.05, Delegation of Work to Others)

If aversive treatment is the only remaining option to best serve the needs of

the client/patient, how can harm be minimized?

Have I established appropriate monitoring procedures and termination criteria?

􀀵 Prescribing psychologists trained in addiction treatments opened a group practice to

provide assessment and individual and group therapy for substance abuse and comorbid

disorders. Occasionally, some clients who were long-term cocaine users could not

overcome their cravings despite positive responses to therapy. In such cases, the team

would offer the client a chemical aversion therapy with empirical evidence of treatment

efficacy. The therapy was supervised by a member of the team who was a prescribing

psychologist and who had acquired additional training in this technique (see

also Standard 2.01, Competence).

􀀵 Prior to initiating the aversion therapy, clients/patients were required to undergo a

physical examination by a physician to rule out those for whom the treatment posed

a potential medical risk. The treatment consisted of drinking a saltwater solution

containing a chemical that would induce nausea. Saltwater was used to avoid creating

a negative association with water. As soon as the client began to feel nauseated,

he or she was instructed to ingest a placebo form of crack cocaine using drug paraphernalia.

A bucket was available for vomiting. Patients were monitored by a physician

assistant and the prescribing psychologist during the process and recovery for

any medical or iatrogenic psychological side effects (Standard 3.09, Cooperation With

Other Professionals). Following the recommended minimum number of sessions,

patients continued in individual psychotherapy, and positive and negative reactions to

the aversion therapy continued to be monitored (see Bordnick et al., 2004).

Need to Know: When HMOs

Refuse to Extend Coverage

When health maintenance organizations refuse psychologists’ request to extend coverage for

clients/patients whose reimbursement quotas have been reached, psychologists may be in

violation of Standard 3.04 if they (a) did not take reasonable steps at the outset of therapy to

estimate and communicate to patients and their insurance company the number of sessions

anticipated, (b) did not familiarize themselves with the insurers’ policy, (c) recognized a need

for continuing treatment but did not communicate with insurers in an adequate or timely

fashion, or (d) were unprepared to handle client/patient response to termination of services.

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Chapter 6 Standards on Human Relations——99

Often, violation of Standard 3.04 will occur in connection with the violation of

other standards in this code that detail the actions required to perform psychological

activities in an ethically responsible manner. For example:

􀀴 Providing testimony on the poor parenting skills of an individual whom the psychologist

has never personally examined that contributed to that individual’s loss of child

custody (Standard 9.01b, Bases for Assessments)

􀀴 Engaging in a sexual relationship with a current therapy client/patient that was a

factor leading to the breakup of the client’s/patient’s marriage (Standard 10.05,

Sexual Intimacies With Current Therapy Clients/Patients)

􀀴 Asking students to relate their personal experience in psychotherapy to past and current

theories on mental health treatment when this requirement was not stipulated in

admissions or program materials, causing some students to drop out of the program

(Standard 7.04, Student Disclosure of Personal Information)

􀀴 Deceiving a research participant about procedures that the investigator expected

would cause some physical pain (Standard 8.07b, Deception in Research)

􀀴 Invalidating the life experience of clients from diverse cultural backgrounds by defining

their cultural values or behaviors as deviant or pathological and denying them culturally

appropriate care (D. W. Sue & Sue, 2003; Standard 2.01b, Boundaries of Competence).

Some contexts require more stringent protections against harm. For example,

psychologists working within institutions that use seclusion or physical restraint

techniques to treat violent episodes or other potentially injurious patient behaviors

must ensure that these extreme methods are employed only upon evidence of their

effectiveness, when other treatment alternatives have failed, and when the use of

such techniques is in the best interest of the patient and not for punishment, for

staff convenience or anxiety, or to reduce costs (Jerome, 1998).

􀀴 The director of psychological services for a children’s state psychiatric inpatient ward

approved the employment of time-out procedures to discipline patients who were disruptive

during educational classes. A special room was set up for this purpose. The director

did not, however, set guidelines for how the time-out procedure should be implemented.

For example, he failed to set limits on the length of time a child could be kept in the room

and not require staff monitoring, did not ensure the room was protected against fire

hazard, and did not develop policies that would permit patients to leave the room for

appropriate reasons. The director was appalled to learn that staff had not monitored

a 7-year-old who was kept in the room for over an hour and was discovered crying and

self-soiled (see, e.g., Dickens v. Johnson County Board of Education, 1987; Goss v. Lopez,

1975; Hayes v. Unified School District, 1989; Yell, 1994).

Psychotherapy and Counseling Harms

Psychologists should also be aware of psychotherapies or counseling techniques

that may cause harm (Barlow, 2010). If psychological interventions are powerful

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100——PART II ENFORCEABLE STANDARDS

enough to improve mental health, it follows that they can be equally effective in worsening

it. In the normative practice of mental health treatment, the diversity of patient/

client mental health needs and the fluid nature of differential diagnosis will mean that

some therapeutic approaches will fail to help alleviate a mental health problem. In such

circumstances, psychologists will turn to other techniques, seek consultation, or offer

an appropriate referral. In other circumstances, negative symptoms are expected to

increase then subside during the natural course of evidence-based treatment (e.g.,

exposure therapy). When treating naturally deteriorating conditions (e.g., Alzheimer’s

disease), a worsening of symptoms does not necessarily indicate treatment harms

(Dimidjian & Hollon, 2010). By contrast, harmful psychotherapies are defined as those

that produce outcomes worse than what would have occurred without treatment

(Dimidjian & Hollon, 2010; Lilienfeld, 2007). Such harmful effects are easiest to detect

for mental health problems whose natural course is constant. In all these circumstances,

failure to terminate treatment when it becomes clear that continuation would

be harmful is a violation of Standard 3.04 and Standard 10.10a, Terminating Therapy.

Need to Know: How to Detect Harm

in Psychotherapy and Counseling

Psychologists should be aware of the evolving body of knowledge on potential contributors

to the harmful effects of psychotherapy and keep in mind the following suggestions

drawn from Beutler, Blatt, Alimohamed, Levy, and Angtuaco (2006), Castonguay, Boswell,

Constantino, Goldfried, and Hill (2010), and Lilienfeld (2007):

Obtain training in and keep up to date on the flexible use of interventions and

treatment alternatives to avoid premature use of clinical interpretations, rigid theoretical

frameworks, and singular treatment modalities.

Be familiar with the degree to which each client/patient and treatment setting match

those reported for a specific EBP and look for multiple knowledge sources as support

for different approaches (readers may also want to refer to the Need to Know section

on “Navigating the Online Search for Evidence-Based Practices” in Chapter 5).

Monitor change suggesting client/patient deterioration or lack of improvement;

continuously evaluate what works and what interferes with positive change.

Attend to treatment-relevant characteristics such as culture, sexual orientation,

religious beliefs, and disabilities and be aware of the possibility of over- or underdiagnosing

these clients’/patients’ mental health needs.

Carefully attend to client’s/patient’s disclosures of frustration with treatment and

use the information self-critically to evaluate the need to modify diagnosis, adjust

treatment strategy, or strengthen relational factors that may be jeopardizing the

therapeutic alliance.

Equipoise and Randomized Clinical Trials

Important questions of treatment efficacy and effectiveness driving the conduct

of randomized clinical trials (RCTs) for mental health treatments raise, by their very

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Chapter 6 Standards on Human Relations——101

nature, the possibility that some participants will fail to respond to experimental

treatment conditions or experience a decline in mental health during the trial. To

comply with Standard 3.04, research psychologists should develop procedures to

identify and address such possibilities. Such steps can include (a) scientifically and

clinically informed inclusion and exclusion criteria for patient participation, (b) the

establishment of a data safety monitoring board to evaluate unanticipated risks that

may emerge during a clinical trial, and (c) prior to the initiation of the research,

establishing criteria based on anticipated risks for when a trial should be stopped to

protect the welfare of participants. For additional information on guidance from the

Office of Human Research Protections, readers can refer to http://www.hhs.gov/

ohrp/policy/advevntguid.html.

􀀵 There is professional and scientific disagreement over the risks and benefits of

prescribing methylphenidate (e.g., brand name Ritalin) for treatment of attentiondeficit/

hyperactivity disorder (ADHD) in children less than 6 years of age. An interdisciplinary

team of behavioral and prescribing psychologists sought to empirically

test the advantage of adding psychopharmaceutical treatment to CBT for 3- to

5-year-old children previously diagnosed with ADHD. To avoid unnecessarily exposing

children to the potential side effects of medication, the team decided that preschoolers

would first participate in a multi-week parent training and behavioral

treatment program and that only those children whose symptoms did not significantly

improve with the behavioral intervention would continue on to the medication

clinical trial.

3.05 Multiple Relationships

(a) A multiple relationship occurs when a psychologist is in a professional role with a person and

(1) at the same time is in another role with the same person, (2) at the same time is in a relationship

with a person closely associated with or related to the person with whom the psychologist

has the professional relationship, or (3) promises to enter into another relationship in the future

with the person or a person closely associated with or related to the person. A psychologist

refrains from entering into a multiple relationship if the multiple relationship could reasonably be

expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his

or her functions as a psychologist, or otherwise risks exploitation or harm to the person with

whom the professional relationship exists.

Multiple relationships that would not reasonably be expected to cause impairment or risk

exploitation or harm are not unethical.

Individual psychologists may perform a variety of roles. For example, during

the course of a year, a psychologist might see clients/patients in private practice,

teach at a university, provide consultation services to an organization, and conduct

research. In some instances, these multiple roles will involve the same person or

persons who have a close relationship with one another and may be concurrent or

sequential.

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102——PART II ENFORCEABLE STANDARDS

Not All Multiple Relationships Are Unethical

Multiple relationships that would not reasonably be expected to cause impairment

or risk exploitation or harm are not unethical. For example, it is not unethical

for psychologists to serve as clinical supervisors or dissertation mentors for students

enrolled in one of their graduate classes because supervision, mentoring, and

teaching are all educational roles.

Standard 3.05 does not prohibit attendance at a client’s/patient’s, student’s,

employee’s, or employer’s family funeral, wedding, or graduation; the participation

of a psychologist’s child in an athletic team coached by a client/patient; gift giving

or receiving with those with whom one has a professional role; or entering into a

social relationship with a colleague as long as these relationships would not reasonably

be expected to lead to role impairment, exploitation, or harm. Incidental

encounters with clients/patients at religious services, school events, restaurants,

health clubs, or similar places are also not unethical as long as psychologists react

to these encounters in a professional manner. Nonetheless, psychologists should

always consider whether the particular nature of a professional relationship might

lead to a client’s/patient’s misperceptions regarding an encounter. If so, it is advisable

to keep a record of such encounters. For example:

􀀵 A client with a fluctuating sense of reality coupled with strong romantic transference

feelings for a treating psychologist misinterpreted two incidental encounters with his

psychologist as planned romantic meetings. The client subsequently raised these incidents

in a sexual misconduct complaint against the psychologist. The psychologist’s

recorded notes, made immediately following each encounter, were effective evidence

against the invalid accusations.

Posttermination Nonsexual Relationships

The standard does not have an absolute prohibition against posttermination

nonsexual relationships with persons with whom psychologists have had a previous

professional relationship. However, such relationships are prohibited if the

posttermination relationship was promised during the course of the original

relationship or if the individual was exploited or harmed by the intent to have the

posttermination relationship. Psychologists should be aware that posttermination

relationships can become problematic when personal knowledge acquired

during the professional relationship becomes relevant to the new relationship

(see S. K. Anderson & Kitchener, 1996; Sommers-Flanagan, 2012).

􀀵 A psychologist in independent practice abruptly terminated therapy with a patient

who was an editor at a large publishing company so that the patient could review a

book manuscript that the psychologist had submitted to the company.

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Chapter 6 Standards on Human Relations——103

Clients in Individual and Group Therapy

In most instances, treating clients/patients concurrently in individual and

group therapy does not represent a multiple relationship because the practitioner

is working in a therapeutic role in both contexts (R. E. Taylor & Gazda, 1991), and

Standard 3.05 does not prohibit such practice. Psychologists providing individual

and group therapy to the same clients/patients should consider instituting special

protections against inadvertently revealing to a therapy group information shared

by a client/patient in individual sessions. As in all types of professional practice,

psychologists should avoid recommending an additional form of therapy based on

the psychologist’s financial interests rather than the client’s/patient’s mental health

needs (Knauss & Knauss, 2012; Standard 3.06, Conflict of Interest).

Need to Know: Ethical “Hot Spots”

of Combined Therapy

Brabender and Fallon (2009) have identified ethical “hot spots” of combined therapy that

should be addressed at the outset of plans to engage clients/patients in individual and

group therapy. First, clients/patients should know that they have a choice in being offered

an additional therapy beyond what they expected, and their concerns about costs in time

and money should be respected and discussed (Standard 10.01, Informed Consent to

Therapy; 10.03, Group Therapy). Second, the psychologists should describe how private

information disclosed in individual therapy will be protected from transfer during group

sessions (Standard 4.02, Discussing the Limits of Confidentiality). Finally, psychologists

should explain their policies on client/patient decisions to choose to terminate one of the

treatment modalities (Standard 10.10a, Terminating Therapy).

Judging the Ethicality of Multiple Roles

Several authors have provided helpful decision-making models for judging

whether a multiple relationship may place the psychologist in violation of Standard

3.04 (Brownlee, 1996; Gottlieb, 1993; Oberlander & Barnett, 2005; Younggren &

Gottlieb, 2004). The majority looks at multiple relationships in terms of a continuum

of risk. From these models, the ethical appropriateness of a multiple relationship

becomes increasingly questionable with

increased incompatibility in role functions and objectives;

the greater power or prestige the psychologist has over the person with whom

there is a multiple role;

the greater the intimacy called for in the roles;

the longer the role relationships are anticipated to last;

the more vulnerable the client/patient, student, supervisee, or other subordinate

is to harm; and

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104——PART II ENFORCEABLE STANDARDS

the extent to which engaging in the multiple relationship meets the needs of

the psychologist rather than the needs of the client/patient.

Potentially Unethical Multiple Relationships

Entering Into Another Role

Psychologists may encounter situations in which the opportunity to enter a new

relationship emerges with a person with whom they already have an established

professional role. The following examples illustrate multiple relationships that,

with rare exception, would be prohibited by Standard 3.05a because each situation

could reasonably be expected to impair psychologists’ ability to competently and

objectively perform their roles or lead to exploitation or harm.

􀀴 A psychologist agreed to see a student in the psychologist’s introductory psychology

course for brief private counseling for test anxiety. At the end of the semester, to avoid

jeopardizing the student’s growing academic self-confidence, the psychologist refrained

from giving the student a legitimate low grade for poor class performance. The psychologist

should have anticipated that the multiple relationship could impair her objectivity and

effectiveness as a teacher and create an unfair grading environment for the rest of the class.

􀀴 A company hired a psychologist for consultation on how to prepare employees for a

shift in management anticipated by the failing mental health of the chief executive

officer (CEO). A few months later, the psychologist agreed to a request by the board

of directors to counsel the CEO about retiring. The CEO did not want to retire and told

the psychologist about the coercive tactics used by the board. The psychologist realized

too late that this second role undermined both treatment and consultation

effectiveness because the counseling role played by the psychologist would be viewed

as either exploitative by the CEO or as disloyal by the board of directors.

􀀴 A school psychologist whose responsibilities in the school district included discussing

with parents the results of their children’s psychoeducational assessments regularly

recommended to parents that they bring their children to his private practice for

consultation and possible therapy.

􀀴 As part of their final class assignment, a psychologist required all students in her

undergraduate psychology class to participate in a federally funded research study

that she was conducting on college student drinking behaviors.

􀀴 A psychologist treating an inmate for anxiety disorder in a correctional facility agreed

with a request by the prison administrator to serve on a panel determining the

inmate’s parole eligibility (Anno, 2001).

􀀴 A graduate student interning at an inpatient psychiatric hospital asked her patients if

they would agree to participate in her dissertation research.

􀀴 An applied developmental psychologist conducting interview research on moral

development and adolescent health risk behaviors, often found herself giving advice

to adolescent female participants who asked for her help during the interviews.

Forensic Roles

Forensic psychologists may be called upon for a variety of assessment roles that

differ in their goals and responsibilities from those of treating psychologists.

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Chapter 6 Standards on Human Relations——105

Whereas the responsibility of the treating psychologist is to help clients/patients

achieve mental health, the responsibility of forensic psychologists serving as experts

for the court, the defense, or plaintiff is to provide objective information to assist

the finder of facts in legal determinations. In most instances, psychologists who take

on both roles concurrently or sequentially will be in violation of Standard 3.05a.

For example, in the treatment context, the format, information sought, and

psychologist–client/patient relationship are guided by the psychologist’s professional

evaluation of client/patient needs. Information obtained in a standardized or

unstructured manner or in response to practitioner empathy and other elements of

the therapeutic alliance is a legitimate means of meeting treatment goals.

However, when mixed with the forensic role, the subjective nature of such inquiries

and the selectivity of information obtained impair the psychologist’s objectivity

and thus ability to fulfill forensic responsibilities. Moreover, the conflicting objectives

of the treating and forensic roles will be confusing and potentially intimidating to

clients/patients, thereby undermining the psychologist’s effectiveness in functioning

under either role. Gottlieb and Coleman (2012) advise forensic psychologists to play

only one role in legal matters and to notify parties if a role change is contemplated.

􀀴 A forensic psychologist was hired by the court to conduct a psychological evaluation

for a probation hearing of a man serving a jail sentence for spousal abuse. At the end

of the evaluation, the psychologist suggested that if the inmate were released, he and

his wife should consider seeing her for couple’s therapy.

Bush et al. (2006) suggest that one potential exception to multiple relationships

in forensic contexts may be seen in psychologists who transition from the role of

forensic evaluator to trial consultant. For example, in some contexts it might be

ethically permissible for a psychologist originally retained by a defense attorney to

evaluate a client to also perform consultative services to the attorney regarding the

testimony of other psychologists during a trial if (a) the psychologist provided

only an oral report on his or her diagnostic impressions and (b) the psychologist

would not be called on to provide court testimony. Psychologists should, however,

approach such a multiple relationship with caution if, by ingratiating themselves

with the attorney, they intentionally or unintentionally bias their evaluation or

otherwise violate Standard 3.05a, Multiple Relationships, or 3.06, Conflict of Interest.

(For additional discussion of the role of forensic experts, see the Hot Topics in

Chapters 8 and 12 on psychologists providing testimony in courts.)

Personal–Professional Boundary Crossings

Involving Clients/Patients, Students,

Research Participants, and Subordinates

Boundaries serve to support the effectiveness of psychologists’ work and create

a safe place for clients/patients, students, employees, and other subordinates to

benefit from the psychologists’ services (Burian & Slimp, 2000; Russell & Peterson,

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106——PART II ENFORCEABLE STANDARDS

1998). Boundaries protect against a blurring of personal and professional domains

that could jeopardize psychologists’ objectivity and confidence of those with whom

they work that psychologists will act in their best interests. Unethical multiple relationships

often emerge after psychologists have engaged in a pattern that “progresses

from apparently benign and perhaps well-intended boundary crossings to

increasingly intrusive and harmful boundary violations and multiple relationships”

(Oberlander & Barnett, 2005, p. 51). Boundary crossings can thus place psychologists

on a slippery slope leading to ethical misconduct (Gutheil & Gabbard, 1993;

Norris, Gutheil, & Strasburger, 2003; Sommers-Flanagan, 2012).

Clients/patients, students, research participants, and supervisees have less experience,

knowledge, and power compared with psychologists providing assessment, treatment,

teaching, mentoring, or supervision. Consequently, they are unlikely to recognize

inappropriate boundary crossings or to express their concerns. It is the psychologist’s

responsibility to monitor and ensure appropriate boundaries between professional and

personal communications and relationships (Gottlieb, Robinson, & Younggren, 2007).

Sharing aspects of their personal history or current reactions to a situation with

those they work with is not unethical if psychologists limit these communications

to meet the therapeutic, educational, or supervisory needs of those they serve.

􀀵 A graduate student expressed to his dissertation mentor his feelings of inadequacy

and frustration upon learning that a manuscript he had submitted for publication was

rejected. The mentor described how she often reacted similarly when first receiving

such information but framed this disclosure within a “lesson” for the student on rising

above the initial emotion to objectively reflect on the review and improve his chances

of having a revised manuscript accepted.

􀀵 A psychologist in private practice was providing CBT to help a client conquer feelings

of inadequacy and panic attacks that were interfering with her desired career

advancement. After several sessions, the psychologist realized that the client’s distorted

belief regarding the ease with which other people and the psychologist, in

particular, attained their career goals was interfering with the effectiveness of the

treatment. The psychologist shared with the client a brief personal story regarding

how he experienced and reacted to a career obstacle, limiting the disclosure to elements

the client could use in framing her own career difficulties.

Boundary crossings can become boundary violations when psychologists share personal

information with clients/patients, students, or employees to satisfy their own needs.

􀀴 A psychologist repeatedly confided to his graduate research assistant about the economic

strains his marriage was placing on his personal and professional life. After

several weeks, the graduate student began to pay for the psychologist’s lunches when

they were delivered to the office.

􀀴 A psychologist providing services at a college counseling center was having difficulties

with her own college-aged son’s drinking habits. She began to share her concerns

about her son with her clients and sometimes asked their advice.

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Chapter 6 Standards on Human Relations——107

Research

Boundary crossings can also lead to bidirectional coercion, exploitation, or

harm. For example, the intimacy between researchers and study participants inherent

in ethnographic and participant observation research can create ambiguous or

blurred personal–professional boundaries that can threaten the validity of data

collected (Fisher, 2004, 2011). Study participants may feel bound by a personal

relationship with an investigator to continue in a research project they find distressing,

or investigators may feel pressured to yield to participant demands for involvement

in illegal behaviors or for money or other resources above those allocated for

participation in the research (Singer et al., 1999).

􀀴 A psychologist was conducting ethnographic research on the lives of female sex workers

who were also raising young children. In an effort to establish a sense of trust with

the sex workers, she spent many months in the five-block radius where they worked,

sharing stories with them about her own parenting experiences. One day, when the

police were conducting a drug raid in the area, a participant the psychologist had

interviewed numerous times begged the psychologist to hold her marijuana before

the police searched her, crying that she would lose her child if the drugs were discovered.

The psychologist felt she had no choice but to agree to hide the drugs because

of the personal worries about the safety of her own children that she had shared with

the participant (adapted from Fisher, 2011).

Nonsexual Physical Contact

Nonsexual physical contact with clients/patients, students, or others over whom

the psychologist has professional authority can also lead to role misperceptions that

interfere with the psychologist’s professional functions. While Standard 3.05 does

not prohibit psychologists from hugging, handholding, or putting an arm around

those with whom they work in response to a special event (e.g., graduation, termination

of therapy, promotion), or showing empathy for emotional crises (e.g.,

death in the family, recounting of an intense emotional event), such actions can be

the first step toward an easing of boundaries that could lead to an unethical multiple

relationship.

Whenever such circumstances arise, psychologists should evaluate, before

they act, the appropriateness of the physical contact by asking the following

questions:

Is the initiation of physical contact consistent with the professional goals of

the relationship?

How might the contact serve to strengthen or jeopardize the future functioning

of the psychologist’s role?

How will the contact be perceived by the recipient?

Does the act serve the immediate needs of the psychologist rather than the

immediate or long-term needs of the client/patient, student, or supervisee?

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108——PART II ENFORCEABLE STANDARDS

Is the physical contact a substitute for more professionally appropriate

behaviors?

Is the physical contact part of a continuing pattern of behavior that may

reflect the psychologists’ personal problems or conflicts?

Need to Know: Professional Boundaries

and Self-Disclosure Over the Internet

The Internet has complicated psychologists’ control over access to personal information.

Psychologists can control some information disclosed on the Internet through

carefully crafted professional blogs, participation on professional or scientific listservs,

and credentials or course curricula posted on individual or institutional websites.

However, accidental self-disclosure (Zur, Williams, Lehavot, & Knapp, 2009) can occur

when clients/patients, students, employees, or others (a) pay for legal online background

checks that may include information on divorce or credit ratings, (b) conduct

illegal searches of cell phone records, or (c) use search engines to find information that

the psychologist may not be aware is posted online. Even when psychologists refuse

“friending” requests, it is increasingly easy for individuals to find information on social

networks such as Facebook through the millions of interconnected links and “mutual

friends” who may have personal postings from and photos of the psychologist on their

websites (Luo, 2009; L. Taylor, McMinn, Bufford, & Change, 2010; Zur et al., 2009).

Given the risks of accidental self-disclosure, psychologists should consider the following

to limit access to personal information (Barnett, 2008; Lehavot, Barnett, & Powers,

2010; Nicholson, 2011):

Set one’s social network settings to restrict access to specifically authorized

visitors only.

Consider whether posted personal information, if accessed, would cause harm to

those with whom you work; undermine your therapeutic, teaching, consultation, or

research effectiveness; or compromise the public’s trust in the discipline.

Periodically search one’s name online using different combinations (e.g., Dr. Jones,

Edward Jones, Jones family).

Consult with experts on how to remove personal or inaccurate information from

the Internet.

When appropriate discuss your Internet policies during informed consent or the

beginning of other professional relationships (see “Need to Know: Setting an Internet

Search and Social Media Policy During Informed Consent” in Chapter 13).

Relationships With Others

Psychologists also encounter situations in which a person closely associated with

someone with whom they have a professional role seeks to enter into a similar professional

relationship. For example, the roommate of a current psychotherapy client/

patient might ask the psychologist for an appointment to begin psychotherapy. A

CEO of a company that hires a psychologist to conduct personnel evaluations might

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Chapter 6 Standards on Human Relations——109

ask the psychologist to administer psychological tests to the CEO’s child to determine

whether the child has a learning disability. With few exceptions, entering into

such relationships would risk a violation of Standard 3.05a because it could reasonably

be expected that the psychologist’s ability to make appropriate and objective

judgments would be impaired, which in turn would jeopardize the effectiveness of

services provided and result in harm.

Receiving referrals from current or recent clients/patients should raise ethical

red flags. In many instances, accepting into treatment a friend, relative, or others

referred by a current client can create a real or perceived intrusion on the psychologist–

patient relationship. For example, a current client/patient may question whether the

psychologist has information about him or her gained from the person he or she

referred or whether the psychologist is siding with one person or the other if there

is a social conflict. Psychologists must also guard against exploiting clients/patients

by explicitly or implicitly encouraging referrals to expand their practice (see also

Standard 3.06, Conflict of Interest).

Some have suggested that treating psychologists should consider a referral from

a current client/patient in the same way they would evaluate the therapeutic meaning

of a “gift” (E. Shapiro & Ginzberg, 2003). In all circumstances, psychologists

must evaluate the extent to which accepting a referral can impair their objectivity

and conduct of their work or lead to exploitation or harm. One way of addressing

this issue is to clearly state to current patients the psychologist’s policy of not

accepting patient referrals and, if a situation arises requiring an immediate need for

treatment, to provide a professional referral to another psychologist (see also

Standard 2.02, Providing Services in Emergencies).

When practicing psychologists receive referrals from former clients/patients, it is

prudent to consider (a) whether the former client/patient may need the psychologist’s

services in the future, (b) whether information obtained about the new referral

during the former client’s/patient’s therapy is likely to impair the psychologist’s

objectivity, and (c) the extent to which the new referral’s beliefs about the former

client’s/patient’s relationship with the psychologist is likely to interfere with treatment

effectiveness.

Preexisting Personal Relationships

Psychologists may also encounter situations in which they are asked to take on a

professional role with someone with whom they have had a preexisting personal

relationship. Such multiple relationships are often unethical because the preexisting

relationship would reasonably be expected to impair the psychologist’s objectivity

and effectiveness.

􀀴 A psychologist agrees to spend a few sessions helping his nephew overcome anxiety

about going to school.

􀀴 At a colleague’s request, a psychologist agrees to administer a battery of tests to

assess whether the colleague has adult attention deficit disorder.

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110——PART II ENFORCEABLE STANDARDS

Sexual Multiple Relationships

Sexual relationships with individuals with whom psychologists have a current

professional relationship are always unethical. Because of the strong potential for

harm involved in such multiple relationships, they are specifically addressed in

several standards of the Ethics Code that will be covered in greater detail in

Chapters 10 and 13 (Standards 7.07, Sexual Relationships With Students and

Supervisees; 10.05, Sexual Intimacies With Current Therapy Clients/Patients; 10.06,

Sexual Intimacies With Relatives or Significant Others of Current Therapy Clients/

Patients; 10.07, Therapy With Former Sexual Partners; and 10.08, Sexual Intimacies

With Former Therapy Clients/Patients).

“Reasonably Expected”

It is important to note that the phrase “could reasonably be expected” indicates

that violations of Standard 3.05a may be judged not only by whether actual impairment,

harm, or exploitation has occurred but also by whether most psychologists

engaged in similar activities in similar circumstances would determine that entering

into such a multiple relationship would be expected to lead to such harms.

􀀵 A judge asked a psychologist who had conducted a custody evaluation to provide

6-month mandated family counseling for the couple involved followed by a reevaluation

for custody. The psychologist explained to the judge that providing family counseling

to individuals whose parenting skills the psychologist would later have to

evaluate could reasonably be expected to impair her ability to form an objective

opinion independent of knowledge gained and the professional investment made in

the counseling sessions. She also explained that such a multiple relationship could

impair her effectiveness as a counselor if the parents refrained from honest engagement

in the counseling sessions for fear that comments made would be used against

them during the custody assessment. The judge agreed to assign the family to another

psychologist for counseling.

Unavoidable Multiple Relationships

In some situations, it may not be possible or reasonable to avoid multiple relationships.

Psychologists working in rural communities, small towns, American

Indian reservations, or small insulated religious communities or who are qualified

to provide services to members of unique ethnic or language groups for which

alternative psychological services are not available would not be in violation of this

standard if they took reasonable steps to protect their objectivity and effectiveness

and the possibility of exploitation and harm (Werth et al., 2010).

Such steps might include seeking consultation by phone from a colleague to

help ensure objectivity and taking extra precautions to protect the confidentiality

of each individual with whom the psychologist works. Psychologists can also

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Chapter 6 Standards on Human Relations——111

explain to individuals involved the ethical challenges of the multiple relationships,

describe the steps the psychologist will take to mitigate these risks, and

encourage individuals to alert the psychologist to multiple relational situations of

which the psychologist might not be aware and that might place his or her effectiveness

at risk.

􀀵 A rabbi in a small orthodox Jewish community also served as the community’s sole

licensed clinical psychologist. The psychologist was careful to clearly articulate to his

clients the separation of his role as a psychologist and his role as their rabbi. His work

benefited from his ability to apply his understanding of the orthodox faith and community

culture to help clients/patients with some of the unique psychological issues

raised. He had been treating a young woman in the community for depression when

it became clear that a primary contributor to her distress was her deep questioning of

her faith. The psychologist knew from his years in the community that abandoning

orthodox tenets would most likely result in the woman being ostracized by her family

and community. As a rabbi, the psychologist had experience helping individuals

grapple with doubts about their faith. However, despite the woman’s requests, he was

unwilling to engage in this rabbinical role as a part of the therapy, believing that helping

the woman maintain her faith would be incompatible with his responsibility as a

psychologist to help her examine the psychological facets of her conflicted feelings.

The rabbi contacted the director of an orthodox rabbinical school who helped him

identify an advanced student with experience in Jewish communal service who was

willing to come to the community once a week to provide a seminar on Jewish studies

and meet individually with congregants about issues of faith. The psychologist

explained the role conflict to his patient. They agreed that she would continue to see

the psychologist for psychotherapy and meet with the visiting rabbinical student to

discuss specific issues of faith. Readers may also wish to refer to the Hot Topic in

Chapter 13 on the role of religion and spirituality in psychotherapy.

Correctional and Military Psychologists

Psychologists working in correctional settings and those enlisted in the military

often face unique multiple relationship challenges. In some prisons, correctional

administrators believe that all employees should provide services as officers. As

detailed by Weinberger and Sreenivasan (2003), psychologists in such settings may

be asked to search for contraband, use a firearm, patrol to prevent escapes, coordinate

inmate movement, and deal with crises unrelated to their role as a psychologist.

Any one of these roles has the potential to undermine the therapeutic

relationship a psychologist establishes with individual inmates by blurring the roles

of care provider and security officer. Such potentially harmful multiple relationships

are also inconsistent with the Standards for Psychological Services in Jails,

Prisons, Correctional Facilities, and Agencies (Althouse, 2000).

As required by Standard 1.03, Conflicts Between Ethics and Organizational

Demands, prior to taking a position as a treating psychologist or whenever correctional

psychologists are asked to engage in a role that will compromise their health

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112——PART II ENFORCEABLE STANDARDS

provider responsibilities, they should clarify the nature of the conflict to the administrator,

make known their commitment to the Ethics Code, and attempt to resolve

the conflict by taking steps to ensure that they do not engage in multiple roles that

will interfere with the provision of psychological services.

􀀵 A psychologist working in a correctional facility had successfully established his primary

role as that of mental health treatment provider with both prison officials and

inmates. He was not required to search his patients for contraband or to perform any

other security-related activities. As required of all facility staff, he received training in

the use of firearms and techniques to disarm prisoners who had weapons. On one

occasion, several newly admitted inmates suddenly began to attack some of the older

prisoners with homemade knives. As one of the few correctional staff members present

at the scene, the psychologist assisted the security staff in disarming the inmates.

Although none of the attacking inmates were in treatment with him, he did discuss

the incident with his current patients to address any concerns they might have about

the therapeutic relationship.

Psychologists in the military face additional challenges (Kennedy & Johnson,

2009). W. B. Johnson, Bacho, Heim, and Ralph (2006) highlight multiple role obligations

that may create a conflict between responsibilities to individual military

clients/patients and to their military organization: (a) as commissioned officers,

psychologists’ primary obligation is to the military mission; (b) embedded psychologists

must promote the fighting power and combat readiness of individual

military personnel and the combat unit as a whole; (c) since many military psychologists

are the sole mental health providers for their unit, there is less room for

choice of alternative treatment providers; (d) there is less control and choice

regarding shifts between therapeutic and administrative role relationships (e.g.,

seeing as a patient a member about whom the psychologist previously had to render

an administrative decision); and (e) like rural communities, military communities

are often small, with military psychologists having social relationships with

individuals who may at some point become patients.

To minimize the potential harm that could emerge from such multiple relationships,

Johnson et al. (2006) suggest that military psychologists (a) strive for a neutral

position in the community, avoiding high-profile social positions; (b) assume

that every member of the community is a potential client/patient and attempt to

establish appropriate boundaries accordingly, for example, limiting self-disclosures

that would be expected in common social circumstances; (c) provide informed

consent immediately if a nontherapeutic role relationship transitions into a therapeutic

one; (d) be conservative in the information one “needs to know” in the

therapeutic role to avoid to the extent feasible threats to confidentiality that may

emerge when an administrative role is required; (e) collaborate with clients/

patients on how best to handle role transitions when possible and appropriate; and

(f) carefully document multiple role conflicts, how they were handled, and the

rationale for such decisions.

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Chapter 6 Standards on Human Relations——113

(b) If a psychologist finds that, due to unforeseen factors, a potentially harmful multiple relationship

has arisen, the psychologist takes reasonable steps to resolve it with due regard for the best

interests of the affected person and maximal compliance with the Ethics Code.

There will be instances when psychologists discover that they are involved in a

potentially harmful multiple relationship of which they had been unaware. Standard

3.05b requires that psychologists take reasonable steps to resolve the potential harms

that might arise from such relationships, recognizing that the best interests of the

affected person and maximal compliance with other standards in the Ethics Code

may sometimes require psychologists to remain in the multiple roles.

􀀵 A military psychologist provided therapy to an enlisted officer who was ordered to enter

treatment for difficulties in job-related performance. During treatment, the client and

psychologist were assigned to a field exercise in which the client would be under

the psychologist’s command. To reassign the client to a different officer for the exercise,

the psychologist would need to speak with a superior who was not a mental health

worker. Recognizing that the client’s involvement in therapy would have to be revealed

in such a discussion, the psychologist explained the situation to the enlisted member

and asked permission to discuss the situation with her superiors. The client refused to

give permission. The psychologist was the only mental health professional on the base,

so transferring the client to another provider was not an option. The psychologist therefore

developed a specific plan with the client for how they would relate to each other

during the field exercise and how they would discuss in therapy issues that arose. (This

case is adapted from one of four military cases provided by Staal & King, 2000.)

􀀵 A psychologist responsible for conducting individual assessments of candidates for an

executive-level position discovered that one of the candidates was a close friend’s

husband. Because information about this prior relationship was neither confidential

nor harmful to the candidate, the psychologist explained the situation to company

executives and worked with the organization to assign that particular promotion

evaluation to another qualified professional.

􀀵 A psychologist working at a university counseling center discovered that a counseling

client had enrolled in a large undergraduate class the psychologist was going to teach.

The psychologist discussed the potential conflict with the client and attempted to help

him enroll in a different class. However, the client was a senior and needed the class

to complete his major requirements. In addition, there were no appropriate referrals

for the student at the counseling center. Without revealing the student’s identity, the

psychologist discussed her options with the department chair. They concluded that

because the class was very large, the psychologist could take the following steps to

protect her objectivity and effectiveness as both a teacher and a counselor: (a) a

graduate teaching assistant would be responsible for grading exams and for calculating

the final course grade based on the average of scores on the exams and (b) the

psychologist would monitor the situation during counseling sessions and seek consultation

if problems arose.

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114——PART II ENFORCEABLE STANDARDS

to serve in more than one role in judicial or administrative proceedings, at the outset they

clarify role expectations and the extent of confidentiality and thereafter as changes occur. (See

also Standards 3.04, Avoiding Harm, and 3.07, Third-Party Requests for Services.)

Standard 3.05c applies to instances when psychologists are required to serve in

more than one role in judicial or administrative proceedings because of institutional

policy or extraordinary circumstances. This standard does not permit psychologists

to take on these multiple roles if such a situation can be avoided. When

such multiple roles cannot be avoided, Standard 3.05c requires, as soon as possible

and thereafter as changes occur, that psychologists clarify to all parties involved the

roles that the psychologist is expected to perform and the extent and limits of confidentiality

that can be anticipated by taking on these multiple roles.

In most situations, psychologists are expected to avoid multiple relationships

in forensically relevant situations or to resolve such relationships when they

unexpectedly occur (Standard 3.05a and b). When such circumstances arise (e.g.,

performing a custody evaluation and then providing court-mandated family

therapy for the couple involved), the conflict can often be resolved by explaining

to a judge or institutional administrator the ethically problematic nature of the

multiple relationship (Standards 1.02, Conflicts Between Ethics and Law,

Regulations, and Other Governing Legal Authority; 1.03, Conflicts Between

Ethics and Organizational Demands).

􀀵 A psychologist in independent practice became aware that his neighbor had begun dating

one of the psychologist’s psychotherapy patients. Although telling the patient about

the social relationship could cause distress, it was likely that the patient would find out

about the relationship during conversations with the neighbor. The psychologist considered

reducing his social exchanges with the neighbor, but this proved infeasible. After

seeking consultation from a colleague, the psychologist decided that he could not ensure

therapeutic objectivity or effectiveness if the situation continued. He decided to explain

the situation to the patient, provide a referral, and assist the transition to a new therapist

during pretermination counseling (see also Standard 10.10, Terminating Therapy).

􀀵 A consulting psychologist developed a company’s sexual harassment policy. After the

policy was approved and implemented, the psychologist took on the position of counseling

employees experiencing sexual harassment. One of the psychologist’s clients

then filed a sexual harassment suit against the company. The psychologist was called

on by the defense to testify as an expert witness for the company’s sexual harassment

policy and by the plaintiff as a fact witness about the stress and anxiety observed during

counseling sessions. The psychologist (a) immediately disclosed to the company and

the employee the nature of the multiple relationship; (b) described to both the problems

that testifying might raise, including the limits of maintaining the confidentiality

of information acquired from either the consulting or counseling roles; and (c) ceased

providing sexual harassment counseling services for employees. Neither party agreed

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Chapter 6 Standards on Human Relations——115

3.06 Conflict of Interest

Psychologists refrain from taking on a professional role when personal, scientific, professional, legal,

financial, or other interests or relationships could reasonably be expected to (1) impair their objectivity,

competence, or effectiveness in performing their functions as psychologists or (2) expose the

person or organization with whom the professional relationship exists to harm or exploitation.

Psychologists strive to benefit from and establish relationships of trust with those with

whom they work through the exercise of professional and scientific judgments based on

their training and experience and established knowledge of the discipline (Principle A:

Beneficence and Nonmaleficence and Principle B: Fidelity and Responsibility).

Standard 3.06 prohibits psychologists from taking on a professional role when competing

professional, personal, financial, legal, or other interests or relationships could reasonably

be expected to impair their objectivity, competence, or ability to effectively

perform this role. Psychologists, especially those with prescription privileges, should

also be sensitive to the effect of gifts from pharmaceutical or others who might exert

influence on professional decisions (Gold & Applebaum, 2011). Examples of conflicts

of interest sufficient to compromise the psychologist’s judgments include the following:

􀀴 Irrespective of patients’ treatment needs, to save money, a psychologist reduced the

number of sessions for certain patients after he had exceeded his yearly compensation

under a capitated contract with an HMO (see the Hot Topic in Chapter 9, “Managing

the Ethics of Managed Care”).

􀀴 A member of a faculty-hiring committee refused to recuse herself from voting when a

friend applied for the position under the committee’s consideration.

􀀴 A psychologist in private practice agreed to be paid $1,000 for each patient he

referred for participation in a psychopharmaceutical treatment study.

􀀴 A research psychologist agreed to provide expert testimony on a contingent fee basis,

thereby compromising her role as advocate for the scientific data.

􀀴 A psychologist who had just purchased biofeedback equipment for his practice began

to overstate the effectiveness of biofeedback to his clients.

􀀴 A prescribing psychologist failed to disclose to patients her substantial financial

investment in the company that manufactured the medication the psychologist frequently

recommended.

􀀴 A psychologist used his professional website to recommend Internet mental health

services in which he had an undisclosed financial interest.

􀀴 A school psychologist agreed to conduct a record review for the educational placement

of the child of the president of a foundation that contributed heavily to the

private school that employed the psychologist.

to withdraw its request to the judge for the psychologist’s testimony. The psychologist

wrote a letter to the judge explaining the conflicting roles and asked to be recused from

testifying (see Hellkamp & Lewis, 1995, for further discussion of this type of dilemma).

HMO

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116——PART II ENFORCEABLE STANDARDS

Conflicts of interest can extend to financial or other gains that accrue to psychologists

indirectly through the effect of their decisions on the interests of their

family members:

􀀴 An educational psychologist encouraged a school system she was consulting to purchase

learning software from a company that employed her husband.

􀀴 An organizational psychologist was hired by a company to provide confidential support

and referral services for employees with substance abuse problems. The psychologist

would refer employees he counseled to a private mental health group

practice in which his wife was a member.

􀀴 A research psychologist on the board of a private foundation encouraged the foundation

to fund a colleague’s proposal from which he would be paid as a statistical

consultant.

􀀴 A psychologist accepted a position on the board of directors from a company for

which she was currently conducting an independent evaluation of employee

productivity.

􀀴 A psychologist took on a psychotherapy client who was a financial analyst at the

brokerage company the psychologist used for his personal investments.

􀀴 A psychologist serving on her university’s IRB gave in to pressure to approve a study

with ethically questionable procedures because it would bring a substantial amount

of funding dollars to the university.

􀀵 A school psychologist refused the district superintendent’s request that she conduct

training sessions for teachers at an overcrowded school that would result in the misapplication

of behavioral principles to keep students docile and quiet.

Psychologists also have a fiduciary responsibility to avoid actions that would create

public distrust in the integrity of psychological science and practice (Principle B:

Fidelity and Responsibility). Accordingly, Standard 3.06 also prohibits taking on a

role that would expose a person or organization with whom a psychologist already

works to harm or exploitation. For example:

Psychologists in administrative positions have a responsibility to resist explicit

or implicit pressure to bias decisions regarding the adequacy of research participant

or patient protections to meet the needs of the institution’s financial interests.

Organizational and consulting psychologists should be wary of situations in

which an employer may request the psychologist to assist with managerial directives

that may be ethically inappropriate and harmful to the wellbeing of employees

(Lefkowitz, 2012).

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Chapter 6 Standards on Human Relations——117

Conflicts of Interest in Forensic Practice

Psychologists seek to promote accuracy and truthfulness in their work (Principle C:

Integrity). Forensic psychologists hired to provide expert testimony based on forensic

assessment or research relevant to the legal decision need to be aware of potential

conflicts of interest that may impair their objectivity or lead them to distort

their testimony. For example, psychologists providing expert testimony should not

provide such services on the basis of contingent fees (fees adjusted to whether a case

is won or lost) since this can exert pressure on psychologists to intentionally or

unintentionally modify their reports or testimony in favor of the retaining party.

However, if a psychologist is serving as a consultant to a legal team and will not be

testifying in court, a contingency fee may not be unethical as long as it does not lead

psychologists to distort facts in giving their advice (Heilbrun, 2001). Psychologists

should also avoid charging higher fees for testimony since this may motivate writing

a report that is more likely to lead to a request to testify (Heilbrun, 2001). Bush

et al. (2006) suggest psychologists set fixed rates (which may be required in some

states) and bill an hourly rate consistent for all activities.

Forensic psychologists hired by the defense team must also avoid explicit or

subtle pressure to use more or less sensitive symptom validation measures to assess

the mental status of the defendant. Psychologists should not submit to pressure by

a legal team to modify a submitted report. Amendments to the original report may

be added to correct factual errors, and if a report is rewritten, the rationale for the

changes should be given within the report (Bush et al., 2006; Martelli, Bush, &

Sasler, 2003). Interested readers may also refer to the Chapter 8 Hot Topic on

“Avoiding False and Deceptive Statements in Scientific and Clinical Expert

Testimony.”

Corporate Funding and Conflicts of Interest

in Research, Teaching, and Practice

The APA Task Force on External Funding (http://www.apa.org/pubs/info/reports/

external-funding.aspx) provides a detailed history of conflicts of interest in related

fields and provides specific recommendations for psychology (see also Pachter, Fox,

Zimbardo, & Antonuccio, 2007). Recommendations include the following:

When research is industry sponsored, psychologists should ensure that they

have input into study design, independent access to raw data, and a role in

manuscript submission.

Full public disclosure regarding financial conflicts of interest should be

included in all public statements.

Psychologists should be aware and guard against potential biases inherent in

accepting sponsor-provided inducements that might affect their selection of

textbooks or assessment instruments.

Practitioners should be alert to the influence on clients/patients of sponsorprovided

materials (e.g., mugs, pens, notepads) that might suggest endorsement

of the sponsor’s products.

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118——PART II ENFORCEABLE STANDARDS

Many federal agencies, professional and scientific organizations, and academic

and other institutions have conflict of interest policies of which psychologists

should be aware.

The National Institutes of Health (NIH) Office of Extramural Research

requires every institution receiving Public Health Service (PHS) research

grants to have written guidelines for the avoidance and institutional review

of conflict of interest. These guidelines must reflect state and local laws and

cover financial interests, gifts, gratuities and favors, nepotism, political participation,

and bribery. In addition, employees accepting grants or contracts

are expected to be knowledgeable of the granting and contracting organization’s

conflict-of-interest policy and to abide by it (http://grants.nih.gov/

grants/policy/coi/). In addition, the PHS Regulations 42 CFR Part 50

(Subpart F) and 45 CFR Part 94 provide conflict-of-interest guidelines for

individual investigators (http://grants.nih.gov/grants/guide/notice-files/

not95-179.html).

The APA Editor’s Handbook: Operating Procedures and Policies for APA

Publications (APA, 2006, Policy 1.03) requires that journal reviewers and editors

avoid either real or apparent conflict of interest by declining to review

submitted manuscripts from recent collaborators, students, or members of

their institutions or work from which they might obtain financial gain. When

such potential conflicts of interest arise or when editors or associate editors

submit their own work to the journal they edit, the Handbook recommends

that the editor (a) request a well-qualified individual to serve as ad hoc Action

Editor, (b) set up a process that ensures the Action Editor’s independence, and

requires all authors to submit a Full Disclosure of Interests Form that certifies

whether the psychologist or his or her immediate family members have significant

financial or product interests related to information provided in the

manuscript or other sources of negative or positive bias (www.apa.org/pubs/

authors/disclosure_of_interests.pdf).

The APA Committee on Accreditation’s Conflict of Interest Policy for Site

Visitors includes prohibitions against even the appearance of a conflict of

interest for committee members and faculty in the program being visited.

Possible conflicts include former employment or enrollment in the program

or a family connection or close friend or professional colleague in the program

(http://www.apa.org/ed/accreditation/visits/conflict.aspx).

The NASP’s Professional Conduct Manual requires psychologists to avoid conflicts

of interest by recognizing the importance of ethical standards and the

separation of roles and by taking full responsibility for protecting and informing

the consumer of all potential concerns (NASP, 2010, V.A.1).

According to the SGFP (AP-LS Committee on the Revision of the Specialty

Guidelines for Forensic Psychologists, 2010), psychologists should not provide

services to parties to a legal proceeding on the basis of a contingent fee

(SGFP, IV.B).

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Chapter 6 Standards on Human Relations——119

3.07 Third-Party Requests for Services

When psychologists agree to provide services to a person or entity at the request of a third party,

psychologists attempt to clarify at the outset of the service the nature of the relationship with all

individuals or organizations involved. This clarification includes the role of the psychologist (e.g.,

therapist, consultant, diagnostician, or expert witness), an identification of who is the client, the

probable uses of the services provided or the information obtained, and the fact that there may

be limits to confidentiality. (See also Standards 3.05, Multiple Relationships, and 4.02, Discussing

the Limits of Confidentiality.)

Psychologists are often asked to conduct an assessment, provide psychotherapy,

or testify in court by third parties who themselves will not be directly involved in

the evaluation, treatment, or testimony.

In all these cases, Standard 3.07 requires psychologists at the outset of services

to explain to both the third party and those individuals who will receive psychological

services the nature of the psychologist’s relationship with all individuals or

organizations involved. This includes providing information about the role of the

psychologist (i.e., therapist, consultant, diagnostician, expert witness), identifying

whether the third party or the individual receiving the services is the client, who

will receive information about the services, and probable uses of information

gained or services provided.

􀀵 A company asked a psychologist to conduct preemployment evaluations of potential

employees. The psychologist informed each applicant evaluated that she was working

for the company, that the company would receive the test results, and that the information

would be used in hiring decisions.

􀀵 A school district hired a psychologist to evaluate students for educational placement.

The psychologist first clarified state and federal laws on parental rights regarding

educational assessments, communicated this information to the school superintendent

and the child’s guardian(s), and explained the nature and use of the assessments

and the confidentiality and reporting procedures the psychologist would use.

􀀵 A legal guardian requested behavioral treatment for her 30-year-old developmentally

disabled adult child because of difficulties he was experiencing at the sheltered workshop

where he worked. At the outset of services, using language compatible with the

client’s/patient’s intellectual level, the psychologist informed the client/patient that

the guardian had requested the treatment, explained the purpose of the treatment,

and indicated the extent to which the guardian would have access to confidential

information and how such information might be used.

􀀵 A defense attorney hired a psychologist to conduct an independent evaluation of a

plaintiff who claimed that the attorney’s client had caused her emotional harm. The

plaintiff agreed to be evaluated. The psychologist first explained to the plaintiff that

the defense attorney was the client and that all information would be shared with the

attorney and possibly used by the attorney to refute the plaintiff’s allegations in court.

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120——PART II ENFORCEABLE STANDARDS

Legal Representatives Seeking to

Retain a Forensic Psychologist

In many instances, forensic psychologists will be retained by the attorney

representing the legal party’s interests. In such instances, the attorney is the psychologist’s

client. During the initial consultation with a legal representative seeking

the psychologist’s forensic services, psychologists should consider providing

the following information: (a) the fee structure for anticipated services; (b) previous

or current obligations, activities, or relationships that might be perceived as

conflicts of interest; (c) level and limitations of competence to provide forensic

services requested; and (d) any other information that might reasonably be

expected to influence the decision to contract with the psychologist (see AP-LS

Committee on the Revision of the Specialty Guidelines for Forensic Psychologists,

2010; Standard 6.04a, Fees and Financial Arrangements).

Implications of HIPAA

Psychologists planning to share information with third parties should also carefully

consider whether such information is included under the HIPAA definition of

Protected Health Information (PHI), whether HIPAA regulations require prior

patient authorization for such release, or whether the authorization requirement

can be waived by the legal prerogatives of the third party (45 CFR 164.508 and

164.512). Psychologists should then clarify beforehand to both the third party and

recipient of services the HIPAA requirements for the release of PHI (see also “A

Word About HIPAA” in the Preface of this book).

3.08 Exploitative Relationships

Psychologists do not exploit persons over whom they have supervisory, evaluative, or other

authority such as clients/patients, students, supervisees, research participants, and employees.

(See also Standards 3.05, Multiple Relationships; 6.04, Fees and Financial Arrangements; 6.05,

Barter With Clients/Patients; 7.07, Sexual Relationships With Students and Supervisees; 10.05,

Sexual Intimacies With Current Therapy Clients/Patients; 10.06, Sexual Intimacies With Relatives

Once the evaluation commenced, the psychologist avoided using techniques that

would encourage the plaintiff to respond to the psychologist as a psychotherapist

(Hess, 1998).

􀀵 A judge ordered a convicted sex offender to receive therapy as a condition of parole.

The psychologist assigned to provide the therapy explained to the parolee that all

information revealed during therapy would be provided to the court and might be

used to rescind parole.

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Chapter 6 Standards on Human Relations——121

or Significant Others of Current Therapy Clients/Patients; 10.07, Therapy With Former Sexual Partners;

and 10.08, Sexual Intimacies With Former Therapy Clients/Patients.)

Standard 3.08 prohibits psychologists from taking unfair advantage of or manipulating

for their own personal use or satisfaction students, supervisees, clients/

patients, research participants, employees, or others over whom they have authority.

The following are examples of actions that would violate this standard:

􀀴 Repeatedly requiring graduate assistants to work overtime without additional

compensation

􀀴 Requiring employees to run a psychologist’s personal errands

􀀴 Taking advantage of company billing loopholes to inflate rates for consulting services

􀀴 Encouraging expensive gifts from psychotherapy clients/patients

􀀴 Using “bait-and-switch” tactics to lure clients/patients into therapy with initial low

rates that are hiked after a few sessions

Violations of Standard 3.08 often occur in connection with other violations of

the Ethics Code. For example:

􀀴 Psychologists exploit the trust and vulnerability of individuals with whom they work

when they have sexual relationships with current clients/patients or students

(Standards 10.05, Sexual Intimacies With Current Therapy Clients/Patients, and 7.07,

Sexual Relationships With Students and Supervisees).

􀀴 Exploitation occurs when a psychologist accepts nonmonetary remuneration from

clients/patients, the value of which is substantially higher than the psychological services

rendered (Standard 6.05, Barter With Clients/Patients).

􀀴 Psychologists exploit patients with limited resources who they know will require longterm

treatment plans when they provide services until the patients’ money or insurance

runs out and then refer them to low-cost or free alternative treatments.

􀀴 It is exploitative to charge clients/patients for psychological assessments for

which the client/patient had not initially agreed to and that are unnecessary for

the agreed on goals of the psychological evaluation (Standard 6.04a, Fees and

Financial Arrangements).

􀀴 School psychologists exploit their students when, in their private practice, they provide

fee-for-service psychological testing to students who could receive these services

free of charge from the psychologist in the school district in which they work

(Standard 3.05a, Multiple Relationships; see also the Professional Conduct Manual

for School Psychology, National Association of School Psychologists, 2010, http://

www.nasponline.org/standards/ProfessionalCond.pdf).

Standard 3.08 does not prohibit psychologists from having a sliding-fee scale or

different payment plans for different types or amount of services, as long as the fee

practices are fairly and consistently applied.

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122——PART II ENFORCEABLE STANDARDS

Recruitment for Research Participation

Institutional populations are particularly susceptible to research exploitation.

Prisoners and youth held for brief periods in detention centers, for example, are

highly vulnerable because of their restricted autonomy and liberty, often compounded

by their low socioeconomic status, poor education, and poor health

(Gostin, 2007). Incarcerated persons have few expectations regarding privacy protections

and may view research participation as a means of seeking favor with or

avoiding punishment from prison guards or detention officials. Inpatients in psychiatric

centers or nursing homes are also vulnerable to exploitive recruitment practices

that touch upon their fears that a participation refusal will result in denial of other

needed services. Investigators should ensure through adequate informed consent

procedures and discussion with institutional staff that research participation is not

coerced (Fisher, 2004; Fisher et al., 2002; Fisher & Vacanti-Shova, 2012; see also

Standards 8.02, Informed Consent to Research, and 8.06, Offering Inducements for

Research Participation).

3.09 Cooperation With Other Professionals

When indicated and professionally appropriate, psychologists cooperate with other professionals

in order to serve their clients/patients effectively and appropriately. (See also Standard 4.05,

Disclosures.)

Individuals who come to psychologists for assessment, counseling, or therapy

are often either receiving or in need of collateral medical, legal, educational, or

social services. Collaboration and consultation with, and referral to, other professionals

are thus often necessary to serve the best interests of clients/patients.

Standard 3.09 requires psychologists to cooperate with other professionals when it

is appropriate and will help serve the client/patient most effectively. For example:

􀀵 With permission and written authorization of the parent, a clinical child psychologist

spoke with a child’s teacher to help determine if behaviors suggestive of attention

deficit disorder exhibited at home and in the psychologist’s office were consistent

with the child’s classroom behavior.

􀀵 With consent from the parent, a school psychologist contacted a social worker who

was helping a student’s family apply for public assistance to help determine the availability

of collateral services (e.g., substance abuse counseling).

􀀵 A psychologist with prescribing privileges referred a patient to a physician for diagnosis

of physical symptoms thought by the patient to be the result of a psychological

disorder that was more suggestive of a medical condition.

In schools, hospitals, social service agencies, and other multidisciplinary settings,

a psychologist may have joint responsibilities with other professionals for the

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Chapter 6 Standards on Human Relations——123

assessment or treatment of those with whom they work. In such settings, psychologists

should develop a clear agreement with the other professionals regarding overlapping

and distinct role responsibilities and how confidential information should

be handled in the best interests of the students or clients/patients. The nature of

these collaborative arrangements should be shared with the recipients of the services

or their legal guardians.

Implications of HIPAA

Psychologists who are covered entities under HIPAA should be familiar with

situations in which regulations requiring patients’ written authorization for

release of PHI apply to communications with other professionals (45 CFR 164.510,

164.512). They should also be aware of rules governing patients’ rights to know

when such disclosures have been made (45 CFR 164.520, Notice of Privacy

Practices, and 45 CFR 164.528, Accounting of Disclosures of Protected Health

Information).

3.10 Informed Consent

(a) When psychologists conduct research or provide assessment, therapy, counseling, or consulting

services in person or via electronic transmission or other forms of communication, they obtain

the informed consent of the individual or individuals using language that is reasonably understandable

to that person or persons except when conducting such activities without consent is

mandated by law or governmental regulation or as otherwise provided in this Ethics Code. (See

also Standards 8.02, Informed Consent to Research; 9.03, Informed Consent in Assessments; and

10.01, Informed Consent to Therapy.)

Informed consent is seen by many as the primary means of protecting the selfgoverning

and privacy rights of those with whom psychologists work (Principle E:

Respect for People’s Rights and Dignity). Required elements of informed consent for

specific areas of psychology are detailed in Standards 8.02, Informed Consent to

Research; 9.03, Informed Consent in Assessments; and 10.01, Informed Consent to

Therapy. The obligations described in Standard 3.10 apply to these other consent standards.

Language

In research, assessment, and therapy, psychologists must obtain informed consent

using language reasonably understandable by the person asked to consent. For

example, psychologists must use appropriate translations of consent information

for individuals for whom English is not a preferred language or who use sign language

or Braille. Psychologists should also adjust reading and language comprehension

levels of consent procedures to an individual’s developmental or educational

level or reading or learning disability.

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124——PART II ENFORCEABLE STANDARDS

Culture

Individuals from recently immigrated or disadvantaged cultural communities

may lack familiarity with assessment, treatment or research procedures, and

terminology typically used in informed consent documents (Fisher, in press).

These individuals may also be unfamiliar with or distrust statements associated

with voluntary choice and other client/patient or research participant rights

described during informed consent. Standard 3.10 requires sensitivity to the

cultural dimensions of individuals’ understanding of and anticipated responses

to consent information and tailor informed consent language to such dimensions.

This may also require psychologists to include educational components

regarding the nature of and individual rights in agreeing to psychological services

or research participation. For individuals not proficient in English, written

informed consent information must be translated in a manner that considers

cultural differences in health care or scientific concepts that present challenges

in a word-for-word translation. When using interpreters to conduct informed

consent procedures, psychologists must follow the requirements of Standard 2.05,

Delegation of Work to Others, in ensuring their competence, training, and

supervision. Readers may also wish to refer to Hot Topic “Multicultural Ethical

Competence” in Chapter 5.

Consent via Electronic Transmission

Standard 3.10a requires that informed consent be obtained when research,

assessment, or therapy is conducted via electronic transmission such as the telephone

or the Internet. Psychologists need to take special steps to identify the language

and reading level of those from whom they obtain consent via electronic

media. In addition, psychologists conducting work via e-mail or other electronic

communications should take precautions to ensure that the individual who gave

consent is in fact the individual participating in the research or receiving the psychologist’s

services (i.e., use of a participant/client/patient password).

Exemptions

Some activities are exempt from the requirements of Standard 3.10. For example,

psychologists conducting court-ordered assessments or evaluating military

personnel may be prevented from obtaining consent by law or governmental regulation.

In addition, several standards in the Ethics Code detail conditions under

which informed consent may be waived (Standards 8.03, Informed Consent for

Recording Voices and Images in Research; 8.05, Dispensing With Informed Consent

for Research; and 8.07, Deception in Research). HIPAA also permits certain exemptions

from patient authorization requirements relevant to research and practice,

which are discussed in later chapters on standards for research, assessment, and

therapy (see also “A Word About HIPAA” in the Preface of this book).

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Chapter 6 Standards on Human Relations——125

(b) For persons who are legally incapable of giving informed consent, psychologists nevertheless

(1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such persons’

preferences and best interests, and (4) obtain appropriate permission from a legally authorized

person, if such substitute consent is permitted or required by law. When consent by a legally

authorized person is not permitted or required by law, psychologists take reasonable steps to

protect the individual’s rights and welfare.

Adults who have been declared legally incompetent and most children younger

than 18 years of age do not have the legal right to provide independent consent to

receive psychological services or participate in psychological research. In recognition

of these individuals’ rights as persons, Standard 3.10b requires that psychologists

obtain their affirmative agreement to participate in psychological activities after

providing them with an explanation of the nature and purpose of the activities and

their right to decline or withdraw from participation. The phrase “consider such

persons’ preferences and best interests” indicates that although in most instances,

psychologists respect a person’s right to dissent from participation in psychological

activities, this right can be superseded if failure to participate would deprive persons

of psychological services necessary to protect or promote their welfare.

For individuals who are legally incapable of giving informed consent, psychologists

must also obtain permission from a legally authorized person if such substitute

consent is permitted or required by law. Psychologists working with children

in the foster care system and in juvenile detention centers and those working with

institutionalized adults with identified cognitive or mental disorders leading to

decisional impairment must carefully determine who has legal responsibility for

substitute decision making. Psychologists should be aware that in some instances,

especially for children in foster care, legal guardianship may change over time.

Informed Consent in Research and Practice

Involving Children and Adolescents

In law and ethics, guardian permission is required to protect children from consent

vulnerabilities related to immature cognitive skills, lack of emotional preparedness

and experience in clinical or research settings, and actual or perceived

power differentials between children and adults (Fisher & Vacanti-Shova, 2012;

Koocher & Henderson Daniel, 2012). Despite these limitations, the landmark

“Convention on the Rights of the Child” (United Nations General Assembly, 1989)

established international recognition that children should have a voice in decisions

that affect their well-being. Out of respect for their developing autonomy, the APA

Ethics Code and federal regulations governing research (DHHS, 2009) require the

informed assent of children capable of providing assent. Psychologists working

with children should be familiar with the growing body of empirical data on the

development of children’s understanding of the nature of medical and mental

health treatment and research and with rights-related concepts such as confidentiality

and voluntary assent or dissent (Bruzzese & Fisher, 2003; Condie & Koocher, 2008;

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126——PART II ENFORCEABLE STANDARDS

D. Daniels & Jenkins, 2010; Field & Behrman, 2004; Fisher, 2002a; Gibson, Stasiulis,

Gutfreund, McDonald, & Dade, 2011; Koelch et al., 2009; V. A. Miller, Drotar, &

Kodish, 2004; Unguru, 2011).

Need to Know: Ethically Appropriate

Child and Adolescent Assent Procedures

When creating the content and language of ethically appropriate assent procedures, psychologists

should be guided by the following (Chenneville, Sibille, & Bendell-Estroff, 2010;

Fisher & Vacanti-Shova, 2012; Masty & Fisher, 2008):

Empirical literature on children’s understanding of the nature and purpose of

mental health treatment or research, confidentiality protections and limitations,

and the voluntary nature of participation (Standard 2.01, Boundaries of

Competence)

Scientific and clinical knowledge of the relationship between specific pediatric

mental health disorders and the cognitive and emotional capacity to assent

(Standard 2.04, Bases for Scientific and Professional Judgments)

Individual evaluation, when relevant, of the child’s appreciation of his or her

mental health status and treatment needs, understanding of the risks and benefits

of assent or dissent, the information he or she may want or need to make an

informed assent decision, and whether an assessment of assent capacity is

required

The child’s experience with his or her own health care decision making and preference

for the degree of involvement the child wishes to have in the treatment or

research participation decision

Children should never be asked to assent or dissent to participation if their choice

will not be respected, that is, in situations in which assessment or intervention is

necessary to identify or alleviate a mental health problem (see also the discussion

of assent to pediatric clinical trials in Chapter 11)

Emancipated and Mature Minors

There are instances when guardian permission for treatment or research is not

required or possible for children younger than 18 years of age. For example, emancipated

minor is a legal status conferred on persons who have not yet attained the

age of legal competency (as defined by state law) but are entitled to treatment as if

they have such status by virtue of assuming adult responsibilities, such as selfsupport,

marriage, or procreation. Mature minor is someone who has not reached

adulthood (as defined by state law) but who, according to state law, may be treated

as an adult for certain purposes (e.g., consenting to treatment for venereal disease,

drug abuse, or emotional disorders). Psychologists working with children need to

be familiar with the definition of emancipated and mature minors in the specific

states in which they work. When a child is an emancipated or mature minor,

informed consent procedures should follow Standard 3.10a.

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Chapter 6 Standards on Human Relations——127

Best Interests of the Child

The requirement for guardian permission may be inappropriate if there is serious

doubt whether the guardian’s interests adequately reflect the child’s interests

(e.g., cases of child abuse or neglect, genetic testing of a healthy child to assist in

understanding the disorder of a sibling) or cannot reasonably be obtained (e.g.,

treatment or research involving runaways). In such cases, the appointment of a

consent advocate can protect the child’s rights and welfare by verifying the minor’s

understanding of assent procedures, supporting the child’s preferences, ensuring

participation is voluntary, and monitoring reactions to psychological procedures.

Psychologists conducting research need to be familiar with federal regulations

regarding waiver of parental permission (45 CFR 46.408c) and have such waivers

approved by an IRB (Standard 8.01, Institutional Approval; Fisher, Hoagwood, &

Jensen, 1996; Fisher & Vacanti-Shova, 2012). Psychologists conducting therapy

need to be familiar with their state laws regarding provision of therapy to children

and adolescents without parental consent (Fisher, Hatashita-Wong, & Isman, 1999;

Koocher & Henderson Daniel, 2012).

Adults With Cognitive Impairments Who

Do Not Have Legal Guardians

There may be adults, such as those with Alzheimer’s disease or developmental

disabilities, who do not have a legal guardian but whose ability to fully understand

consent-relevant information is impaired (APA, 2012b). For example, clinical geropsychologists

frequently work with older persons with progressive dementia living

in nursing homes and assisted-living and residential care facilities where substitute

decision making is typically handled informally by family members or others. In

addition to obtaining consent from the individual, psychologists can seek additional

protections for the individual by encouraging a shared decision-making

process with or seeking additional permission from these informal caretakers

(Fisher, 1999, 2002b, 2003b; Fisher, Cea, Davidson, & Fried, 2006; see also the Hot

Topic, “Goodness-of-Fit Ethics for Informed Consent Involving Adults With

Impaired Decisional Capacity,” at the end of this chapter).

HIPAA Notice of Privacy Practices

HIPAA requires that if, under applicable law, a person has authority to act on

behalf of an individual who is an adult or minor in making decisions related to

health care, a covered entity must treat such a person (called a personal representative)

as the individual. Exceptions are permitted if there is reason to believe that the

patient has been abused or is endangered by the personal representative or that

treating the individual as a personal representative would not be in the best interests

of the client/patient (45 CFR 164.502g). This requirement refers to courtappointed

guardians or holders of relevant power of attorney of adults with

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128——PART II ENFORCEABLE STANDARDS

impaired capacities, parents who are generally recognized as personal representatives

of their minor children, and individuals designated as a representative by the

patient. To comply with both Standard 3.10b and the HIPAA Notice of Privacy

Practices (see “A Word About HIPAA” in the Preface of this book), psychologists

should provide the Notice of Privacy Practices to both the individual’s legal guardian

or personal representative and the client/patient.

the individual of the nature of the anticipated services, including whether the services are court

ordered or mandated and any limits of confidentiality, before proceeding.

When informed consent is prohibited by law or other governing authority, psychologists

must nonetheless respect an individual’s right to know the nature of

anticipated services, whether the services were court ordered or mandated by

another governing authority, and the limits of confidentiality before proceeding.

Military Psychologists

When regulations permit, military psychologists should inform active-duty personnel

of the psychologist’s duty to report information revealed during assessment

or therapy to appropriate military agencies violations of the Uniform Code of

Military Justice.

Court-Ordered Assessments

Psychologists conducting a court-ordered forensic assessment must inform the

individual tested (a) why the assessment is being conducted, (b) that the findings

may be entered into evidence in court, and (c) if known to the psychologist, the

extent to which the individual and his or her attorney will have access to the information.

The psychologist should not assume the role of legal adviser but can advise

the individual to speak with his or her attorney when a testee asks about potential

legal consequences of noncooperation.

(d) Psychologists appropriately document written or oral consent, permission, and assent. (See

also Standards 8.02, Informed Consent to Research; 9.03, Informed Consent in Assessments; and

10.01, Informed Consent to Therapy.)

Standard 3.10d requires psychologists conducting research or providing health

or forensic services to document that they have obtained consent or assent from an

individual and permission by a legal guardian or substitute decision maker. In most

instances, individuals will sign a consent, assent, or permission form. Sometimes,

oral consent is appropriate, such as when obtaining a young child’s assent, when

working with illiterate populations, when there is concern that confidentiality may

be at risk (i.e., in war-torn countries where consent documents may be confiscated

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Chapter 6 Standards on Human Relations——129

by local authorities), or when a signature would risk identification in anonymous

surveys. In these situations, documentation can be provided by a note in the psychologist’s

records, or, in the case of anonymous, web-based or mail surveys, by the

participants’ checking a box to indicate that they have read the consent information

and agree to participate.

Implications of HIPAA

Appropriate documentation can also be related to legal requirements. For

example, HIPAA requires that all valid client/patient authorizations for the use and

disclosure of PHI be signed and dated by the individual or the individual’s personal

representative (45 CFR 164.508[c][1][vi]).

3.11 Psychological Services Delivered

To or Through Organizations

(a) Psychologists delivering services to or through organizations provide information beforehand

to clients and when appropriate those directly affected by the services about (1) the nature and

objectives of the services, (2) the intended recipients, (3) which of the individuals are clients,

(4) the relationship the psychologist will have with each person and the organization, (5) the

probable uses of services provided and information obtained, (6) who will have access to the

information, and (7) limits of confidentiality. As soon as feasible, they provide information about

the results and conclusions of such services to appropriate persons.

The informed consent procedures described in Standard 3.10, Informed Consent,

are often not appropriate or sufficient for consulting, program evaluation, job effectiveness,

or other psychological services delivered to or through organizations. In

such contexts, Standard 3.11 requires that organizational clients, employees, staff, or

others who may be involved in the psychologists’ activities be provided information

about (a) the nature, objectives, and intended recipients of the services; (b) which

individuals are clients and the relationship the psychologist will have with those

involved; (c) the probable uses of and who will have access to information gained;

and (d) the limits of confidentiality. Psychologists must provide results and conclusions

of the services to appropriate persons as early as is feasible.

􀀵 An industrial–organizational psychologist was hired to evaluate whether a company’s

flexible-shift policy had lowered employee absentee rates. In addition to a review of

employee records, the evaluation would include interviews with supervisors and employees

on the value and limits of the policy. The psychologist prepared a document for all

supervisors and employees explaining (a) the purpose of the evaluation, (b) the nature of

and reason for employee record review and the interviews, (c) that the evaluation would

be used to help the company decide if it should maintain or modify its current flexible-shift

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130——PART II ENFORCEABLE STANDARDS

(b) If psychologists will be precluded by law or by organizational roles from providing such information

to particular individuals or groups, they so inform those individuals or groups at the outset of the service.

Standard 3.11b pertains to situations in which psychological services not requiring

informed consent are mandated by law or governmental regulations, and the law or

regulations restrict those affected by the services from receiving any aspect of the

information listed in Standard 3.11a.

policy, (d) that no one in the company would have access to the identities of the individuals

interviewed, and (e) that the results and conclusions would be presented to the

company’s board of directors in a manner that protected confidentiality.

􀀵 A psychologist was hired by a school district to observe teacher management of student

behavior during lunch and recess to help the district determine how many teachers were

required for such activities and whether additional staff training was needed for these

responsibilities. The psychologist held a meeting for all teaching staff who would be

involved in the observations. At the meeting, the psychologist explained why the school

district was conducting the research, how long it would last, the ways in which notes and

summaries of observations would be written to protect the identities of individual teachers,

that a detailed summary of findings would be presented to the school superintendent,

and that, with the district’s permission, teachers would receive a summary report.

􀀵 A psychologist providing court-ordered therapy to a convicted pedophile submitted a

report to the court regarding the therapy client’s attendance and responsiveness to treatment.

The therapist was prohibited from releasing the report to the client. At the beginning

of therapy, the psychologist had informed the client that such a report would be

written and that the client would not have access to the report through the psychologist.

􀀵 A company stipulated that the results of a personality inventory conducted as part of an

employee application and screening process would not be available to applicants.

Psychologists informed applicants about these restrictions prior to administering the tests.

􀀵 An inmate of a correctional institution was required to see the staff psychologist after

repeatedly engaging in disruptive and violent behaviors that were jeopardizing the

safety of the staff and other prisoners. The psychologist explained to the inmate that

in this situation, she was acting on the request of prison officials to help the inmate

control his behaviors. She also informed the inmate that she would be submitting

formal reports on the sessions that might be used by prison officials to determine if

the inmate would be assigned to a more restrictive facility.

Implications of HIPAA

Standard 3.11b may also apply to health care settings in which institutional

policy dictates that testing results are sent to another professional responsible for

interpreting and communicating the results to the client/patient. However, the

nature of such institutional policies may be changing in light of HIPAA regulations

providing greater client/patient access to PHI and control of disclosures of PHI.

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Chapter 6 Standards on Human Relations——131

3.12 Interruption of Psychological Services

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. (See also Standard 6.02c, Maintenance, Dissemination, and

Disposal of Confidential Records of Professional and Scientific Work.)

Planned and unplanned interruptions of psychological services often occur. For

example, a psychologist can leave a job at a mental health care facility for a new

position, take parental or family leave, interrupt services for a planned medical

procedure, or retire from private practice. Clients/patients may move out of state or

have a limited number of sessions covered by insurance.

When interruption of services can be anticipated, Standard 3.12 requires psychologists

to make reasonable efforts to ensure that needed service is continued. Such efforts

can include (a) discussing the interruption of services with the clients/patients and

responding to their concerns, (b) conducting pretermination counseling, (c)referring

the client/patient to another mental health practitioner, and, if feasible and clinically

appropriate, (d) working with the professional who will be responsible for the client’s/

patient’s case (see also Standard 10.10, Terminating Therapy).

􀀵 A psychologist providing Internet-mediated psychological services to clients in a distant

rural community included in her informed consent information the address of a

website she created providing continuously updated information on the names, credentials,

and contact information of local and electronically accessible backup professionals

available to assist clients if the psychologist was not immediately available

during an emergency.

Standard 3.12 also requires psychologists to prepare for unplanned interruptions

such as sudden illness or death. In most cases, it would suffice to have a

trusted professional colleague prepared to contact clients/patients if such a

situation arises. Pope and Vasquez (2007) recommend that psychologists create

a professional will, including directives on the person designated to assume

primary responsibility, backup personnel, coordinated planning, office security

and access, easy to locate schedule, avenues of communication, client records

and contact information, client notification, colleague notification, professional

liability coverage, attorney for professional issues, and billing records

and procedures.

The phrase “reasonable efforts” reflects awareness that some events are unpredictable

and even the best-laid plans may not be adequate when services are interrupted.

The phrase “unless otherwise covered by contract” recognizes that there may be

some instances when psychologists are prohibited by contract with a commercial or

health care organization from following through on plans to facilitate services.

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132——PART II ENFORCEABLE STANDARDS

HOT TOPIC

Goodness-of-Fit Ethics for Informed Consent

to Research and Treatment Involving Adults

With Impaired Decisional Capacity

An outgrowth of the person-centered care movement has been growing recognition that adults with cognitive

disorders have rights, including the right to make decisions related to their own health care, independent living,

financial management, and participation in research (McKeown, Clarke, Ingleton, & Repper, 2010). The process of

obtaining informed consent presents unique ethical challenges for mental health treatment and research involving

adults with schizophrenia, developmental disabilities, Alzheimer’s disease, and other disorders characterized

by fluctuating, declining, or long-term impairments in decisional capacity. The heterogeneity of cognitive strengths

and deficits within each of these diagnostic groups means that judgments about each individual’s decisional

capacity cannot be based solely on his or her diagnosis (Kaup, Dunn, Saks, Jeste, & Palmer, 2011; Pierce, 2010).

Obtaining informed consent from these populations raises a fundamental ethical question: How can psychologists

balance their ethical obligation to respect the dignity and autonomy of persons with mental disorders to make

their own decisions with the obligation to ensure that ill-informed or incompetent choices do not jeopardize their

welfare or leave them open to exploitation (Fisher, 1999)?

Legal Status, Diagnostic Labels, and Consent Capacity

Some adults with serious mental disorders have been declared legally incompetent to consent. Removal of a

person’s legal status as a consenting adult does not, however, deprive him or her of the moral right to be

involved in treatment or research participation decisions. For these adults, APA Ethics Code Standard 3.10b

requires that psychologists obtain the appropriate permission from a legally authorized person and provide an

appropriate explanation to the prospective client/patient or research participant, consider such person’s preferences

and best interests, and seek the individual’s assent.

The implementation of ethically appropriate consent procedures is more complex for the many situations

in which individuals diagnosed with neurological or other mental health disorders retain the legal status of a

consenting adult, though their capacity for making informed, rational, and voluntary decisions may be compromised.

Each person with a serious mental disorder is unique. Sole reliance on a diagnostic label to determine

a client’s/patient’s capacity to make treatment or research participation decisions risks depriving persons

with mental disorders of equal opportunities for autonomous choice.

Fitting Consent Procedures

to Enhance Decisional Capacities and Protections

Thomas Grisso and Paul Appelbaum (Appelbaum & Grisso, 2001; Grisso & Appelbaum, 1998) have developed

the most well-known model of consent capacity for clinical research and treatment. Based on a psycho-legal

perspective, it consists of four increasingly complex consent components: choice, understanding, appreciation,

and reasoning. This model has given rise to several empirically validated instruments (Dunn, Nowrangi, Palmer,

Jeste, & Saks, 2006). However, in the case of Alzheimer’s Disease for example, practitioners do not agree on

the salience of these components for deciding a client’s/patient’s consent capacity (Volicer & Ganzine, 2003).

From an ethical perspective, assessing capacity is a necessary but insufficient basis for determining whether

an individual should be granted or deprived of the right to autonomously consent to treatment, assessment,

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Chapter 6 Standards on Human Relations——133

or research. In her Goodness-of-Fit Ethics (GFE) for informed consent, Fisher argues that the burden of consent

capacity must be shared by psychologists and the individuals from whom consent is sought (Fisher, 2002a,

2002b, 2003). According to GFE, just and respectful informed consent processes require psychologists not only

to identify the consent strengths and vulnerabilities of the specific individuals or groups with whom they will

work, but also to take responsibility to create consent procedures that can minimize vulnerabilities, enhance

consent strengths, and provide consent supports when feasible (Fisher, 2005b; Fisher & Masty, 2006; Fisher &

Ragsdale, 2006; Fisher & Vacanti-Shova, 2012).

Goodness-of-Fit and Components of Consent

This section describes the four components of Grisso and Appelbaum’s model and discusses how the informed

consent process can be enhanced through goodness-of-fit procedures.

Choice

Evidencing a choice reflects the ability to actively indicate consent or dissent. For example, some adults

suffering from catatonia or Parkinson’s dementia may be unable to communicate a choice verbally or nonverbally.

While these individuals may understand some of the consent information presented and may have a

participation preference, their inability to communicate agreement or dissent will require stringent safeguards

against harmful or exploitative consent procedures.

In such settings, creating a goodness of fit between person and consent context often requires respectful

inclusion of a consent surrogate who has familiarity with the patient’s preference history. The proxy can help

ensure that the consent decision reflects, to the extent feasible, the patient’s attitudes, hopes, and concerns.

Once proxy consent has been obtained, respect for personhood and protection of individual welfare requires

psychologists to be alert to patient expressions of anxiety, fatigue, or distress that indicate an individual’s dissent

or desire to withdraw from participation.

Understanding

Understanding reflects comprehension of factual information about the nature, risks, and benefits of treatment

or research. When understanding is hampered by problems of attention or retention, psychologists can

incorporate consent enhancement techniques into their procedures such as incorporating pictorial representations

of treatment or research procedures, presenting information in brief segments, or using repetition. Person–

consent context fit also requires identifying which information is and is not critical to helping an individual

make an informed choice. For example, when seeking consent for a behavioral intervention for aggressive

disorders in a residence for adults with developmental disabilities, it may be important for clients to understand

the specific types of behaviors targeted (e.g., hitting other residents), the reward system that will be used

(e.g., points toward going to movies or other special activities), and who will be responsible for monitoring the

behavior, for example, residential staff (Cea & Fisher, 2003; Fisher et al., 2006). Although individuals should be

informed about the confidentiality and privacy of their records, psychologists should consider whether it is

important to limit the right to make autonomous decisions to only those individuals who understand details

of residential policies regarding the protection of residents’ health records, especially if the confidentiality

protections do not differ from those that are a natural and ongoing part of the residential experience.

Appreciation

Appreciation refers to the capacity to comprehend the personal consequences of consenting or dissenting

to treatment or research. For example, an adult with a dual diagnosis may understand that treatment will require

limiting aggressive behavior but not appreciate the difficulties he or she may have in adhering to the behavioral

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134——PART II ENFORCEABLE STANDARDS

rules. An individual suffering from schizophrenia may understand that clinical research is testing treatment

effectiveness but may not appreciate that he or she has a disorder that requires treatment.

A sliding-scale approach based on the seriousness of personal consequences of the consent decision can

be helpful in evaluating the ethical weight that should be given to the client’s/patient’s or prospective research

participant’s capacity for appreciation. For example, understanding may be sufficient for consent decisions to

standard or experimental interventions that present minimal risk and are supplemental to current treatment

programs. On the other hand, appreciation may be essential when the treatment or experimental intervention

may expose the individual to the risk of serious side effects or offer an opportunity to receive needed services

not otherwise available.

Reasoning

Reasoning reflects the ability to weigh the risks and benefits of consent or dissent. For example, an adult

with schizophrenia with paranoid features may understand the nature of a treatment and appreciate its potential

for reducing his anxiety but may reason that the risks outweigh the potential benefits because the psychologist

offering the treatment is part of a government conspiracy to undermine his freedom. There is also

preliminary evidence that severe empathic deficits may confound reasoning about research participation even

when other cognitive skills are preserved (Supady, Voelkel, Witzel, Gubka, & Northoff, 2011). At the same time,

psychologists should be cautious about the legal consequences of erroneously assuming that paper-and-pencil

assessments of reasoning associated with decisional capacity are sufficient to evaluate “performative capacity”

defined as the ability of individuals to perform particular tasks (Appelbaum, 2009).

Asking individuals with questionable reasoning capacity to select a family member, friend, or other trusted

person to be present during an informed consent discussion can be empowering and avoid the risk of triggering a

legal competency review solely for the purposes of a single mental health treatment or research participation decision

(Fisher, 2002a; Fisher et al., 2006; Roeher Institute, 1996).

Consent and Empowerment

People with long-standing, declining, or transient disorders related to decisional capacities may be accustomed

to other people making decisions for them and may not understand or have experience applying the concept

of autonomy. In institutional contexts, individuals with mental disorders may fear disapproval from doctors or

residence supervisors or feel that they must be compliant in deference to the authority of the requesting psychologist.

Some may have little experience in exercising their rights or, if they are living in a community residence,

may be fearful of discontinuation of other services. Baeroe (2010) has described current approaches to

competency evaluations and surrogate consent in health care settings as arbitrary and inconsistently applied.

She questions whether the capacity decision of a single practitioner and the health care decision of a single

guardian are sufficient means of respecting patient autonomy, particularly for individuals with borderline

decision-making capacity. While recognizing the potential strain on institutional resources, she recommends a

“collective deliberation” for hospitalized patients with ambiguous capacity that would include the patient, his

or her guardian, health care workers with specific knowledge about the patient, and patient advocates.

To empower and respect the autonomy of patients or prospective research participants, psychologists can

study the nature of consent misconception among diagnostic groups and use this knowledge to develop brief

interventions to enhance consent capacity (Cea & Fisher, 2003; Fisher et al., 2006; Kaup et al., 2011; Mittal et al.,

2007). Modifying the consent setting to reduce the perception of power inequities, providing opportunities to

practice decision making, demonstrating that other services will not be compromised, and drawing on the

support of trusted family members and peers can strengthen the goodness of fit between person and consent

setting and ensure that informed consent is obtained within a context of justice and care.

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