Help Needed

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1. tudy (Lamb & Catanzaro, 1998) found no such correlation. 2. The rate of supervisor–supervisee sexual contact is substantially

lower than that between educators and students, and seems to be dropping over time. In the Lamb and Catanzaro (1998) study, 1.5 percent of psychologists reported having been sexually involved with a supervisee; for Lamb, Catanzaro, and Moorman (2003), that figure was less than 1 percent. However, neither study focused specifically on people who were supervisors, so the rates are likely higher. For example, 4 percent of the Lamb et al. (2003) respondents reported that as supervisees, they had been involved sexually with supervisors. Encouragingly, Zakrzewski’s (2006) data from psychology graduate students showed the rate to be less than 0.5 percent, and none of the supervisees in the Ladany et al. (1999) study reported sexual involvment with a supervisor, although 1.3 percent reported inappropriate sexual discussions.

Expectations about the ethical implications of such supervisor–supervisee sexual relationships now are much clearer than a few decades ago. All relevant ethical codes for the mental health professions, for example, make some reference to multiple relationships between supervisors and supervisees. Moreover, accreditors and others now are monitoring to ensure that programs have written grievance procedures and that students are aware of them. Presumably, these efforts are having a positive effect on the extent to which faculty and supervisors are becoming sexually involved with students and supervisees.

Whereas this discussion has focused so far on incidence of sexual contact, there are related issues that must also be considered. Sexual issues between supervisors and supervisees have been addressed in several ways in the professional literature and are separated here for discussion,

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followed by nonsexual relationships that could involve boundary crossing or violations.

Sexual Attraction.

Sexual attraction between supervisors and supervisees is common. Rodolfa, Rowen, Steier, Nicassio, and Gordon (1994) found that 25 percent of interns in postdoctoral internship sites reported feeling sexually attracted to their clinical supervisors, and Ellis and Douce (1994) identify sexual attraction as one of eight recurring issues in supervision.

Significantly, however, Ladany et al. (1996) found that 9 percent of supervisees were unwilling to disclose to their supervisors their attraction to either their clients or the supervisor. Ladany and Melincoff (1999) found as well that 10 percent of supervisors chose not to disclose their own attraction to their supervisees. Yet addressing these issues is important, because as Ellis and Douce (1994) warn, acting on sexual attraction in supervision results in “calamity.”

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Sexual Harassment.

Sexual harassment is a different matter than attraction. Expecting or requesting sexual favors or taking sexual liberties with their supervisees is a clear abuse of the power afforded supervisors by their professional status, is unethical, and clearly falls into Pearson and Piazza’s (1997) category of the predatory professional. Sexual harassment can be insidious and subtle, leaving the victims doubting themselves (Anonymous, 1991) or manipulated into the role of caretaker (Peterson, 1993). Moreover, the role modeling this provides future therapists is toxic (Corey, Corey, & Callanan, 2003).

Supervisors also should be sensitive to the possibility that their supervisees can be sexually harassed by their clients. DeMayo (2000) found that 45 percent of the experienced supervisors he surveyed recalled at least such one incident. Most supervisors reported that they discussed the incident in supervision, helped the supervisee clarify events, and assisted the supervisee in establishing firm boundaries with the client. At other times, they held a joint session with the client; transferred the client to another therapist; or, in extreme cases, they took action to ensure the safety of the supervisee.

DeMayo suggests that all supervisees should have a conceptual framework for understanding harassment in therapy, ranging from understanding that sexualized feelings are commonplace to trusting their “gut” feelings of harassment. He also reiterates the suggestion of others that supervisors who are candid and self-disclose with their supervisees are more likely to hear about these important incidents from their supervisees.

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Intimate Committed Relationships.

A minority of intimate relationships that begin within supervision far outlive the supervisory relationship (Lamb et al., 2003). Many of us, in fact, know at least one dual-career couple whose relationship began while one was in training and the other had supervisory status. Yet it is not possible to know in advance which relationships will evolve into these long-term ones, and so all the cautions we offer above pertain to entering such a relationship. Moreover, even should a clear firewall be created that would preclude the former-supervisor-now-intimate-partner from having any evaluative role with respect to the supervisee, these relationships can cause problematic ripple effects in a training program. Other trainees or interns, for example, may well feel resentful at the special status one of their own now enjoys. And if there are performance problems with the supervisee, it can create awkwardness between the former supervisor and his or her colleagues who are left to do the evaluations.

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Nonsexual Multiple Relationships.

Lloyd (1992) charges that some professional writings have created “dual relationship phobia.” In fact, we noted earlier that it is common for supervisors and their supervisees to have multiple relationships (see, e.g., Aponte, 1994; Clarkson, 1994; Cornell, 1994; Goodyear & Sinnett, 1984; Gottlieb et al., 2007; Lamb Catanzaro, & Moorman, 2004; Magnuson, Norem, & Wilcoxon, 2000; Ryder & Hepworth, 1990) that are not necessarily problematic.

However, Kolbert, Morgan, and Brendel (2002) found that, in general, students were more cautious about multiple relationships with faculty and the possibility of exploitation than were faculty. However, it does appear that supervisors are aware of these issues and working to handle them appropriately. Lamb et al. (2004) found that a large percentage of supervisors they surveyed discussed with their supervisees not only social interactions, but also additional collegial relationships.

One type of ethically problematic multiple relationship that warrants particular notice is doing therapy with one’s supervisee. Because supervisees’ personal issues emerge in supervision, supervisors often are faced with the challenge of determining where supervision ends and therapy begins. Many authors (e.g., Bridges, 1999; Burns & Holloway, 1989; Green & Hansen, 1986; Kitchener, 1988; Patrick, 1989; Stout, 1987; Whiston & Emerson, 1989; Wise, Lowery, & Silverglade, 1989) recommend that supervisors be clear from the outset that personal issues might be activated in supervision and, if these issues are found to be substantial, that the supervisee will be asked to work through them with another professional; any therapy-like work with the supervisee should be (a) very limited and (b) linked specifically to helping the supervisee address a particular treatment issue occurring with a client.

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Preventing Supervisor Transgressions. As implied in our earlier discussions, there are multiple relationships on a behavioral continuum (Dickey, Housley, & Guest, 1993), from nonproblematic to extremely inappropriate and unethical. Neither end of the continuum causes much confusion among clinical supervisors. Soberingly, Erwin (2000) found that supervisors displayed less moral sensitivity when dealing with issues in the middle areas; as Peterson (1993) calls it, “the murky pool of ambiguity” (p. 1).

Gottlieb et al. (2007) also address the complexity of the issue, making the point that supervisees frequently rate as their best supervisors those with whom they eventually developed positive personal relationships. In fact, many applicants to training programs are looking for programs in which they will be mentored in a fashion that feels as personal as it does professional, but this fact does not alter the “slippery slope” about which supervisors must remain vigilant.

Gottlieb et al. admonish that the greater the number of relationships with a supervisee, the more risk of boundary violation. Therefore, they suggest that supervisors ask themselves if any new relationship is really necessary. Will it be beneficial to the supervisee? Will it compromise the primary supervision relationship? They also advise supervisors to remain only in evaluative relationships with supervisees. Therefore, having a supervisee as a course teaching assistant should pose no serious issue. Finally, they suggest that public supervision (i.e., live supervision or group supervision) be used as well as individual supervision when there are multiple relationships to help reduce the risk of boundary violations.

Ladany et al. (2005) advise supervisors to take inventory of their own relationship biases. What types of persons do they find attractive? Do they prefer supervisees who are dependent, or who are autonomous? Are they

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pulled more by students who exhibit vulnerability, or who are self- confident? They argue that such an a priori assessment helps prepare the supervisor for attraction to a supervisee if it occurs.

Koenig and Spano (2003) propose an educational approach to assist supervisees similar to that suggested by Hamilton and Spruill (1999). They argue instead that sexual attraction should be normalized and suggest that supervisor training should include a comprehensive review of human sexuality and the interconnectedness of its various parts: sensuality, intimacy, sexual identity, reproduction, and sexualization. They also argue that through modeling and parallel process, dealing effectively with these issues in supervision improves supervisees’ ability to address sexual dynamics in therapy as well.

Multiple relationships represent the broadest category of ethical challenges for the supervisor. Although the mental health professions have evolved in their understanding of multiple relationships, there is still much that calls for judgment one situation at a time.

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Example :

Vanessa has been a marriage and family therapist at an agency for 6 months. Gary, one of the other three therapists in the agency and the only other single therapist, is her clinical supervisor. It will take Vanessa 2 years under supervision to accrue the experience she needs to be eligible to sit for the state licensing examination for her LMFT. One evening, Gary calls Vanessa to inquire whether she would like to go to a day-long workshop with him. The speaker for the workshop specializes in a kind of therapy in which Vanessa has expressed interest. Vanessa accepts and the workshop turns out to be an excellent professional experience. On the way home, Vanessa and Gary stop for dinner. Vanessa picks up the tab to thank Gary for including her.

The following day, Vanessa is sharing some of the experiences of the workshop with Camille, another therapist at the agency. When Camille asks, “Isn’t Gary your supervisor?” Vanessa feels defensive and misunderstood. Later that day, Vanessa decides to go to her agency director and ask his opinion of the situation. He tells her not to be concerned about it, and that Camille “worries about everything.” During her next supervision session, Vanessa chooses not to mention either conversation to Gary.

Is Gary in danger of violating the principle of avoiding multiple relationships? Has he already violated this principle? Was Camille’s reaction appropriate? The agency director’s? How do you evaluate Vanessa’s choice to talk to her agency director? To not apprise Gary of the conversations with Camille and the agency director?

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Example :

Derek is a training director at a university counseling center. Gail is his new supervisee. Derek works hard to establish a positive working alliance with his supervisees. He believes it is important to establish a good relationship early in supervision. Gail ended the second supervision session asking Derek if he had a family. He told her that he was separated from his wife and had one small child. After the session, he was aware that his answer disclosed more than it needed to. He is also aware that he finds Gail very attractive and realizes that he will need to be careful about this. At the next supervision session, Gail arrives without any tape to review. She also seems to hold eye contact longer than in past sessions and is dressed in a manner that Derek finds extremely attractive. Derek decides not to push the issue of Gail coming without a tape and they spend the majority of the session continuing to get to know each other. After the session, hindsight again makes Derek feel uncomfortable about how the session transpired. He wonders if the attraction is mutual.

How should Derek proceed at this early juncture? How can he be sure that he is not projecting his own feelings onto Gail? What interventions should he consider? What if he is correct, and he and Gail are mutually attracted to each other? Is this grounds for transferring Gail to another supervisor?

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Example :

Sharon is a good therapist. In her work with Jeanne, her supervisor, she has been very open and unguarded. Sharon had a very troubled past and she has struggled hard to get where she is. A couple of times Sharon shared some of her personal pain with Jeanne during intense supervision sessions. Sharon and Jeanne feel very close to each other. In the past couple of weeks, Sharon has not looked well. She’s jumpy and short with Jeanne. When Jeanne pursues this change in behavior, Sharon begins to cry and tells Jeanne that she has recently returned to an old cocaine habit. She begs Jeanne not to share her secret, promising that she will discontinue using the drug. She also asks that she be allowed to continue seeing clients.

How is power being negotiated in this example? How does each person stand to be damaged by this relationship? Has Jeanne been inappropriate up to this point? What should Jeanne do at this point to be ethical?

Example :

Margaret is a school counselor who has been assigned a trainee from the local university for the academic year. As she observes Noah working with elementary school children, she is increasingly impressed with his skills. She asks him to work with Peter, a 9-year-old, who has not adjusted well to his parents’ recent divorce. Again, she is impressed with Noah’s skill, his warmth and understanding, and ultimately, with the success he has in working with Peter. Margaret is a single parent who is concerned about her 9-year-old son. She decides to ask Noah to see him. Noah is complimented by her confidence in him. Margaret’s son attends a different school, but she arranges to have Noah see him after school hours.

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How is Noah vulnerable in this example? How is Margaret’s son vulnerable? If Noah had had second thoughts about this situation, what are his recourses for resolution?

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Supervisor and Supervisee Competence

We all remember the feelings we had when we saw our first client. We might have doubted the sanity of our supervisor to trust an incompetent with such responsibility. If our work was observed, it was even worse. (I recall a nightmare in which I am electrocuted by my audio recorder as I try to record my first counseling session!) For most of us, those feelings waned with time, helped by the encouraging feedback our supervisors provided and the accumulation of experience. Of course the relationship between felt- and actual competence is imperfect (see, e.g., Dawes, 1994), but we grew in both—and most of us continue to do so as we engage in new interventions and incorporate emerging knowledge into the work we do.

As supervisors, we have the dual obligations of being competent in our role of supervisor and of ensuring our supervisees’ competence. We discuss each responsibility in turn next.

Supervisor Competence Various authors offer lists of very specific competencies that supervisors should develop (see especially Borders, Bernard, Dye, Fong, Henderson, & Nance, 1991; Falender et al., 2004). However, the simplest and most molar perspective is that there are two broad competence areas for supervisors: (a) knowledge and skills to provide the type of services one’s supervisees are providing, and (b) knowledge and skills in supervision itself (see, e.g., Barnett, 2010; Falender et al., 2004; Roth & Pilling, 2008; Supervision Interest Network, 1990).

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Competence in the Area Being Supervised. It seems obvious that a supervisor should be competent in the area of supervisee work for which they are providing oversight. The finding of Rønnestad, Orlinsky, Parks, and Davis (1997) that psychologists’ self- ratings of therapeutic skill strongly predicted their confidence as supervisors seems relevant to this point. However, self-ratings of competence are not always completely valid, and so supervisors are wise to have a clear sense of the kinds of cases that they would either not supervise or that they would supervise only under certain conditions (e.g., for a limited number of sessions; for the purposes of referral; as suggested by Hall, 1988a, and Sherry, 1991, with the aid of a consultant).

Most supervisors realize that they cannot be all things to all people, yet they are tempted to ignore this wisdom when a supervisee wants to gain some experience in an area in which the supervisor is unfamiliar; and sometimes, the supervisor simply may have difficulty determining the sufficiency of his or her competence (e.g., Stratton & Smith, 2006). This is an instance in which metacompetence, discussed in Chapter 1 (see Falender & Shafranske, 2007; Roth & Pilling, 2008), is important.

Metacompetence and the corresponding task of ongoing self-reflection are important, for example, with respect to multicultural competence (ACA, 2005; D’Andrea & Daniels, 1997; Gonzalez, 1997; Lopez, 1997; Pack- Brown & Williams, 2003; Sherry, 1991; Vasquez, 1992). We discuss this issue of multicultural competence in greater detail in Chapter 5 .

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Competence in Supervision. We discussed in Chapter 1 the expectation that supervisors should develop supervision-specific competence, receiving formal preparation in that domain. This means not only becoming knowledgeable about supervision theory and research, but also receiving supervision of initial supervisory experiences, just as novice therapists are supervised for their work with clients before they are deemed sufficiently competent to function autonomously. In their use of the ethical standards of the ACES Ethical Guidelines for Counseling Supervisors (Supervision Interest Network, 1993) to examine the work of field supervisors, Navin, Beamish, and Johanson (1995) found that the most frequent infraction was the failure to have formal training in supervision.

Supervision training lessens the likelihood of inadequate supervision, which is synonymous with incompetent supervision—and therefore unethical. Ellis, Siembor, Swords, Morere, and Blanco, (2008) found that “an astounding 59% of participants stated that they received inadequate supervision in their current supervisory relationship, in another supervisory relationship, or both” (p. 6). They used a measure with items that included

the following:

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I end up supervising my supervisor.

Supervision is a complete waste of time.

My supervisor does not know what to do in supervision.

My supervisor is frequently distracted during supervision sessions.

My supervisor does not listen to me.

(pp. 10–11)

Finally, we note that supervisees typically know a great deal more about their supervisors’ clinical competence than they do about their supervisory competence. Therefore, Kurpius, Gibson, Lewis, and Corbet (1991) suggest that supervisors develop a professional disclosure statement that informs supervisees of the nature and extent of the supervision training they have obtained. This seems to be an important component of informed consent for supervision.

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Remaining Competent. Competence is not static. In fact, knowledge half-life in the mental health professions has been estimated to be roughly 10 years, depending on the specific type of knowledge (Cronbach & Snow, 1977; Dubin, 1972; Vandecreek, Knapp & Brace, 1990). Therefore, it is important—even an ethical obligation—that supervisors continue to read the professional literature, attend professional meetings, and participate in workshops (Campbell, 1994).

Lichtenberg and Goodyear (2012) make the point that once professionals complete formal training programs, they then must become autodidactical (Candy, 1991), taking responsible for their own learning. Some of this learning occurs incidentally, as we come across new ideas and knowledge just by chance; an important but unreliable means to maintain current knowledge. Some occurs through more intentional and informal means as we seek out new information, often in response to a situation that left us puzzled or otherwise uncomfortable. The third type of learning concerns continuing education activities. All are important mechanisms for maintaining competence.

Of course, supervisors have the dual obligations of maintaining their competence both in the clinical domains they are supervising and in the domain of supervision itself. For supervisors to obtain routine feedback from supervisees about their work provides them with essential feedback to aid their continuing professional development, helping them identify areas in which they might profit from additional competence development.

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Example :

Dwayne has been a licensed psychologist in private practice for more than 20 years. His therapeutic approach is primarily psychodynamic. Dwayne receives a call from a small group practice consisting of mental health counselors and marriage and family therapists. They are looking for a psychologist who wants to contract with them for supervision. Their interest is mostly that the psychologist be able to evaluate certain clients for possible referral to a psychologist or a psychiatrist. Dwayne has never supervised anyone and is ready for a new challenge. He makes an appointment to meet with the staff of the practice group.

What are the competency issues embedded in this example? If Dwayne decides to take this group on, what must he consider in order to be ethically sound? What conditions for supervision are advisable? As you understand it, is this arrangement legally defensible?

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Developing and Monitoring Supervisee Competence. Being a competent supervisor means, by definition, being able to enhance the competence of their supervisees. It also means that supervisors are responsible for helping their supervisees develop self-evaluation skills (Vasquez, 1992), discussed previously as self-supervision (Dennin & Ellis, 2003) or metacompetence (see Falender & Shafranske, 2007; Roth and Pilling, 2008) and is a form of reflective practice (Schön, 1987). Although each of these terms has a slightly different nuance, all speak to the ability to recognize a gap in knowledge and then to seek a remedy, including appropriate consultation or supervision.

In other words, supervisees must become able to determine for themselves when they have crossed a competence boundary. Notably, Neukrug, Milliken, and Walden (2001) found that incompetence was the second most frequent complaint made to counseling licensure boards. Yet, as we discussed in Chapter 10 , the jury is still out regarding a supervisor’s ability to influence the important skill of self-assessment.

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Supervisor as Evaluator and Gatekeeper.

It is impossible to discuss the development of supervisee competence without also considering its verification and the ethical issues that presents. Ladany (2007) correctly notes that “as a field, we have not properly considered the gatekeeping role, and as a result, we are graduating many therapists who have no business functioning in the role as therapists” (p. 395). Brear and Dorrian (2010) cite data from both Forrest et al. (1999) and Gaubatz and Vera (2002) to conclude that any given year, between 4 and 6 percent of students are performing below expected standards of competence. We devote Chapter 10 to supervisee assessment processes, but address it here as an ethical matter.

Many supervisors have a difficult time providing summative evaluations of supervisee competence. That difficulty increases when the summative evaluation will result in adverse consequences to the supervisee, such as dismissal from a training program or failure to become licensed. And yet, supervisors have an obligation both to the supervisee and to the society we serve to handle this responsibility well.

Ladany et al (1999) found that supervisees reported supervisors’ evaluation and monitoring of their work to be their most frequent ethical concern (see Figure 11.1 ). In fact, this was reported at nearly twice the rate of the next most frequently expressed concern. It should be unsurprising, then, that supervisor evaluation of supervisees is a frequent source of ethical complaints (Koocher & Keith-Spiegel, 2008).

Most supervisors were drawn to the mental health professions by a desire to be helpful, which requires maintaining relatively nonjudgmental stances with their clients. When they must be an evaluator, they are faced with a value conflict especially when doing so results in negative consequences to the supervisee (Bogo, Regehr, & Power, 2007); this is “advocacy–

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evaluation tension” (Johnson, Elman, Forrest, Rodolfa, Schaffer, and Robiner, 2008, p. 591). Nelson, Barnes, Evans, and Triggiano (2008) found that most of the “wise supervisors” they studied reported experiencing “gatekeeping anxiety.”

We work closely with our supervisees and grow close to them. Therefore, when really difficult decisions must be made about supervisees, it can be too easy to rationalize that the supervisee’s next supervisor will make that decision; a process Johnson et al. (2008) dubbed the hot potato game (Johnson et al., 2008) or gate slippage, a term Brear and Dorrian (2010) credit Gaubatz and Vera (2002) with coining. As a result, supervisors certify too many people as competent when they are not (Ladany, 2007).

We close this subsection by noting that whereas some low performing students have been described as psychologically impaired, the current convention is to use only the lens of competence. To invoke the concept of impairment shifts the “focus from supervisee professional conduct to ill- advised speculation about personality or other factors hypothesized to underlie problematic supervisee behavior” (Falender, Collins, & Shafranske, 2009, p. 241). Competence is measurable.

Most of these decisions occur within the context of a training program. Significantly, then, Brear and Dorrian (2010) found that approximately half (53 percent) of the counselor and counseling psychology educators they surveyed mentioned a program-wide leniency bias, sometimes augmented by their fear of litigation.

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Example :

Dr. Roark has been supervising Susan, who is repeating a practicum placement in a program-affiliated university clinic. The placement has been one aspect of a remediation plan her program designed for her to address identified competence problems. Whereas she has mastered various theory-related techniques that she always is eager to use with clients, she continues to struggle with basic relationship skills. As she nears the end of this placement, she continues to perform below expectations in that domain—although not by much.

Because this work was being done to remediate earlier-identified problems, an adverse evaluation would endanger her continuing in the program. However, Dr. Roark has personally enjoyed working with Susan, who seems to be trying hard, and he has noticed that she has made some progress on these issues over the time they have worked together. He also knows that were she to complete this placement successfully, her next step would be to pursue and internship where he knows her work would be monitored carefully, and so there would be additional opportunities to help her refine her relationship skills.

What are the ethical issues embedded in this example? If you were Dr. Roark, what decisions would you make that would balance Susan’s rights versus those of the clients she eventually would serve?

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Confidentiality

When asked to identify an ethically problematic issue that had occurred during the previous year, some aspect of confidentiality was the most frequently cited issue by psychologists in a U.S.-based study (Pope & Vetter, 1992) as well as in aggregated studies across multiple countries (Pettifor & Sawchuk, 2006). Similarly, Fly et al. (1997) found that trainees’ most frequent ethical violation concerned confidentiality. Therefore, it seems that the most sacred trust in mental health practice is also the most vulnerable to insult. And as with all therapeutic components, the implications for supervision are more complex still, because it concerns attention both to supervisee information and disclosures and to those concerning the client. We address each of these in turn next.

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Confidentiality with Respect to Supervisee Information and Disclosures. Supervisees in the Ladany et al. (1999) study mentioned supervisor– supervisee confidentiality issues as among the several most common ethical issues they encountered (see Figure 11.1 ), yet ethics codes are silent on this issue. Supervision is essentially an evaluative relationship, and therefore information received in supervision is not typically considered confidential; the gatekeeping responsibility of supervisors may require that supervisors share personal information of supervisees with others. Nevertheless, best practice should include clear guidelines presented to supervisees prior to the beginning of supervision. These guidelines should indicate that the goal of supervision is the professional development of the supervisee, and that personal information will be honored and treated as sensitively as possible.

The trainee might, for example, share some painful aspect of his or her childhood that is affecting his or her response to a particular client’s situation. Absent some compelling reason otherwise, this information should be considered confidential. Most trainees understand that training in a mental health profession may involve grappling with personal issues that affect their work. Still, knowing that evaluative information from supervision may be passed along to faculty and that any particular issue that troubles the supervisor may be discussed with faculty colleagues allows the supervisee to make an informed decision about what to reveal in supervision (Sherry, 1991). It has also been our experience that issues that ultimately must be shared in evaluations are rarely about trainee secrets and more about patterns of behavior that are fairly obvious.

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Confidentiality with Respect to Client Information and Disclosures. The supervisor must ensure that the supervisee keeps all client information confidential except for the purposes of supervision. Because supervision allows for third-party discussion of what is occurring in therapy, the supervisee must be reminded that this type of discourse cannot be repeated elsewhere. In group supervision, the supervisor must reiterate this point and take the extra precaution of having cases presented using first names only, and with as few demographic details as possible (Strein & Hershenson, 1991).

When videotape or live supervision is used with additional supervisees present, the only recourse for the supervisor is to emphasize and reemphasize the importance of confidentiality. When students are asked to tape their sessions, they must be reminded that they have confidential documents in their possession. Notes concerning clients should use code numbers rather than names and be guarded with great care.

Supervisors increasingly use such technologies as video conferencing and asynchronous methods such as email (Abbass et al., 2011; Conn, Roberts, & Powell, 2009; McAdams & Wyatt, 2010; Yozwiak, Robiner, Victor, & Durmusoglu, 2010). These are important tools; however, at the same time, they can raise confidentiality concerns to which supervisors must attend (Barnett, 2011).

There is still some occasional confusion in the helping professions regarding the distinctions between confidentiality, privacy, and privileged communication. Siegel (1979) defines confidentiality as follows: “Confidentiality involves professional ethics rather than any legalism and indicates an explicit promise or contract to reveal nothing about an

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individual except under conditions agreed to by the source or subject” (p. 251). Privacy, the other side of confidentiality, is the client’s right not to have private information divulged without informed consent, including the information gained in therapy. Finally, privileged communication gives privacy legal status, and refers to the client’s right not to have their confidential communications used in open court or revealed to others without their consent. Therefore, “although all privileged communications are confidential communications, some confidential communications may not be privileged” (Disney & Stephens, 1994, p. 26).

Knowing the limits of each of these terms is as serious a responsibility for the clinician as honoring their intent. It is ultimately an individual decision as to when the therapist or supervisor decides to overturn the client’s (or supervisee’s) right of privacy and break confidentiality. However, in a number of cases, legal precedent, state law, or a value of a higher order dictates such a direction. Falvey (2002) reports typical exceptions to privilege as

follows:

When a client gives informed consent to disclosure When a therapist is acting in a court-appointed capacity When there is a suicidal risk or some other life-threatening emergency When a client initiates litigation against the therapist When a client’s mental health is introduced as part of a civil action When a child under the age of 16 is the victim of a crime When a client requires psychiatric hospitalization When a client expresses intent to commit a crime that will endanger society or another person (duty to warn) When a client is deemed to be dangerous to himself or herself When required for third-party billing authorized by the client When required for properly utilized fee collection services (p. 93)

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Because privileged communication is a legal matter, it is always wise to receive legal counsel when confidential information is demanded. Outside court proceedings, many situations fall into gray areas.

The trend in the helping professions seems to be toward a less robust view of confidentiality. This professional obligation seems to be increasingly vulnerable to legal interpretation (Falvey, 2002). It is considered wise, therefore, to make a discussion of confidentiality and its limits a common practice in therapy and supervision.

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Business-Related Issues in Supervision

Past common practice involved the supervisor “signing off” for supervisees, often not because supervision was taking place, but because the supervisor’s credentials allowed for third-party payment, whereas the supervisee’s did not. This practice is, of course, both unethical and illegal. Virtually all (92.5 percent) psychologists who responded to the Pope, Tabachnick, and Keith-Spiegel (1987) survey rated this practice as “unquestionably unethical.”

Supervision of postcertification professionals regularly occurs in some countries and is increasing in the United States (Magnuson, Norem, & Wilcoxon, 2000). It is imperative, therefore, that supervisors stay informed of changes in mental health delivery systems and that they avoid any business arrangements that would prove to be unethical or illegal.

However, other marketplace issues are more ambiguous ethically. For example, should a supervisor accept payment from a supervisee for supervision that will lead to certification or licensure? Under what conditions might this be acceptable? If one is a supervisor for someone outside one’s place of employment, what kinds of protections are necessary for the clients of the supervisee? The supervisee? The supervisor? (Wheeler & King, 2000). How do particular third-party payers affect supervisory practice? What is the implication of supervising counseling services offered over the Internet? (Kanz, 2001; Maheu & Gordon, 2000). In short, the marketplace is changing dramatically as a result of legislation, changes in healthcare systems, and advances in technology. It is the ethical and legal responsibility of clinical supervisors to stay abreast of relevant developments and to assure that supervisees’ practice is consistent with ethical mandates and the law.

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Legal Issues in Clinical Supervision Law is “the body of rules governing the affairs of persons within a community, state or country” (Committee on Professional Practice, 2003, p. 596). One might assume that avoiding litigation in one’s supervision practice is simply a matter of behaving ethically, but as established at the beginning of this chapter, it is not that simple. In fact, it is possible even that sometimes a moral act could subject one to retaliatory litigation.

This section of the chapter, then, addresses several legal issues that are particularly relevant to U.S. supervisors. Some legal issues (i.e., due process and informed consent) are addressed in the section concerning ethics. There are others we are unable to cover in the space here, although they could affect supervisors under U.S. law, and include the Americans with Disability Act and Family Educational Rights and Privacy Act (FERPA) (see Gilfoyle, 2008). We next focus particularly on select issues that could lead to malpractice claims.

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Malpractice

An ethical violation becomes a legal issue only when the aggrieved party makes such a claim (Maki & Bernard, 2007), which means that the difference between a claim of an ethical violation and a claim of malpractice is not determined by the egregiousness of the professional’s behavior, but rather by whether the aggrieved chooses to bring their complaints to a regulatory body or to civil court. In fact, the same claim is often brought to both a regulatory body and to court as a malpractice lawsuit (Montgomery, Cupit, & Wimberley, 1999).

That being said, it is safe to assume that there are far more complaints made to regulatory bodies than there are lawsuits. There are at least two reasons for this: (a) The cost of litigation is a deterrent, and (b) whereas a regulatory body (peer review board) investigates whether the professional breached relevant professional ethics, civil court is quite different. Briefly, a legal complaint is restricted by tort law; therefore, the defendant must be able to prove that the negligence claimed resulted in harm. Many complaints cannot meet such a level of proof.

There are two types of torts (i.e., civil wrongs other than breach of contract): intentional and unintentional (Swenson, 1997). It is highly unlikely that the therapist or supervisor would be sued for an intentional tort. For this to be the case, the supervisor’s or therapist’s motivation would be to cause harm. To illustrate with an unlikely example: a supervisor could decide to be overly critical with a supervisee in order to force the supervisee out of a training program.

Virtually all malpractice cases in the mental health professions, however, are unintentional torts, or negligence cases (Swenson, 1997). Malpractice is defined as

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harm to another individual due to negligence consisting of the breach of a professional duty or standard of care. If, for example, a mental health professional fails to follow acceptable standards of practice and harm to clients results, the professional is liable for the harm caused. (Disney & Stephens, 1994, p. 7)

Similarly, failure to act on serious concerns about a supervisee may be grounds for negligent supervision (Recupero & Rainey, 2007).

Four elements must all be proved for a plaintiff to succeed in a malpractice claim (Ogloff & Olley, 1998):

1. A fiduciary relationship with the therapist (or supervisor) must have been established. Within supervision, this means that the supervisor is working in the best interests of the supervisee and the supervisee’s clients, and not in his or her own interests (Remley & Herlihy, 2001).

2. The therapist’s (or supervisor’s) conduct must have been improper or negligent and have fallen below the acceptable standard of care.

3. The client (or supervisee) must have suffered harm or injury, which must be demonstrated.

4. A causal relationship must be