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1. established between the injury and the negligence or improper conduct.

We are not aware of any suits brought against supervisors by trainees for inadequate supervision. It is more likely that supervisors would be involved in legal action as a codefendant in a malpractice suit (Snider, 1985) based on the alleged inadequate performance of the supervisee.

Therapists’ (and supervisors’) vulnerability is directly linked to their assumption of professional roles. When they take on the role of therapist or supervisor, they are expected to know and follow the law, as well as the profession’s accepted practice and ethical standards. Also, professionals seem to have difficulty in judging peers’ or sometimes even supervisees’ competence (Forrest et al., 1999; Haas, Malouf, & Mayerson, 1986; Wood, Klein, Cross, Lammers, & Elliot, 1985), and are reluctant to report known ethical violations of peers or supervisees (Bernard & Jara, 1986; King & Wheeler, 1999) as well as to exercise their responsibilities as gatekeepers (e.g., Johnson et al., 2008), as noted earlier.

Sociological factors also contribute to the increase in lawsuits against helping professionals. Cohen (1979) suggests three primary factors for the increase—factors that are at least as relevant today: (a) a general decline in the respect afforded helping professionals by clients and society at large; (b) increased awareness of consumer rights in general,; and (c) highly publicized malpractice suits for which settlements were enormous, leading to the conclusion that a lawsuit may be a means to obtain easy money. All these factors increase the likelihood of potential lawsuits (however spurious) against the practitioner (however ethical). As Williams (2000) observes, there is little that therapists or supervisors can do to totally protect themselves from persons who attempt to use the court for

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disturbed or vengeful reasons. At the same time, there are some precautions that professionals can take, and these are covered later in this section.

Although failure to warn potential victims accounts for a very small number of legal claims (Meyer et al., 1988), the Tarasoff case has made this issue highly visible. It also involved a clinical supervisor, and thus introduces the concept of vicarious liability, or respondeat superior (literally, “let the master answer”). Following the discussion regarding the duty to warn, therefore, we review salient issues with respect to direct and vicarious liability.

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The Duty to Warn. The duty to warn stems from Tarasoff v. Regents of the University of California, 1976, a landmark case in which a university therapist believed that his client (Poddar) was dangerous and might do harm to a woman who had rejected Poddar’s romantic advances (Tatiana Tarasoff). Because Poddar refused voluntary hospitalization, the therapist notified police to have him taken to a state hospital for involuntary hospitalization. The police spoke to Poddar and decided that he was not dangerous.

On the advice of his supervisor, who feared a lawsuit for breach of confidence (Lee & Gillam, 2000), the therapist did not pursue the matter further. Poddar did not return to therapy. Two months later, Poddar killed Tarasoff. Although most mental health professionals believe that the Tarasoffs won this case based on the duty to warn, actually the court only determined that they could file a suit on these grounds. Rather, the case was settled out of court (Meyer et al., 1988). Furthermore, the Supreme Court of the State of California actually heard the Tarasoff case twice and articulated the duty to protect at this second hearing (Chaimowitz, Glancy, & Blackburn, 2000). Chaimowitz et al. argue that the duty to warn, therefore, must be assessed as it relates to the duty to protect, and that warning an intended victim may be insufficient to meet the duty to protect. They also note that there may be times that warning an intended victim could actually exacerbate a tenuous situation. In short, these authors suggest that more than a knee-jerk decision to warn is called for. Rather, they suggest a reasoned strategy that holds the duty to protect at its center.

The duty to warn and protect has become a legal standard for all mental health professionals and has become the law in several states. It is imperative, then, for supervisors to inform supervisees of conditions under which it is appropriate to implement the duty to inform for the protection of an intended victim(s). Two issues are embedded in this duty: (a) assessing

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the level of dangerousness of the client and (b) the identifiability of potential victims (Ahia & Martin, 1993; Lee & Gillam, 2000). The practitioner and supervisor are not expected to see the unforeseeable; there is no foolproof way to predict all human behavior. Rather, there is an expectation that sound judgment be used and reasonable or due care is taken regarding the determination of dangerousness. For this reason, most authorities on such legal matters strongly advise that both consultation with others and documentation of all decisions are vital in any questionable case.

The second embedded issue emerges when there is some indication that the client might be dangerous, but no potential victim has been named; for example, the client’s hostility might be nonspecific with no particular person in danger. At present, ethical standards and legal experts seem to lean in favor of client privilege unless there is clear evidence that the client is immediately dangerous and there is an identifiable (or highly likely) victim (Ahia & Martin, 1993; Fulero, 1988; Lee & Gillam, 2000; Schutz, 1982; Woody and Associates, 1984), which means that therapists and supervisors are not expected to, nor should they, read between the lines when working with clients. Many clients make idle threats when they are frustrated. It is the job of mental health practitioners to make a reasonable evaluation of these threats. In fact, in the eyes of the law, it is more important that reasonable evaluation be made than that the prediction be accurate.

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Direct Liability and Vicarious Liability

Direct liability would be argued when the supervisor’s actions themselves caused harm. For example, if the supervisor did not perform supervision adequate for a novice counselor, or if the supervisor suggested (and documented) an intervention that was determined to be the cause of harm (e.g., suggesting that a client use “tough love” strategies with a child, which resulted in physical harm to the child). Montgomery et al. (1999) found that direct liability is still rare for supervisors, although two reported malpractice suits involved supervision (evaluation of a supervisee and a billing issue). Potentially, all supervision practice standards, including such issues as violation of informed consent, breach of confidentiality, inability to work with cultural differences, or an inappropriate multiple relationships, could lead to a supervisor being found to be directly liable if violated (Maki & Bernard, 2007).

Vicarious liability, however, may represent the clinical supervisor’s worst nightmare. In this case, the supervisor is held liable for the actions of the supervisee when these were not suggested or perhaps even known by the supervisor. In such cases, the supervisor becomes liable by virtue of the relationship with the supervisee, and the supervisor generally is held liable only “for the negligent acts of supervisees if these acts are performed in the course and scope of the supervisory relationship” (Disney & Stephens, 1994, p. 15). Falvey (2002) outlines three conditions that must be met for vicarious liability to be established:

1. Supervisees must voluntarily agree to work under the direction and control of the supervisor and act in ways that benefit the supervisor (e.g., see clients who might otherwise need to be seen by the supervisor).

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2. Supervisees must be acting within the defined scope of tasks permitted by the supervisor.

3. The supervisor must have the power to control and direct the supervisee’s work. (pp. 17–18)

Additional factors that might be used to establish whether an action fell within the scope of the supervisory relationship include the time, place, and purpose of the act (e.g., was it done during counseling or away from the place of counseling?); the motivation of the supervisee (e.g., was the supervisee attempting to be helpful?); and whether the supervisor could have reasonably expected the supervisee to commit the act (Disney & Stephens, 1994, p. 16). Should the supervisor be found guilty based on vicarious responsibility, then the supervisor, if found not to be negligent in subsequent court proceedings, could recover damages from the supervisee (Disney & Stephens, 1994).

Despite these stated parameters, some court cases demonstrate a more far-reaching responsibility for supervisors. For example, Recupero and Rainey (2007) discuss Simmons vs. United States, in which respondeat superior was used to hold a social work supervisor liable for the sexual misconduct of the supervisee. The court argued that the supervisee had mishandled transference, which was ruled as a foreseeable supervision issue. Recupero and Rainey therefore advised that “prudent supervisors aware of this risk, may watch carefully for early warning signs of boundary violation” (p. 192).

Remley and Herlihy (2001) caution that because each legal case is unique, generalizability from one situation to another may be limited. They stress the importance of establishing the amount of control a supervisor has over a supervisee in order to arrive at a judgment of vicarious liability, and indicate that supervisors at the clinical site are more likely to be held accountable for a therapist’s negligence than off-site (e.g., university)

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supervisors. It stands to reason that a campus supervisor who is receiving information about a client seen elsewhere is not being remote, but is fulfilling a role different from that of a supervisor on site. Still, if a campus supervisor should receive information that causes concern, the supervisor should act on the concern, which often entails contacting the site directly. Whereas acknowledging the general principle that more control over the supervisee generally increases the risk of liability for the supervisor, Hall, Macvaugh, Meridith, and Montgomery (2007) argue that supervisor remoteness is not a protection, and that supervisors must be as vigilant as their role dictates.

Moving to the contractual arrangements between supervisor and supervisee, Falvey (2002) speculates that supervisors who received part of a fee paid to a supervisee were more likely to be found vicariously liable, because such a situation clearly benefits the supervisor, meeting one of the conditions for vicarious liability. Finally, Knapp and VandeCreek (2006) observe that supervisors who follow reasonable standards of practice may be unaware of a supervisee’s actions that were contrary to what the supervisor advised or instructed. In which case, Knapp and VandeCreek advise that the supervisor might be exonerated—but that supervisors should not count on such exoneration. In short, relatively close supervision may be the best antidote for a claim of vicarious liability. However, an interesting argument that goes against conventional wisdom: Recupero and Rainey (2007) suggest that the less direct information the supervisor has about the supervisee’s work with the client, the less risk to the supervisor, because they could not be presumed to have all relevant details about the case.

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Preventing Claims of Malpractice

Falender and Shafranske (2004) discuss the fact that there are very specific safeguards that must occur in supervision to reduce the risk of malpractice: (a) supervision on a regular basis, (b) being aware of what occurs in the therapy sessions, and (c) provision of high-quality supervision. Snider’s (1985) guidelines to supervisors to reduce the likelihood of being named as a codefendant in a malpractice suit continue to be relevant today:

1. Maintain a trusting relationship with supervisees. Within a context of mutual trust and respect, supervisees are far more likely to voice their concerns about their clients, themselves, and their work. We add to this the importance also of obtaining behavioral samples of the supervisee’s work (if not through live supervision or videotape review, at least audiotape review), at least some of which were of segments or sessions that were not chosen by the supervisee. U.S. President Reagan famously used the phrase “Trust, but verify” to refer to relationships with the former Soviet Union. Despite seeming an oxymoron, it is a useful concept for supervisors in their work with supervisees as well.

2. Keep up to date regarding legal issues that affect mental health settings and the profession in general. In addition, supervisors must have a healthy respect for the complexity of the law and recognize the need for competent legal aid.

3. If the supervisor is the administrative head of an agency, it is essential that the supervisor retain the services of an attorney who specializes in malpractice litigation. If this is not the supervisor’s decision, the supervisor should ensure that the organization has appropriate legal support.

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4. Supervisors should have adequate liability insurance and be sure that their supervisees also carry it. This does not reduce the chances of being sued, but does, obviously, minimize the damage that could accrue from such an unfortunate experience.

In addition to these admonitions, supervisors are advised to stay current with professional standards of practice and seek consultation with trusted colleagues when necessary (Ogloff & Olley, 1998); establish boundary expectations with supervisees (Recupero & Rainey, 2007); and keep detailed records (Falvey, Caldwell, & Cohen, 2002; Recupero & Rainey, 2007; Woodworth, 2000). (Methods of documenting supervision are covered in Chapter 6 .) Finally, helping professionals (including supervisors) must attend to their emotional and physical well-being. Being professionally or personally overextended is too often a precursor to making foolish errors (Woodworth, 2000).

Regrettably, there is little comfort to offer the timid supervisor who is afraid of the tremendous responsibility and potential legal liability inherent in supervision. Short of refusing to supervise, we believe protection for the supervisor lies in the same concepts of reasonable care and sound judgment that protect counselors and therapists, including an awareness and command of the concepts and skills presented in this text. It also includes a commitment to investing the time and energy to supervise adequately and document all supervisory contacts. Ultimately, the most fruitful approach to practice

involves a unique blend of professional wisdom and human wisdom. In addition to some distinct knowledge, skill, and good work habits, healthy, respectful relationships and keen, unencumbered self-knowledge add significant protection to the clinical supervisor. In short, insight, integrity, and goodwill are enormous barriers to professional difficulty. (Maki & Bernard, 2007, p. 363)

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Preparing Ethical Decision Makers Worthington, Tan, and Poulin (2002) identify 31 questionable supervisee behaviors and asked more than 300 supervisors and supervisees (combined) to judge each item on its ethicality. Twenty-eight of the behaviors, ranging from forging a supervisor’s signature on case material (viewed as the most unethical) to gossiping about a conflict with her or his supervisor without discussing the issue in supervision (considered mildly unethical), were viewed as more unethical than ethical. As might be expected, supervisees reported that they engaged in behaviors considered less unethical more often than the most egregious behaviors.

Supervisees, especially at the precertification level, have uneven knowledge and understanding of their ethical responsibilities (see, e.g., Cikanek, McCarthy Veach, & Braun, 2004). The challenge for supervisors and educators, then, is to reduce the incidence of trainee ethical misconduct to the lowest possible levels. This is complicated by the fact that there often are contextual matters to consider, and in some cases one ethical principle (or the moral norms that underlay them) may be in conflict with another.

All moral norms can be justifiably overridden in some circumstances. For example, we might not tell the truth in order to prevent someone from killing another person; and we might have to disclose confidential information about one person in order to protect the rights of another person. (Beauchamp & Childress, 2001, p. 5)

In short, ethical decision making requires more than the rote application of a set of rules. However, most discussions concerning this topic make

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assumptions about human reasoning processes that are not necessarily true. Therefore, we begin this section with a brief coverage of cognitive science research and how it can inform discussions concerning how supervisors and training programs might foster that ethical reasoning.

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Lessons from Cognitive Science

There is consensus in the overlapping literatures of decision making (Kahneman, 2011), cognitive psychology (Anderson, 1995), and moral psychology (Haidt, 2001, 2008; Narvaez & Lapsley, 2005) that people function with dual cognitive processing systems: one system is automatic, fast, effortless, occurs outside awareness, and is more heavily affective; the other system is deliberate, reflective, relies on verbal thinking, and more explicitly cognitive.

There also is consensus that, when making decisions, people tend to be “cognitive misers” (Taylor, 1991) who rely heavily on intuition (e.g., Klein, 2003; Narvaez, 2010; Narvaez & Lapsley, 2005) and the simplifying shortcuts that the use of heuristics provide (see, e.g., Kahneman, 2011; Tversky & Kahneman, 1974). Narvaez and Lapsley (2005) note that “If automatic cognitive processes govern much of the behavior of everyday life, very little human behavior stems from deliberative or conscious thought and far less receives moral deliberation” (p. 143).

Haidt (2001), in fact, makes the cogent argument that moral reasoning typically is a post-hoc construction that people use to justify decisions they have made automatically and outside awareness. Kahneman (2011) offers a complementary perspective. Referring to our automatic cognitive processes as System 1 and to our deliberate and reflective cognitive processes as System 2, he observes

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The way to block errors that originate in System 1 is simple in principle: recognize the signs that you are in a cognitive minefield, slow down, and ask for reinforcement from System 2. . . . Unfortunately, this sensible procedure is least likely to be applied when it is needed most. We all would like to have a warning bell that rings loudly whenever we are about to make a serious error, but no such bell is available. . . . The voice of reason may be much fainter than the loud and clear voice of an erroneous intuition, and questioning your intuition is unpleasant when you face the stress of a big decision. More doubt is the last thing you want when you are in trouble. The upshot is that it is much easier to identify a minefield when you observe others wandering into it than when you are about to do so. (p. 417).

Although these processes are recognized in the more academic domain of moral psychology, they have been less used in the literature on ethical decision making in counseling and psychology. It seems, however, that this work has several important implications for supervisors’ work in helping their supervisees develop ethical decision-making skills. The suggestion that follows certainly applies to supervisees, but is also relevant in the preparation of novice supervisors as well.

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Implications Teaching Ethical Decision Making

The following strategies for helping supervisees develop expertise in ethical decision making roughly approximates Narvaez and Lapsley’s (2005) suggestions for developing what they term moral expertise, a four- step process that begins with immersion in examples and opportunities; it then progresses to attending to facts and skills, practicing moral problem solving, and then integrating knowledge and procedures (p. 159).

Explicitly Focusing on Personal Values. If much ethical decision making occurs automatically, then the decision- maker’s personal values and morality becomes a central consideration. Hansen and Goldberg (1999) assert that professionals are influenced by personal (e.g., political or religious) value