Summary
The insured LPC was contacted by the father of a ten-year-old boy, to initiate counseling. The child’s parents were in the process of a highly contested divorce. The child was residing with his father, who informed the LPC that he had sole custody. The client’s mother was not involved in the counseling sessions. The LPC requested custody-related documents from the father but moved forward with treatment without receiving the documents. During the course of the divorce proceedings, the father asked the LPC to support him in the custody matter so that he could maintain sole custody of his son, as he believed that that his wife was an unfit mother. He made disparaging comments about his wife to the LPC and conjectured that she was an unfit parent. However, he was unable to demonstrate that there was a legitimate threat to the safety and wellbeing of the minor child. The father also requested that the counselor not discuss the custody matter with his son to avoid upsetting him. The LPC never conducted an independent assessment of the child regarding the mother’s parental involvement, nor did she ever contact the mother to investigate the validity of the father’s accusations. In fact, the mother had made previous attempts to contact the LPC and left voicemail messages stating that she wanted to be involved in the counseling sessions. However, the LPC did not return those calls based upon her belief that the father had sole custody.
In response to the father’s request for support, the LPC voluntarily sent a letter to the court opining that there should be supervision for all of the minor client’s visits with the mother. The LPC stated in the letter that she had concerns about the mother’s parental fitness and that her concerns were based upon her professional judgment as the child’s counselor. Shortly after the letter was sent, an emergency child custody hearing was scheduled by the court. At the hearing, the LPC was surprised to learn that the parents actually had joint custody. In her testimony, the LPC opined that the mother was “unfit” and advised the court that all visits with the mother should be supervised to ensure the safety of the child. As a result of this testimony, a temporary court order for supervised visits was put into place, pending the final divorce hearing.
Shortly after the custody hearing, the mother (claimant) filed a complaint with the State Board of Licensed Professional Counselors (“the Board”). The Board conducted an investigation and determined that the LPC was in violation of state statutes as well as the ACA Code of Ethics. The Board was critical that the LPC’s documentation lacked evidence of a comprehensive mental health assessment of the minor and objective facts to support the LPC’s court testimony regarding custody. A consent order was executed, and the LPC was placed on a one-year probation and ordered to complete continuing education in the areas of child custody and documentation. In addition to the educational requirements, the LPC was required to comply with Board-approved supervision for one-year.
Following the resolution of the Board complaint, the claimant filed a professional liability claim asserting that the unprofessional and unethical conduct of the LPC resulted in a temporary loss of visitation, alienation of affection from her child, exacerbation of depression and public humiliation. In addition, the claimant demanded reimbursement of the legal expenses that she had incurred to defend her interest in the custody matter precipitated by the LPC’s letter to the court.
Risk Management Comments
The LPC stated that it was not her intent to alienate a parent from her child and acknowledged that she failed to follow the proper legal and ethical channels to ensure objectivity and fairness to all involved parties. Counselors are expected to be accurate, honest, and objective in
reporting their professional judgments to appropriate third parties, including courts and recipients of evaluation reports, among others. While counselors have a duty of confidentiality, they are obligated to inform clients and parents/guardians of minor clients, prior to commencement of treatment, regarding exceptions to confidentiality, such as when information will be shared with a third party.
In this case, counseling experts for the defense were critical of the counselor for voluntarily providing subjective and confidential information to the court without appropriate objective validation. The experts further opined that the counselor should have secured a copy of the child custody court order which would have informed her of the joint custody status, thus allowing her to involve the non-custodial parent in the counseling process and treatment plan. Finally, the defense experts also advised that it would have been prudent for the counselor to consult with another counseling professional to obtain a second opinion prior to making the determination that the non-custodial parent was “unfit”.
Resolution
This case had the potential for a high jury verdict, given the emotional factors associated with child custody and loss of parental rights. Integral to the resolution plan of the defense was the fact that the defense experts were unable to support the treatment provided. Based upon the above-referenced defense challenges and diminished potential for a successful defense verdict, a presuit settlement was negotiated in mediation on behalf of the LPC.
Total Incurred: $345,000
(Figures represent only the payments made on behalf of the LPC.)
Risk Management Recommendations for Counselors
- Refer to the American Counseling Association (ACA) Code of Ethics, section C.6.b. when reporting to third parties.
- If a report to a third party is necessary, counselors should be accurate, honest and objective in their reporting.
- Conduct and document a discussion with the client regarding information that may not be protected from release including information relating to child endangerment/neglect/abuse, danger to self or others, and court-ordered disclosures. Obtain signed statements that the client understands these exceptions to privacy and confidentiality protections. These discussions should occur prior to the onset of treatment.
- Obtain the client/parent/guardian’s written and dated authorization for the release of information to named parties-i.e., those with whom the counselor may communicate about treatment-related matters or share client documentation. Renew such authorizations at least annually or if there is a break/lapse/change in treatment.
- Consult with legal counsel before providing any opinions or testimony to a court or court representative. Counselors working with minors in divorce/custody matters may be called as “fact witnesses” which entails providing confidential information gleaned during discussions with the minor client.
- Conduct informed consent with clients and their families when there are role changes, such as when changing from individual to family counseling or from a therapeutic role to an evaluative role, among other types of role changes. Refer to the ACA Code of Ethics, section A.5d. for guidance.
- Know and practice within the counselor’s state-specific scope of practice, and in compliance with standard of care and state licensing/certifying board requirements. If more than one standard of care, law or regulation is involved, the counselor should adhere to the most stringent applicable standard.
- Understand all laws or regulations that govern client interactions, including but not limited to confidentiality and privacy laws. Ignorance of the law, employer policy or professional ethics does not absolve the counselor of the responsibility to act within established clinical, ethical and regulatory guidelines.
- Document contemporaneously, factually and comprehensively and include details regarding client assessments and rationale for treatment choices. Objective and concise documentation is essential for both continuity of care, as well as for the defense of a potential malpractice claim. A comprehensive healthcare information record is the best legal defense.
References
Disclaimer
These case scenarios are illustrations of actual claims that were managed by the CNA insurance companies. However, every claim arises out of its own unique set of facts which must be considered within the context of applicable state and federal laws and regulations, as well as the specific terms, conditions and exclusions of each insurance policy, their forms, and optional coverages. The information contained herein is not intended to establish any standard of care, serve as professional advice or address the circumstances of any specific entity. These statements do not constitute a risk management directive from CNA. This material is for illustrative purposes and is not intended to constitute a contract. No organization or individual should act upon this information without appropriate professional advice, including advice of legal counsel, given after a thorough examination of the individual situation, encompassing a review of relevant facts, laws and regulations. CNA assumes no responsibility for the consequences of the use or nonuse of this information.
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