Ethics and Risk Management
- Sebastian Striefel, Ph.D.
- Center for Persons With Disabilities
- Psychology Department
- Utah State University
- Logan, UT 84322-6800
- Table of Contents
- Title Page
- Table of Contents
- Risk Management
- General Adherence Areas
- Difficulties Identifying Risk Areas
- Common Areas for Ethical Complaints/Malpractice Litigation
- Deficit Office Operations
- Sexual Misconduct
- Violation of Confidentiality
- Limits of Confidentiality
- Informed Consent
- Office Procedures
- Client Records
- Release of Records
- Privileged Communication
- Fee Collection Disputes
- Lack of Clinical Sophistication and Ongoing Consultation
- Improperly Conducted Treatment
- Client Loss Due to Evaluation
- Incorrect or Faulty Diagnosis
- Medical Clearance
- Causing Physical Damage
- Death of A Client
- Bodily Injury
- Assault and Battery or Touching the Client
- Slander, Libel, or Defamation of Character
- Involuntary Treatment
- Failure to Warn
- Ten Commandments of Applied Psychophysiology, Biofeedback
- (including Neurotherapy), and Behavior Medicine
- Specific Neurotherapy Applications: Part II
- Training Agencies
- Standard of Care
- Is Neurotherapy an Experimental Procedure?
- Informed Consent
- Being Sensitive
- Being a Supervisor
- Advertising and Public Statements
- State Laws
- Medical and Other Consultation
- Acceptance of Neurotherapy
- Legal Implications
- Changes in Brain States
- FDA Classification
- Harm and Negative
- Responsible and Ethical Vendors
- Table 1 - Most Common Areas for Malpractice & Ethical Complaints
- Table 2 - Items From the Percival & Striefel Survey Which Respondents
- Found Controversial in Terms of Ethicalness
- Table 3 - Ten Samples of Controversial Ethical Items From the Percival and
- Striefel Survey of AAPB Members and Possible Ethical Position
- Figure 1 - Informed Consent Form
ETHICS AND RISK MANAGEMENT: PART I
Do you have written policies and procedures for your practice, including those related to risk management? Have you had them reviewed by an external consultant? Do you use consultation and supervision regularly? Are you careful to accurately document the services you provide? Are you aware of the specific ethical concerns related to neurotherapy? Do you know how an experimental procedure is likely to be defined by a regulatory board? If you said no to any of these questions, you are probably at greater risk than is necessary. This chapter will focus on some risk management areas that seem to result in most ethical complaints and malpractice law suits. The chapter is by no means comprehensive, since that would take a book by itself. If you address the areas covered herein, you can avoid 95-99% plus of the ethical and legal problems that plague providers today. The areas of concern may be different tomorrow; thus, ongoing education is essential. Remember that the overall risk of having problems is very low for those who continue their education, practice prudently and think and act preventively.
The term "risk" refers to the probability of injury, damage or loss (Guralnik, 1980). In the practice of biofeedback (including neurotherapy), behavior medicine, and applied psychophysiology, it means the probability that some behavior will result in injury to a client or that someone will file an ethics complaint or lawsuit against a provider. A provider's behavior can result in damage to his/her reputation, loss of income if clients no longer seek service or if a court finds a provider guilty of negligence, loss of the right to practice if a licensing board finds one guilty of unethical behavior, and loss of energy and emotional turmoil if one must defend ones self against a complaint (Striefel, 1992b). Many more losses or injuries are possible. Some dissatisfied clients have even killed mental health practitioners. These examples clarify how important it is for providers to reduce their risk through skillful management. Management is defined as carefully managing all aspects of treatment (Guralnik, 1980). Thus, risk management means reducing the probability of damage, loss or injury by carefully analyzing the ethical, regulatory and legal risks and managing all aspects of one's professional activities to reduce these risks (Striefel, 1992b; 1992c; 1993). Bennett, Bryant, VandenBos, and Greenwood (1990) have pointed out that most malpractice suits arise from problems which practitioners could have avoided if they learned to anticipate and recognize areas of concern. Similarly, most ethical complaints occur out of ignorance rather than from deliberate acts. Ongoing education via reading chapters such as this one, attending workshops and classes, and using frequent consultation and supervision are all ways for learning to recognize and anticipate potential problem areas.
A good set of written risk management policies and procedures is designed to:
1.Maximize client protection,
2.Minimize the probability of ethical complaints and litigation,
3.Encourage proactive quality control,
4.Minimize the probability of injury and dissatisfaction by clients and others affected,
5.Maximize the probability of ethical and professional behavior by all staff, and
6.Minimize staff stress (Striefel, 1992b; 1995).
Risk management policies and procedures should cover all aspects of one's professional practice; should adhere to the ethical principles of all relevant professional associations, e.g., the Association of Applied Psychophysiology and Biofeedback (AAPB, 1990); should adhere to relevant state and federal laws; should be updated on an ongoing basis; and should be reviewed by a competent external consultant. Consultation from an attorney should be sought when an issue has legal components and/or implications. The reader should be aware that this chapter is not intended to provide legal advice. For such advice, readers should hire an attorney.
Ethical principles are moral principles adopted by an association that provide rules for how members are to behave (Corey, Corey, & Callanan, 1993; Striefel, 1995). Ethics is concerned with identifying and doing what is right. Most professional associations (e.g., AAPB) have ethical principles, provide training so their members can learn the principles, and have a committee to investigate complaints about violations and to enforce the rules. Those providing client services must take the time needed to learn what the ethical principles are and how to implement them in daily practice. Remaining current and competent in ethics, as in practice issues, is an ongoing task.
Malpractice litigation requires that: a) a treatment relationship existed between the service provider and another person, the client; b) the service provider's behavior was below or deviated from the acceptable standards of care; c) that injury occurred to the client; and d) that the cause of the injury was related to what the service provider did or did not do (Striefel, 1989b). If a client can prove in court that all four components of malpractice law existed, then they can seek financial compensation (Stromberg et al., 1988). If the client was also negligent, if all four components cannot be proven, or if the provider is immune from litigation for some reason (e.g., works for the federal government), it is possible that no financial compensation will be awarded.
GENERAL ADHERENCE AREAS
In general terms, risk management requires those engaged in professional practice to know and follow a) the ethical principles of all professional associations to which they belong; e.g., AAPB (1995); b) all relevant state and federal laws; and c) the standards of professional practice relevant to what one does. Biofeedback and behavior medicine are not specific professional disciplines, but rather are treatments provided by members of many disciplines. Thus, it is not possible to provide one list of risks and/or solutions that fit all disciplines using the procedures. Since biofeedback and behavior medicine services are delivered by providers from a multitude of disciplines, the ethical principles, laws, and standards of practice that must be followed, include a component that is common to all biofeedback and behavior medicine service providers and a component that is unique to the provider's specific discipline. Part I of this chapter will, for the most part, focus on those aspects common to most biofeedback (including Neurotherapy), behavior medicine, and applied psychophysiology practitioners. Part II will focus on specific neurotherapy issues.
DIFFICULTIES IDENTIFYING RISK AREAS
When an ethics complaint or malpractice suit is filed, it is often difficult to decide if the complaint is related primarily to the practitioner's biofeedback or behavior medicine activities or the activities common to the practitioner's discipline, e.g., nursing. If one were to look only at the complaints filed with a specific group, e.g., AAPB's Ethics Committee, one would have an under-representation of complaints related to activities by practitioners who provide biofeedback services. On the other hand, if one looks at all complaints filed against members of disciplines where biofeedback service is common, one might have a too broad range of risk areas. As such, the reader is cautioned to use common sense and judgement in applying the content of this chapter to one's own professional activities.
COMMON AREAS FOR ETHICAL COMPLAINTS
AND MALPRACTICE LITIGATION
Different authors (e.g., Pope, & Vetter, 1992; Roswell, 1989; Zuckerman & Guyett, 1991) have listed different, but overlapping, areas in which the filing of ethical complaints and malpractice litigation is common for psychologists. For practical purposes, these areas of concern apply to practitioners engaged in applied psychophysiology, biofeedback, and behavior medicine and can be divided into four major areas, each with subparts (see Table1). The four areas are, a) deficient office operations and records, b) lack of clinical sophistication and ongoing consultation, c) causing physical damage, and d) other (Zuckerman & Guyett, 1991).
Table 1 appears about here
Deficient Office Operations and Records
One should take great care in setting up the policies and procedures for operating one's office and for dealing with client records. The key to good practice is for each practitioner to always behave responsibly, in all professional activities; to practice only in areas where one is competent, as demonstrated by training and experience (AAPB, 1995; Striefel, 1990c; 1995); and to show respect for all with whom one comes in contact in one's professional activities (Striefel, 1995). A provider should not try to be all things to all people, i.e., try to serve everyone who is referred. Rather, a provider should learn through self-analysis, feedback from clients, client outcome data, and supervision and consultation both one's limits and one's areas of competence. It can be difficult for a provider to behave responsibly and refer a client elsewhere when the client's problem is outside one's area of competence and one needs more income to make ends meet. Yet, from a risk management and ethical standpoint, that is precisely what a provider should do, because it is unethical not to refer in such a situation. The only other immediate possibility is to arrange for close supervision, if and only if, such supervision will allow the provider to provide services at least at the minimal level of acceptable practice. Specific areas in which providers have difficulties follow.
In a recent survey of AAPB members, Percival and Striefel (1994) reported that 5% of those who responded had engaged in some type of sexual activity with clients. A few even deceived themselves into believing that such behavior is ethical. Such findings are very surprising in view of the large number of articles written which clearly point out that sexual contact is unethical, causes damage to clients, and is the leading cause for malpractice litigation (Percival & Striefel, 1994; Pope, & Vetter, 1992; Striefel, 1989a; 1995; Zuckerman & Guyett, 1991). In addition, virtually every professional health care association's ethical principles specify that sexual contact with clients (and more recently former clients) is unethical. In several states, sexual contact with current or former clients is a felony punishable by imprisonment (Corey, Corey, & Callanan, 1993; Striefel 1989a; 1995).
The "bottom line" is that, sexual contact with clients is unethical under all circumstances. There are no exceptions. In addition, sexual contact with former clients is extremely risky behavior that can result in the loss of one's license to practice, one's BCIA Certification, one's reputation and self-esteem, and many dollars. Each provider should learn to identify behaviors that can result in a breakdown of professional boundaries, such as dwelling on or excessive emotional responses to sexual attraction, non-erotic contact, and socialization with clients (Striefel, 1989b). Practitioners should seek professional consultation or therapy at the first signs that the professional boundaries are being breached or that a dual relationship has begun. Pope, Sonne, and Holyroyd (1993) and Striefel (1989a) have provided information on sexual attraction and feelings and what to do in such situations.
Violation of Confidentiality
Confidentiality is essential to all therapeutic relationships in biofeedback (including Neurotherapy), applied psychophysiology, and behavior medicine. Clients find it difficult to enter meaningful treatment if they cannot trust that what they say will remain confidential.
Limits of confidentiality. Professionals have an ethical obligation, and often a legal obligation to protect the confidentiality of all those they serve, including, clients, students/trainees, and research subjects. Most people like to talk about what they are doing, partially as a stress reducer, partially to socialize, and sometimes because they are excited about what they are doing. Unfortunately, this natural behavior of talking often results in violations of confidentiality.
There are only a few situations in which a provider can ethically and/or legally violate a client's right to confidentiality. The general rules are: a) when more harm is likely to occur to the client or others if client confidentiality is not breached, e.g., when a client is suicidal or intends to harm others (legal duty to warn and protect in some state laws), b) when breaking confidentiality is required by law, e.g. every state requires health care professionals and others to report suspected and/or actual child abuse and neglect, c) when the client, although informed, still engages in behavior that requires breaking confidentiality, e.g., does not pay his/her bill; thus requiring the use of a collection agency or uses his/her mental condition as a legal defense, and d) when a provider’s right to protect him/ herself becomes relevant because the client initiates legal or ethical action against a provider (Striefel, 1995).
Informed Consent. Clients should be informed about the limits of confidentiality, conditions under which a provider will breach confidentiality, according to informed consent procedures, early in treatment--preferably before or during the first session. By being informed, a client has a choice of what s/he chooses to reveal or not reveal that could result in confidentiality being violated.
Informed consent requires that: a) the client has all of the information a reasonable person would want about the advantages and disadvantages of the proposed activity (e.g., treatment, assessment, collection procedures) and possible alternatives; b) the client gives his/her consent voluntarily without coercion; and c) the client is competent to give consent (Striefel, 1989b; 1995). For minors and others with questionable competence, it is important to get informed consent from a parent, guardian, or advocate. Informed consent should be ongoing, because it provides an opportunity to increase collaboration with the client (Bongar, 1991), and should cover all aspects of treatment, not just the limits of confidentiality. Informed consent should be obtained for assessments, diagnosis, treatment and changes in treatment procedures, touching, applying biofeedback sensors, release of information, fees, billing, and the use of collection agencies (Striefel, 1990a). The informed consent process reduces risk for a provider only if all three requirements of the informed consent process are met for each client. Informed consent should be documented in writing. See Striefel's articles for specific details (Striefel, 1990a; 1995). Figure 1 includes a sample informed consent form which readers may copy and/or adapt.
Figure 1 appears about here
Office Procedures. It is important that care be taken in all aspects of office operations to assure that client confidentiality is protected. All employees, as a condition of employment, should be educated about the importance of confidentiality, and should sign an informed consent statement agreeing to protect client confidentiality in all of their activities. They should also sign an agreement to follow the ethical principles of AAPB and those of other relevant professional groups.
Client last names should not be called out in a waiting room. Instead, some other procedure that protects client confidentiality should be used; for example, when clients arrive, a receptionist can attend to what the client looks like and thus match the client’s face with his or her name. When it is the client’s turn for service, the receptionist can go to the client and say something like, "Please come with me." Having clients sign in on a common log on which the names of other clients are visible is a violation of confidentiality. Having them sign a card on which there are no other names is not.
It is also important that clients not be able to overhear telephone calls, verbal messages, or what goes on in the treatment rooms, especially if names or other identifiers are used. Offices can be soundproofed or White Noise used. Staff can be trained to hand other staff written messages and not to use client last names when speaking on the phone.
Some readers may see such attention to detail as "overdoing it", but failure to attend to detail has cost many a professional his reputation, his license, and many dollars. Proactive behavior is less stressful than reactive behavior.
Client Records. Client records need to be protected to prevent breaches of confidentiality. As such, a provider should have access only to the records of his/her own clients and not to those of other providers. In addition, client records should be kept in a locked records room or locked files that are not accessible to unauthorized personnel, e.g., janitors. Records should not be left face up on a desk where another client or office visitor can read them, nor should the screen of a computer be readable by individuals who have "no need to know". Having a computer face away from the direction of client flow in an office can make a big difference in protecting confidentiality. Computerized client information should be kept on floppy discs that can be locked up or the computer should be lockable to control for unauthorized access. Consultants and other agency staff should have access to identifiable client information only if there is a bona fide "need to know"; in other words, when they are actively involved in the treatment of the client. In 1993, the American Psychological Association published a document called, Record Keeping Guideline which is very useful to providers of health care services (APA, 1993a).
Release of Records
Client information should not be released to other agencies or professionals without a signed release of information form (Striefel, 1989b). The form needs to include some very specific information (see Zuckerman & Guyett, 1991), and the requirements for informed consent should be met. Similarly, a professional should not ask for identifiable client information from another agency without having "in hand" a client-signed release of information form. Do not let some power figure intimidate you into violating a client's right to confidentiality just because s/he is in a hurry and did not take time to get a release of information. Why increase the probability of someone taking action against you just to satisfy someone else? Tactfulness and educating other professionals about your adherence to ethical guidelines can maximize the probability of power figures continuing to make referrals to you. Work out the process before it becomes an issue.
Privileged communication is a legal responsibility, specified in state law, which precludes a professional from releasing confidential client information in any legal proceeding without client consent (Corey et al., 1993; Striefel, 1989b; 1995). The client, not the therapist, owns the right to release or not release certain information. Not all professionals are protected by a privileged communication statute. Know your state law and whether your activities are covered by a privileged communication law, and know what the exceptions are. Lawyers, physicians, clergy, and psychologists are typically covered by such laws, usually within the state licensing laws for their disciplines. Other health care service providers, such as social workers, may also be covered.
The exceptions to privileged communication vary from state to state, but typically include: a) when conducting an activity for the court, b) when the client has initiated a lawsuit against the therapist, c) in a civil action wherein the client introduces his mental or physical status as part of his case, d) when the client is a minor (e.g., sexual abuse), and e) when the client gives permission (Striefel, 1989b; 1995). When in doubt, do not give it out (Striefel, 1989b; 1995).
Fee Collection Disputes
Fee collection disputes result in the filing of many ethical complaints and lawsuits against providers (Zuckerman & Guyett, 1991). Whenever possible, determine a client's ability to pay before initiating services (Bennett et al., 1990), i.e., be sure the client understands and agrees to your fees. Doing so will prevent later frustration when a client cannot afford to pay your fee. It is also important to obtain informed consent concerning your fees, billing practices (e.g., third-party billing), and collection procedures, so clients can decide before receiving services if they want to enter services under the conditions you have specified.
It is important for service providers to know the laws of their state concerning billing, bill collection, insurance, and paying or receiving referral fees. Knowing relevant Federal Trade Commission, Medicare, Medicaid, and specific insurance company regulations is also important. Billing procedures that do not comply with the law can result in prosecution for fraud (Harrison & King, 1993). Letting a client accumulate large unpaid bills and then putting on pressure to collect is very high risk behavior (APA, 1993b). It has been said that this is almost a sure way of having the client file an ethical complaint or malpractice suit against the provider. Establish procedures that do not let clients accumulate large bills for services, and follow them carefully. It might be useful to have an attorney and another practitioner review those procedures for possible problem areas.
Honesty in diagnosis, billing, insurance reimbursement, and other aspects of practice is essential. Dishonesty, such as signing as a provider when one was a supervisor, billing insurance companies for client "no shows", or changing the diagnosis to collect from third-party payers, may be fraud and subject to heavy fines and/or criminal prosecution. Billing clients directly for "no shows" may be acceptable pending any agreements you may have with the insurance company that allows you to bill the client directly. Fraud is grounds for the loss of one's professional license, BCIA Certification and membership in AAPB. In addition, failure to be honest when using experimental procedures can result in problems. At least a dozen individuals doing neurotherapy have had difficulty with state licensing boards around issues of how they described the services and potential benefits of the EEG services provided (Striefel, 1997). Because many health care providers and members of licensing boards have varying definitions of what is considered experimental or verified by the research literature, it is important to use caution when using controversial procedures. AAPB’s Board in September 1997 established a committee to evaluate the issues related to clinical efficacy in biofeedback to help practitioners deal more effectively with such issues.
It is also helpful to try to educate other professionals about the utility and support for the procedures you use. Doing so can help reduce problems. If in doubt, consult with a knowledgeable expert before making claims that might be considered problematic by other professionals (Clayton & Bongar, 1994). Learn and use the appropriate codes for biofeedback and other client service billings. Small (1991) has written an excellent book related to collection of third-party payments.
If a client does not pay her/his bill, a provider should not stop services abruptly. Proceeding with caution in trying to negotiate a payment schedule is appropriate. A provider should take care in ending services because payments are not being made, to assure that the client does not file an abandonment charge against the provider (Arnold Conner, 1994). A client still in need of services at termination should be so informed, should be given the names of several referral sources, a follow-up reminder of options should be sent, and all these steps should be carefully documented in the client's file.
Many providers are now accepting credit cards for service payments, as a way to assure a positive cash flow and for avoiding fee disputes.
Lack of Clinical Sophistication and Ongoing Consultation
Ongoing education, supervision, and consultation are becoming more and more critical to professional survival (Striefel, 1990b). It is almost impossible for the typical practitioner to keep current on all the literature; therefore, it is useful to attend periodic workshops, belong to professional groups (such as AAPB), and one's state association (e.g., biofeedback chapter), and to use ongoing supervision as methods of maintaining and enhancing one's professional skills. Providers are ethically required to become and remain competent in all areas in which they practice. Each time a provider tries to provide services in an area in which he/she is not competent, he/she is behaving unethically and is taking unnecessary risks (Clayton & Bongar, 1994).
Improperly Conducted Treatment
Improperly conducted treatment is likely to occur when: a provider is not aware of the treatment(s) of choice for a particular problem; fails to obtain informed consent, especially for experimental procedures; delivers incompetent service because of incompetence, fatigue, or personal problems; practices in an area not appropriate for one's license (e.g. providing services in an area belonging to a medical doctor [M.D.] when one is not an M.D.); a provider does not have a backup or emergency procedure in place; and when a provider makes an inappropriate referral or termination.
Practitioners should practice only in those areas in which they are competent by training and/or experience (Clayton & Bongar, 1994). An acceptable alternative is when one has sufficient supervision and/or consultation available for dealing with any situation that arises. The supervisor should be on site, so potential problems can be avoided or their impact reduced. One should not agree to provide supervision outside one's own areas of competence (Striefel, 1990b).
Client Loss Due to Evaluation
Zuckerman and Guyett (1991) reported client loss due to an evaluation is the cause for about 11.8 percent of professional liability claims against psychologists. Such claims may account for either higher or lower percentages of claims against applied psychophysiology, biofeedback, and behavior medicine practitioners.
Biofeedback, applied psychophysiology, and behavior medicine practitioners are often called upon to conduct an evaluation and/ or provide treatment to clients who have suffered injuries on-the-job or in other accidents. Failure to identify an injury that a client insists s/he has suffered can result in the client not obtaining secondary benefits, e.g., worker's compensation. It can also result in a negligence lawsuit. Dissatisfied clients often initiate action against their service providers (Bennett et al., 1990). As such, it is essential, from a risk management viewpoint, to seek consultation whenever one conducts a difficult evaluation or where the "stakes" are high for a client (Clayton & Bongar, 1994). Working with clients of another culture, without appropriate training or supervision, can also be problematic.
Incorrect or Faulty Diagnosis
Misdiagnosis has been defined by Stromberg et al., (1988, p 453) as a "failure to recognize the patient's condition and to carry out proper measures before harm occurs." As such, preventing a misdiagnosis implies that: a) one should not operate outside of one's area of competence, b) one should seek consultation and/or make a referral elsewhere when in doubt, c) one should be sensitive to situations in which a client is not making progress or seems to be getting worse, and d) one should take corrective action if a misdiagnosis has occurred. In accepting referrals from others where a diagnosis has already been made, it is important for the provider to verify that the diagnosis is accurate. This verification can involve additional assessments by other professionals, if the assessments are outside the boundary of acceptable practice for one's own discipline. Blindly accepting another provider's diagnosis without reviewing it for accuracy may be negligence. Lawsuits for improper diagnosis are more common in medicine than in mental health (Stromberg et al., 1988). Applied psychophysiology, biofeedback, and behavior medicine often fall somewhere inbetween physical medicine and psychotherapy, depending on ones discipline. One's ability to diagnose should be equal to that of other competently trained providers, if one wishes to avoid claims of malpractice. Other sources (e.g., Schwartz, 1995) discuss the importance of a good history and evaluation of the client in making an accurate diagnosis, so those factors will not be discussed here.
Common areas of misdiagnosis that have resulted in lawsuits include client/patient suicide, harm to third parties by the client after release from a hospital, and suits alleging wrongful commitment to a mental health facility. Diagnoses that can be problematic for those engaged in applied psychophysiology, biofeedback or behavior medicine depends on the individual provider's discipline, years of experience, and previous workups of the client and his or her problems. Accurate diagnosis is critical.
A misdiagnosis for the purposes of collecting from a third-party payor is both unethical and is fraud. Great care should be taken to make an accurate diagnosis and to diagnose only in areas appropriate to one's license, e.g., psychologists should make diagnoses only in areas listed in the Diagnostic and Statistical Manual-Revised (DSM-III-R, APA, 1987). Making a diagnosis in an area that falls in the jurisdiction of another profession, e.g., diagnosing migraine headaches, if not a physician, can, depending on state laws, result in charges of practicing medicine without a license.
Practitioners who are going to make a diagnosis should be competent in all of the skills necessary for making an accurate diagnosis. When in doubt, consultation or referral elsewhere are good risk management practices. Additional training can also be useful.
Medical Clearance. Applied psychophysiology, behavior medicine and biofeedback providers who are not physicians need to understand and appreciate the role of physicians, in terms of accurate diagnosis and appropriate treatment when physical complaints are presented by clients. It is important that providers form a working relationship with physicians. First, to assure accurate diagnosis when physical complaints, such as headaches and pain, are the presenting symptoms. Obtaining medical clearance helps assure that one does not provide an intervention, such as biofeedback, when a medical intervention is the treatment of choice. For example, medical intervention is called for when headaches are caused by a brain tumor. Providing neurotherapy because one did not get medical clearance would be malpractice.
Second, in some situations, it is good practice to get medical clearance even when the presenting problem seems to be psychological in nature. For example, acute anxiety attacks can be caused by medication reactions. Third, some interventions, such as relaxation training and biofeedback, can produce physiological changes that require medications to be reduced or eliminated. Examples of such conditions include diabetes and hypertension. As such, providers should coordinate and communicate regularly with appropriate physicians. A good physical, including specific procedures, can help rule out medical causes for problems that a provider in applied psychophysiology, biofeedback or behavior medicine might be asked to treat. Getting a signed statement from the physician that says there is no medical reason why a client cannot undergo a particular treatment can be most useful, should later questions arise. A failure to consult, as needed, could lead to a legal conclusion of negligence in a malpractice lawsuit (Clayton & Bongar, 1994). Document all consultations in the client's file.
Causing Physical Damage
The probability of the following three issues causing risk management problems for an applied psychophysiology, biofeedback or behavior medicine provider is dependent on the provider's professional discipline. The occurrence of problems related to causing physical damage can be largely avoided by being competent and by planning for how to avoid difficulties. Again, consultation, supervision, and written policies and procedures are critical.
Death of A Client
The death of a client is likely to be a risk for those service providers who operate within the context of mental health and counseling services. It is also a risk for clients who are experiencing extreme physical pain on an ongoing basis. It is important that providers be aware of any duty to warn or protect laws that exist (Corey et al., 1993; Striefel, 1995). These laws, often called the "Tarasoff Doctrine", generally require certain mental health service providers, such as psychologists, to take specific actions if they become aware of or suspect that a client is dangerous to self (suicidal) or others. If a client commits suicide and someone thinks the provider could have prevented it, then a lawsuit might be filed because of negligence. Those treating hospitalized clients are at greater risk than those treating outpatients. Providers should know the laws of their state and should seek consultation, including legal, when a potentially dangerous situation arises. Be sure to establish a lawyer-client relationship when consulting with a lawyer. If you do not, the lawyer could be required to testify against you in court proceedings, because the privilege communications law in such cases requires the establishment of a lawyer-client relationship. Stromberg et al., (1988) provided some detailed and useful information on the topic that would help in making decisions that could prevent death or injury. The death of a client due to suicide can also be very traumatic for service providers. Bongar (1991) provides a consultation model for reducing the likelihood of client suicide.
Applied psychophysiology and biofeedback providers should assure that their service environment and the equipment they use are hazard-free. Frayed cords, uncalibrated equipment, and line voltage equipment with defective optical isolators, could result in client injury. Periodic inspection of one's work environment, equipment, electrodes, etc., by competent personnel can prevent problems from ever arising. Desai (1992, San Antonio) suggested that all biofeedback equipment be checked for safety and calibration at least once per year by someone like an electrical engineer. Doing so can prevent leakage, electrode burns and other injury to clients. Computerized equipment should have power surge protectors and optical isolators to prevent house current from accidentally reaching a client through the equipment or electrodes. If a client is injured (e.g., complains of burns from electrodes), they should be sent to a dermatologist for an exam and treatment, if needed, probably at the provider's expense. A sincere apology is also helpful in preventing further agitation by the client. Agitated clients often file lawsuits or ethical complaints. If an injury occurs to a client, the provider should go into a preventive or protective mode (Bennett et al., 1990) and seek legal counsel. Careful documentation of the facts of the situation is also useful. In addition, other documentation, e.g., maintenance records on equipment safety checks, can be useful in counteracting accusations of negligence, assuming such service is received and recorded regularly. In lawsuits involving equipment related injuries, it is very likely that the equipment vendor will be named as a codefendant. Check to be sure that the vendor carries product liability insurance, so that if the product was defective, you as a provider are not held liable. A provider is responsible both for what they do and what they fail to do.
Assault and Battery or Touching the Client
Touching a client to attach electrodes or to check their pulse or breathing without their permission can result in charges of assault and battery. It can also result in the filing of ethical complaints of sexual misconduct. Such complaints have been filed against biofeedback service providers. Before you touch a client, be sure you have informed consent and that such touching falls within the confines of what is considered common practice for biofeedback providers of the same discipline. The touch allowed for a gynecologist (not without risk) doing an examination of a patient is very different from that allowed for a social worker doing urinary incontinence biofeedback using an anal or vaginal sensor, electrode or peritonometer. Knowing the standards of accepted practice and adhering to them can prevent many problems. Showing a client how to insert a vaginal sensor using diagrams can preclude the need to touch the client or otherwise invade their sense of decency. Using a same-sex assistant with client permission can also be appropriate in some cases. If you have physical contact of any type with a client, and it was shown on public television to your family or colleagues, would you be embarrassed? If so, it is probably inappropriate contact.
Although it should not need to be said, assault and battery of a client in the traditional sense (i.e., an intentional physical or verbal attack or beating) is illegal, unethical and unprofessional, so do not do it. It is important to remember that assault and battery charges are for intentional, not negligent acts. As such, they are generally not covered by professional liability insurance (Stromberg et al., 1988). All applied psychophysiology, biofeedback, and behavior medicine service providers should seriously consider carrying good professional liability insurance and should know what is covered. AAPB and other professional associations have arranged with insurers to make such coverage available to their membership. Often, liability insurance will not cover an individual if an ethics complaint is filed that does not include a civil lawsuit. Know what your insurance covers. Woody (1988) provides very useful information about legal liability safeguards.
Three other categories that place psychologists at risk were mentioned by Zuckerman and Guyett (1991). These categories could also place some applied psychophysiology, biofeedback, and behavior medicine providers at risk; thus, they follow. In addition, there are many other situations that can place providers at risk; some of these will also be mentioned. The reader should remember that risk management must remain flexible and ongoing, since new areas of concern are always occurring.
Slander, Libel, or Defamation of Character
Defamation occurs when one harms another's reputation, so others in the community might not want to deal or associate with the person. When this harm occurs because of written statements, it is called libel. When it occurs because of verbal statements, it is called slander. Providers should be careful not to make any false statements about a client or another provider. Since good, ethical providers never violate a client's right to confidentiality without justifiable cause, they in fact, do not make statements about their clients to anyone, right? This should be a true statement; unfortunately that is not always the case. Providers should be cautious about what they put in a client's file, on an insurance claim, or release to other agencies. No careless labels should be used, e.g., calling someone an alcoholic versus describing them as having difficulty in controlling their use of alcoholic beverages, are two different things. Being sure that the statements one makes (orally or in writing) are accurate, non-inflammatory, and kept confidential is what is expected of the service provider.
Except for minors, it is very unlikely that applied psychophysiology and biofeedback will be provided involuntarily. Obtaining informed consent precludes the possibility of accusations of involuntary treatment, if the informed consent meets the requirements previously specified (i.e., it's informed, voluntary, and the person is competent to give consent). The failure of a client to protest about a form of treatment cannot be assumed to be equal to having given informed consent. Since applied psychophysiology and biofeedback involve the learning of voluntary self-regulation skills, it is unlikely that treatment will be successful if the client does not participate.
Failure to Warn
The responsibility to warn an intended victim of possible harm is a part of the duty to warn and protect laws that exist in some states. Providers should know what their state law is and to what discipline(s) it applies. Any service provider could become aware of a client's intent to injure or kill another person, although it is more likely for those also providing mental health services. When in doubt, legal and collegial consultation should be sought immediately, perhaps while the client is still in the office. As such, a provider needs to know in advance (written policies and procedures) who they would contact and how they would do so. Care must be taken to assure that the client does not catch the provider unaware by picking up the telephone or walking into the space where the provider is making the call. The best procedure may be to involve the client in the process.
Additional information on miscellaneous areas in which complaints have been filed against service providers can be found by looking in the literature published by the professional association for one's own discipline. Some references for psychologists, for example, include: Pope and Vetter (1992); APA (1993b) and Bennett et al., (1990). See also Striefel's (1995) chapter in Schwartz's (1995) book on biofeedback. Each of these publications discusses areas in which complaints have been filed, problematic areas, or provides lists of risk management activities. Bennett et al., (1990) list 31 areas that a psychologist should have addressed to minimize risk. Many of the areas apply directly to the 57% plus membership of AAPB whose primary discipline is psychology, but they also apply to many other AAPB members, applied psychophysiologists and those engaged in the practice of behavior medicine. Areas such as competency, consent to treatment, therapeutic contact, interrupted therapy, and terminating treatment have been discussed by several authors (APA, 1993; Bennett et al., 1991; Stromberg et al., 1988; Striefel, 1990c; 1992a; Zuckerman & Guyett, 1991). Readers are referred to these sources for more information. Percival and Striefel (1994) surveyed the membership of AAPB regarding many ethical issues. Over 60% of the 536 respondents were unsure about whether 29 of the items (see Table 2) were ethical or unethical. One should review items from this list that are relevant to one's practice, so one can develop and use appropriate policies and procedures. Readers should review the items included in that survey to assure that they can recognize and deal with such situations appropriately. Table 3 provides some possible solutions for 10 of the controversial items from the Percival and Striefel (1994) Survey.
Tables 2 & 3 appear about here
TEN COMMANDMENTS OF APPLIED PSYCHOPHYSIOLOGY,
BIOFEEDBACK (INCLUDING NEUROTHERAPY) AND BEHAVIOR MEDICINE
1. Thou shalt not practice applied psychophysiology, biofeedback or behavior medicine without first and foremost protecting the welfare of those served.
2.Thou shalt avoid problematic dual relationships with clients.
3.Thou shalt not release client information without client permission.
4.Thou shalt not engage in treatment activities without obtaining informed consent from client on all aspects of practice.
5.Thou shalt not practice in areas where thou art not competent by training and/or experience, unless appropriate supervision/consultation are available.
6.Thou shalt not practice without keeping good documentation and records.
7.Thou shalt not practice without emergency backup procedures.
8.Thou shalt not engage in libel or slander of clients or other professionals.
9.Thou shalt not allow physical harm to occur to clients or others.
10.Thou shalt not practice applied psychophysiology, biofeedback or behavior medicine without adherence to the appropriate Ethical Principles and Standards of Conduct, e.g., the Ethical Principles of Applied Psychophysiology and Biofeedback.
SPECIFIC NEUROTHERAPY APPLICATIONS: PART II
Neurotherapy is relatively new as treatment approaches go; thus, providers need to give more attention to risk management issues than might be necessary in more widely accepted treatment procedures. Specific risk management, professional conduct and ethical guidelines for neurotherapy have yet to be published. As such, prudent providers will apply the risk management, professional conduct and ethical guidelines of their professional discipline (if they have one), the professional associations to which they belong, along with those of any group that licensed or certified them in any area of health care practice. In addition, they will join relevant associations to access their guidelines, continuing education offerings and general information about changes in the practice environment. The guidelines for providing neurotherapy, as yet, are not that different from those that exist for other areas of health care practice. However, the risk for providers may be greater for several reasons, including:
1. Managed care is negatively impacting the income of many health care providers; thus, a few are likely to engage in behaviors motivated by their desire to protect their income. Such providers are likely to scrutinize the activities of other providers, especially those engaged in newer treatment approaches like neurotherapy whose client flow is increasing. Any deviation from the expected standard of care (as defined by that provider) is likely to result in a report to a licensing board or ethics committee. Of course, some reports will occur because a provider is deviating from the expected standard of care.
2. Neurotherapy providers may be so enthusiastic about the results that they are seeing with clients that they fail to use good judgement in designing advertisements, e.g., making claims that may be difficult to support with published research literature.
3. New treatment approaches that have the possibility of generating large incomes, attract some providers who are greedy and/or who are not sufficiently enough trained to provide competent services. Unethical, unprofessional or negligent behavior by any neurotherapy provider has the potential of negatively influencing all neurotherapy providers. Neurotherapy providers must help educate and police the activities of other neurotherapists to help assure competent services.
4. Newer treatment procedures are always resisted by those engaged in more traditional treatments. In addition, providers engaged in those newer treatments are often held to a higher standard of care, e.g., neurotherapy for treatment of attentional deficit disorders is expected to have been shown in a double blind study, even if not appropriate or possible to do (Lubar, 1993). In addition, some providers believe that neurotherapy should be proved on the basis of the medical model, although that model does not seem appropriate (Othmer & Othmer, 1995).
5. Some providers truly believe that neurotherapy is not a bona fide treatment and become concerned about protecting the welfare of clients. As such, they may talk to or write letters to neurotherapists or licensing boards to try to protect clients against what they think is very experimental. They might be responding to their ethical responsibility to help police their profession. Some of these individuals are amenable to changing their position if given information, especially if it is made clear that clients are informed that a procedure is experimental.
Several issues specific to neurotherapy to which providers should attend will be discussed in the sections that follow.
Providers should be sure that they are competent in any area in which they intend to serve clients. Attending one weekend or even week-long workshop is not sufficient for making an individual competent to practice neurotherapy. To be competent means a neurotherapist has the knowledge, skills and abilities needed to perform the tasks relevant to neurotherapy and to understand when it is appropriate to provide neurotherapy or refer a client elsewhere (Bennet et al., 1990). The neurotherapist should be able to provide the service at least at the minimally acceptable level at which it is provided by other competent neurotherapists. The amount of reading and training needed varies from individual to individual, depending on several factors, e.g., the amount of knowledge and experience one has in human physiology and health care treatment. Besides knowledge and training, a new neurotherapy provider will want to arrange for peer review (Woody, 1988) of advertisements, brochures, informed consent documents and of his/her evidence of competence. Someone knowledgeable and competent in neurotherapy and in the standards expected by ethics committees and licensing boards should conduct this peer review.