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The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.
In this article, Michael Griffin, JD, LCSW, discusses ethical standards that are applicable to treatment planning, particularly at the start of treatment with a new client/patient or when a therapist is contemplating changes to a client's treatment plan. The discussion includes a review of various disclosures that therapists are either required or encouraged to provide to their clients.
Michael Griffin, JD, LCSW
The Therapist July/August 2022
Treatment planning is an important element of a client’s treatment. Yet many therapists are unaware of, or overlook, the ethical standards that apply when forming or making changes to a client’s treatment plan. This article reviews ethical standards that are applicable to treatment planning, particularly when a therapist is starting treatment with a new client1 or contemplating changes to a client’s treatment plan.
Issues at the Start of Treatment
When beginning therapy with a new client, every therapist must engage in some kind of “intake assessment” wherein their primary objectives are to identify their client’s concerns and to determine whether, and how, they can provide help. Throughout this process, the therapist must be aware of ethical standards that are applicable to treatment planning.
Client Autonomy and Informed Decision-Making
The CAMFT Code of Ethics conveys an expectation of informed decision-making by clients as well as collaboration between therapists and their clients in the development of treatment plans. As an illustration, Section 3 of the Code states, “Marriage and family therapists respect the fundamental autonomy of clients/patients and support their informed decision-making.” Similarly, Section 1.10 of the Code states, “Marriage and family therapists work with clients/patients to develop and review treatment plans that are consistent with client/patient goals.”2
Whenever treatment planning occurs, it is important for the therapist to ensure that they are “on the same page” with their client. This means that the therapist should remember to document their client’s perspective in the treatment record, particularly in progress notes, which reflect the focus of treatment and its perceived value to the client. Other documentation, such as intake paperwork or questionnaires that invite the client to describe their concerns and provide feedback regarding their treatment, may provide additional evidence of the therapist’s efforts to seek input from their client and support their informed decision-making.
The Code of Ethics identifies specific information that therapists are either required or encouraged to disclose to their clients at the outset of therapy.3 (There are also legally required disclosures, a full discussion of which is beyond the scope of this article).4
Required Disclosure: Fees and Payment Polices
According to Section 12.3 of the Code, prior to the commencement of treatment, marriage and family therapists must disclose their fees and the basis upon which they are computed, including charges for canceled or missed appointments and interest charged on unpaid balances, and provide reasonable notice of any changes in fees or other charges.5 In addition, therapists should be aware that, effective January 1, 2021, the “No Surprises Act” requires all health care professionals and health care facilities that are licensed, certified, or approved by the state (including mental health professionals) to provide a “good faith estimate” of expected charges for services to uninsured and self-pay patients.6
Many therapists find that it is easy to inform clients about fees by including such information in their intake paperwork.7 Because clients often feel stressed when completing such paperwork, they may read the documents quickly or simply sign the forms provided to them without a careful review. It is a good idea, therefore, to review the information contained in intake paperwork with the client to ensure that they have an opportunity to ask questions and have an understanding of all the policies and procedures concerning fees, including cancellation policies and any procedures applicable to the use of insurance. Therapists should also inform patients about any policies relating to the increase of fees (such as a policy of increasing fees annually), and be sure that patients are aware in advance of any anticipated fee changes. In circumstances where the “No Surprises Act” applies, therapists would be expected to provide patients with a new “good faith estimate” that reflects the anticipated fee increase.
Required Disclosure: Availability for Emergencies
Every treatment setting is different, and therapists have varying degrees of availability for emergencies. Nevertheless, Section 3.4 of the Code of Ethics requires therapists to inform their clients of the extent of their availability for emergency care between sessions.
While it is true that therapists are not required to be available for client emergencies according to a preordained schedule, they cannot be entirely out of reach. Any therapist may have one or more clients who are experiencing significant symptoms or crises, or who may be at risk of self-harm. Consequently, it is important for therapists to maintain some availability for emergencies based upon their individual needs and the needs of their clients. It is also a good idea for therapists to arrange for another therapist to serve as a backup, particularly for clients who are at risk and in circumstances where the therapist is going to be away for an extended period.
Regardless of a therapist’s availability, clients should be informed of their options for seeking help in an emergency, including whether, when, and how they can reach their therapist outside of the therapist’s or the treatment center’s ordinary hours of operation. If a therapist determines that a particular client is frequently in need of emergency care, they may consider whether a change in the client’s treatment plan or a referral is necessary to meet that person’s needs. Therapists can easily provide information about their availability in the initial intake paperwork they give to clients and should advise their clients to call 911 or go to the nearest emergency room when there is a danger to health or personal safety.
Required Disclosures: Telehealth
Section 6 of the Code of Ethics requires therapists who use telehealth to “consider the welfare of the client/patient, the appropriateness and suitability of the modality in meeting the client’s/patient’s needs, make appropriate disclosures to the client/patient regarding its use, exercise reasonable care when utilizing technology, and remain current with the relevant laws and regulations.” In similar fashion, Section 6.1 of the Code states, “Prior to utilizing Telehealth, marriage and family therapists consider the appropriateness and suitability of this therapeutic modality in meeting the client’s/patient’s needs and do so competently. In determining the suitability and appropriateness of Telehealth, therapists should consider the client’s familiarity with the modality, the needs of the client, the therapeutic orientation of the provider, and other pertinent factors.” In addition, Section 6.3 of the Code requires therapists to inform clients of the “potential risks, consequences, and benefits of the telehealth modality, including but not limited to issues of confidentiality, clinical limitations, and transmission/technical difficulties.”
Therapists should be aware of legal requirements concerning disclosures when conducting telehealth. Section 1815.5 of the Code of Regulations requires therapists to obtain and document their client’s informed consent at the start of treatment. This involves informing the client of the potential risks and limitations of receiving treatment via telehealth, providing the client with the number and type of their license or registration, and documenting reasonable efforts to ascertain the contact information of relevant resources, including emergency services, in the client’s geographic area. In similar fashion, Section 2990.5 of the Business and Professions Code requires therapists, prior to initiating services via telehealth, to inform their client about the use of telehealth and to obtain verbal or written consent for the use of telehealth as an acceptable mode of delivering health care services.8
Although there are numerous required disclosures when conducting telehealth, they generally reflect the need for a therapist to evaluate and document the appropriateness of telehealth for a client and to document the benefit of this medium for the person in question. While telehealth may be successful with many, or perhaps most, clients, it may be inappropriate in some circumstances, and therapists should take care to document whether the use of telehealth appears to be successful based upon their assessment of the client, the client’s comfort with the medium, and the client’s access to an environment that affords reasonable privacy.
Required Disclosures (when applicable): Therapist Values, Attitudes, and Beliefs
The Code of Ethics requires therapists to consider whether their personal values, attitudes, or beliefs may be a “prejudicial factor in diagnosing or limiting treatment to a client.” This means, for example, that a therapist is expected to consider whether they hold a belief that is likely to interfere with their ability to fairly and objectively assess a client’s needs or provide appropriate, unbiased care. If a therapist determines that they hold such a belief, Section 3.2 of the Code obligates them to disclose this to the client or facilitate an appropriate referral to ensure continuity of care.
The language of this section of the Code clarifies that a therapist is only expected to provide disclosures to a client regarding their personal values, attitudes, or beliefs (or to facilitate an appropriate referral) if the therapist determines that their values, attitudes, or beliefs are a prejudicial factor in diagnosing or limiting treatment to the client.
Required Disclosures (when applicable):
Section 3.11 of the Code of Ethics requires therapists to “discuss treatment alternatives with clients” and cautions therapists not to “limit their discussions of treatment alternatives to what is covered by third-party payers.”
This section of the Code reminds therapists that they are free to advise clients about treatment alternatives that are not eligible for reimbursement by the client’s insurance, such as a specialized treatment program. Therapists should inform clients (and document) why they are making such recommendations and be careful to point out that it is up to the client to decide whether to receive such services.
Recommended Disclosure: Professional Background and Training
Section 3.7 of the Code of Ethics states that marriage and family therapists are “encouraged to disclose to clients/patients, at an appropriate time and within the context of the psychotherapeutic relationship, their experience, education, specialties, and theoretical orientation.”
Although the Code does not require therapists to discuss their professional background, theoretical orientation, and training with clients, it seems reasonable to conclude that providing such information at the start of therapy, such as in the intake paperwork, will be helpful to the client in deciding whether to work with that therapist.
Recommended Disclosure: Limits of Confidentiality
According to Section 3.6 of the Code of Ethics, “Marriage and family therapists are encouraged to inform clients/patients of significant exceptions to confidentiality such as child abuse reporting, elder and dependent adult abuse reporting, and clients/patients who are dangerous to themselves or others.”
Although some therapists provide their clients with an exhaustive list of exceptions to confidentiality, they are not required to do so. At minimum, therapists should provide a general discussion of confidentiality and include information about significant exceptions to confidentiality to ensure that clients, especially those new to therapy, have a good understanding of privacy issues in general.9
The topic of confidentiality can be particularly complex for therapists who work with minors. For this reason, therapists should always carefully discuss the limits of confidentiality with minor clients and their parents at the start of treatment.10
The Duty of Competency
Every therapist has an ethical and legal duty to be competent in working with a client. It is, therefore no small matter that the therapist’s assessment of a client includes a determination that the therapist is competent in working with the client. Section 5.11 of the Code of Ethics provides that “marriage and family therapists take care to provide proper diagnoses of psychological disorders or conditions and do not assess, test, diagnose, treat, or advise on issues beyond the level of their competence as determined by their education, training, and experience.”11
When therapists learn new information about a client, they must contemplate whether they are competent to continue treating that person in light of such information. For example, a therapist may discover that their client is the victim of abuse or has symptoms of a substance use disorder. In such circumstances, the therapist must consider whether they have sufficient knowledge, training, and experience (competency) to continue providing services to the client. Upon consultation with their client, the therapist may determine that continued treatment is appropriate or that it’s necessary to refer the client for evaluation or treatment by another provider.
Treating Multiple Members of a Family System
When providing treatment to more than one member of a family system, therapists should be mindful of Section 3.9 of the Code of Ethics. This section warns that conflicts may arise between the family unit and each individual member of the family and reminds therapists to clarify “at the commencement of treatment and throughout treatment … which person or persons are clients/patients and the nature of the relationship(s) the therapist will have with each person participating in the treatment.”
This section of the Code urges therapists to exercise caution when treating more than one person in a family system. As an example, a therapist may consider treating more than one sibling at the same time. In this situation, each minor child would be an “identified patient,” and the parents may be involved collaterally or participate in family therapy sessions. In determining whether to treat the siblings concurrently, the therapist must evaluate the difficulties that may arise with issues such as confidentiality, jealousy over access to the therapist, or the possibility that the clients are in conflict with one another or have other competing interests. The potential for encountering such difficulties is the reason that therapists should at least consider the involvement of another therapist in this situation. However, the therapist may elect to treat both siblings based upon an evaluation of the children’s needs, the nature of their relationship, and other relevant information, such as their ages. If the therapist decides to treat the children concurrently, it is important to review the parameters of confidentiality with both clients and to maintain separate treatment records.
Providing Concurrent or Sequential Individual, Couple, Family, or Group Treatment
Therapists are free to provide more than one type of therapy to a client, depending on the client’s needs and treatment goals. However, Section 3.10 of the Code of Ethics cautions therapists to “carefully consider potential conflicts when providing concurrent or sequential individual, couple, family, and group treatment” and to “take reasonable care to avoid or minimize such conflicts.”
A variety of ethical conflicts may arise when a therapist provides consecutive or concurrent therapeutic modalities to a client. For example, if a therapist decides to discontinue individual therapy with a client and begin conjoint marital therapy with the client and their spouse, it is important to ensure that the change in treatment is an informed decision by the client. Questions to consider include, Does only the therapist or the client favor the change in treatment modality, or do both parties? Does the client understand that it may not be possible for them to resume individual therapy? Do the client and their spouse understand that the “identified patient” is now the couple? Does the client’s spouse feel comfortable working with the same therapist who provided individual therapy to their partner? Is the therapist able to be objective when conducting conjoint therapy after working with one of the partners individually? In another example, a couple may decide to discontinue conjoint therapy based upon their decision to separate. Later, the therapist may receive a request for individual therapy from one of the spouses. While the therapist is free to work individually with one member of the couple, how should they respond if the client’s spouse makes a similar request? What if the couple reconciles and asks the therapist to resume conjoint treatment? If the therapist agrees to resume conjoint therapy with the couple after treating them individually, will the therapist have any difficulty maintaining boundaries and confidentiality in the conjoint sessions?
Documenting Changes to the Treatment Plan
It is normal for treatment plans to change as they depend on the client’s shifting needs and progress in therapy. Consequently, the focus of treatment may change, or there may be a change in the frequency of visits or the therapeutic modality that is used.
The client’s treatment record is the primary repository of information regarding the therapist’s assessment of their client’s needs and concerns and the treatment provided. The Code of Ethics echoes this sentiment in Section 3.12, which states, “Marriage and family therapists document treatment in their client/patient records, such as major changes to a treatment plan, changes in the unit being treated, and/or other significant decisions affecting treatment.”12 13
Therapists should document their observations of their client’s progress, including the rationale for any changes to the treatment plan. As changes occur, it is important for the therapist to document any discussion(s) they have with their client about the efficacy of treatment, including the rationale for continued treatment (such as the client’s report of continued benefit), and any significant changes to treatment, including termination.
When the therapist and the client agree that they have successfully addressed the goals and objectives of therapy, termination is a likely consideration, unless a decision is made to focus on other issues. The therapist and their client are free to continue to work together for whatever reason they jointly determine, but the treatment record should always include the therapist’s rationale for continued treatment. In some instances, the therapist and their client may question whether it is a good idea to continue the therapeutic relationship. When this occurs, it is important for the therapist to be aware of Section 3.8 of the Code of Ethics, which states, “Marriage and family therapists continually monitor their effectiveness when working with clients/patients and continue therapeutic relationships only so long as it is reasonably clear that clients/patients are benefiting from treatment.”
The fundamental message of Section 3.8 is that a therapist is ethically obligated to consider whether their client is benefitting from therapy. In circumstances where the therapist and the client agree that treatment is productive, the decision to continue therapy is relatively simple unless there are complicating issues such as difficulty with fees or schedules. However, if the therapist or the client believes that therapy is no longer productive, the available choices may be more difficult, particularly when the client would like to continue treatment and the therapist does not agree. In this situation, the therapist may benefit from consultation with a trusted colleague. No therapist relishes the idea of discontinuing a client’s treatment against the client’s wishes, but the information contained in this section of the ethical code may prove helpful to the therapist in explaining their ethical obligation to the client.
The Value of Consultation
There are many circumstances where therapists face difficult or complex decisions concerning the treatment they provide to clients. That is because clinical decisions do not occur in a vacuum; they are made in the light of relevant ethical and legal standards. For this reason, consultation is often helpful, regardless of whether the clinician is a trainee or a seasoned professional. Consulting with a colleague, a supervisor, or a member of the CAMFT legal staff may take up valuable time, but it’s time well spent if it improves a client’s treatment or helps the therapist avoid an ethics complaint, a malpractice lawsuit, or a complaint to a regulatory board.
Michael Griffin, JD, LCSW, is a staff attorney at CAMFT. Michael is available to answer member calls regarding legal, ethical, and licensure issues.
1 The term “client,” as used throughout this article, is synonymous with “patient.”
2 Section 3.10 of the CAMFT Code of Ethics states that “… marriage and family therapists provide adequate information to clients/patients in clear and understandable language so that clients/patients can make meaningful decisions about their therapy.”
3 This article identifies disclosures that therapists are required or encouraged to make according to the Code of Ethics. Therapists are also legally required to provide a variety of information to clients/patients under state and federal laws.
4 See Also, Griffin, Michael, JD, “Revisiting Informed Consent,” The Therapist, Sept. 2006, and “Checklist for Provision of Telehealth in California,” available at www.camft.org. Also see the BBS required notice to psychotherapy clients, which requires disclosure of specified information to clients prior to initiating services, or as soon as practicably possible thereafter: https://www.bbs.ca.gov/ pdf/ab_630.pdf.
5 §4982(n) of the Cal. Bus. & Prof. Code states that it is unprofessional conduct for a marriage and family therapist to fail to disclose to the client or prospective client, prior to the commencement of treatment, the fee to be charged for professional services or the basis upon which that fee will be computed.
6 See, Roscoe, Kristin, JD, and Jasper, Sara, JD, “The ‘No Surprises Act’: What MFTs Need to Know,” The Therapist, Dec. 2021.
7 A variety of information should ordinarily be included in intake paperwork provided to clients, including but not limited to the therapist’s availability for emergencies, the limits of confidentiality, and policies concerning the use of email, texting, and voicemail. It is always a good idea to review this information with clients at the start of treatment. Sample practice forms, including a sample informed consent document, are available on the CAMFT website in the “Private Practice Corner” at www.camft.org.
8 See, Tran-Lien, Ann, JD, “Regulatory and Legal Considerations for Telehealth,” The Therapist, Sept. 2016.
9 Providers that are “HIPAA covered entities” are required to provide clients with a “Notice of Privacy Practices.” Sample notices are available on the CAMFT website in the “Private Practice Corner” under “Sample Practice Forms.”
10 See, Tran-Lien, Ann, JD, “Releasing Records in the Age of Adolescent Consent,” The Therapist, Jan. 2019.
11 §4982(s) of the Cal. Bus. & Prof. Code states that it is unprofessional conduct for a therapist to hold themselves out as being able to perform mental health services beyond the scope of one’s competence, as established by one’s education, training, and experience.
12 See, Griffin, Michael, JD, “On Writing Progress Notes,” The Therapist, March/April 2007 (updated in 2020 by Bradley J. Muldrow, JD).
13 Other relevant resources on the CAMFT website include “Record Keeping, Releasing Records, and BBS Records” (chapter presentation handout) by Luke Martin, JD, and “Avoiding Sour Notes and Broken Records, Guidance for Creating and Maintaining Effective Patient Records” (chapter presentation handout) by Bradley J. Muldrow, JD.
This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.