Alain Montgomery, JD, Staff Attorney
The Therapist
July/August 2018

Last year, California experienced the most devastating wildfire season in its history. There were over 9,000 distinct fires. From Southern to Northern California over one million acres were scorched, forcing the evacuation of millions and resulting in billions of dollars in property damages and the loss of dozens of lives.¹ Marriage and family therapists (MFTs) throughout California have stepped up to participate in addressing the immediate and ongoing mental health care needs of disaster survivors through connecting impacted individuals to basic resources, as well as providing outreach, psychoeducation, psychological first aid, and crisis counseling. For example, the CAMFT Redwood Empire chapter continues to offer support to those who lost property or loved ones in the 2017 wildfires through free trauma-informed workshops and has enlisted therapists who are willing to offer their services to those affected by the fires. Whether responding to the trauma inflicted by a weather catastrophe, gun violence, or social upheaval, the impact of serving your community in emergency situations can be both a humbling and a challenging experience. This article will explore some of the legal, ethical, and practical considerations that MFTs need to be mindful of when serving in a crisis response role when providing disaster mental health services.

Crisis Intervention and Response versus Traditional Mental Health Treatment
Crisis intervention is not a substitute for psychotherapy. Crisis intervention is a short-term, acute intervention designed to mitigate the stress reactions associated with a specific incident. It is not psychotherapy, but emotional first aid. Crisis intervention is emergency psychological care aimed at assisting individuals in a crisis situation to restore equilibrium to their biopsychosocial functioning and to minimize the potential for psychological trauma. Crisis intervention targets the stress reactions to the event; it is the planning and the actions taken to deal with the emotional consequences of the incident. The purpose of crisis intervention is to mitigate adverse reactions, facilitate coping and planning, assist in identifying and accessing available supports, normalize reactions to the crisis, and assess capacities and need for further support or referral to the next level of care.

Crisis Standard of Care
Given the unique nature of disaster mental health services, questions arise regarding the “crisis standard of care” and what liability protections exist for mental health care providers who treat individuals in the context of disaster response. Generally, the standard of care and skill to which an MFT is held is to possess and to exercise the knowledge and skill of a member of the same profession in good standing.² The framework under which a provider would be held liable is determined by professional negligence standards. The essential elements include the creation of a duty of care, breach of that duty through an act or omission, the cause of the injury is due to the professional’s act or omission, and there is injury sustained to the individual.³ The treatment of services pursuant to a crisis standard of care may tend to muddle how a mental health care provider’s performance is measured in emergency or crisis response situations. However, the existence of emergency situations is considered among the circumstances under which a person was deemed to act. Therefore, the legal standard of care for claims arising during crises should explicitly recognize how mental health care practitioners act and perform in an emergency situation while serving and protecting the public’s interest. Hence, if a provider is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account when determining whether the provider’s resulting conduct is that of the reasonably careful person or professional.⁴

Maintaining Professional Competence and Integrity
Individuals who are in the midst of a crisis may be in a heightened state of distress and vulnerability. As such, disaster mental health and crises intervention is high-risk, demanding, and requires a high level of skill and professional competence. The CAMFT Code of Ethics states that MFTs maintain high standards of professional competence and integrity.⁵ Hence, when rendering disaster mental health services, it is important for MFTs to practice within their areas of expertise and to have a meaningful and comprehensive understanding of the issues at play. Receiving training specific to disaster mental health work can prepare an MFT to provide for—and respond to—the psychological and emotional needs of people across the spectrum of disaster response and recovery. Obtaining a better understanding of emergency management and humanitarian aid ensures that a provider is appropriately trained and can provide one with the competencies that are necessary to evaluate and effectively intervene in crisis response situations. To help California MFTs develop competencies in disaster mental health, visit CAMFT’s Crisis Response Education and Resource Committee (CRERC) website. CRERC has resources that will support your professional development in crisis response by expanding your knowledge base, improving your skills, and directing you to opportunities to gain experience serving your community. You can access CRERC’s resources at www.camft.org/COS/CRERC.

Maintaining Confidentiality
It is imperative to understand what legal rights remain intact when providing disaster mental health services. An essential legal and ethical component of disaster mental health and crisis response is confidentiality. However, providers may find it challenging to ensure complete confidentiality in some instances given the settings where disaster mental health services are typically rendered. For example, disaster mental health clinicians may be in situations where services are provided in environments such as temporary disaster relief shelters, community centers, churches, and schools. In these environments a provider may have very little ability to control the setting. Hence, traditional approaches to maintaining confidentiality may not seem feasible. However, it is important to remind disaster mental health clients of the potential risks to confidentiality that may exist and to work collaboratively to minimize those risks. For example, if there is a likelihood of people nearby overhearing a conversation between a provider and a person seeking services, minimizing this risk may involve informing the survivor of this possibility and then finding another place where the survivor feels comfortable talking.

Informed Consent
Disaster response is not traditional counseling in that it does not give rise to an ongoing therapeutic relationship and is typically a short-term intervention. However, even in disaster response situations, behavioral health care providers have a number of obligations, including but not limited to, the duty to protect patients if the patient is a danger to self or to others. These duties are relevant in the context of disaster mental health and crisis response as a disaster mental health clinician may encounter individuals who are at risk for suicide or other harmful behaviors. As such, providers must be able to address these needs in a legally appropriate manner. Informed consent may present an important ethical challenge for mental health care providers in the rendering of disaster mental health services. Disaster mental health clinicians should not assume, given the constraints that may exist to obtaining informed consent in disaster relief and situations, that they are not responsible for informing survivors of certain legal duties and other responsibilities.⁶ Providing informed consent during disaster mental health interventions could be difficult as the mental health care provider may either not have a real opportunity to initiate the process of obtaining informed consent; or, disaster survivors may be unable to provide informed consent due to an injury which could affect that individual’s cognition or capacity. Nonetheless, it is incumbent upon disaster mental health care clinicians to communicate the risks and benefits of treatment to the individual when establishing the treatment relationship. If the risks and benefits of an intervention are unknown, disaster mental health care providers should disclose this prior to initiating treatment.

Typically, due to the context in which disaster mental health services are rendered, the informed consent process is verbal, meaning that providers identify themselves and their role in responding to the practical and psychoeducational needs of those impacted by the crises situation. It may be prudent for the disaster mental health care clinician to seek authorization from an individual to share their information with aid organizations or other mental or medical health care providers who may be able to advocate on the survivor’s behalf as there are instances in which advocacy on behalf of survivors is needed.⁷ When a provider is not able to obtain authorization in writing, determine whether the disclosure falls under an exception to confidentiality. For more information about the exceptions to confidentiality see CAMFT article, “Confidentiality and Its Exceptions” by Bonnie Benitez, former CAMFT Staff Attorney.

Cultural Awareness and Competency
The CAMFT Ethical Standards require marriage and family therapists to “actively strive” to identify and understand the diverse cultural backgrounds of their clients. This standard is just as applicable in crisis response as it is in a traditional practice setting.⁸ Disasters generally create situations in which some health care services are delivered by providers who are not originally from the affected area. Yet, demonstrating respect for the diverse values, beliefs, and cultures of the community being served constitutes one of the principles of the ethical practice. Understanding how an individual is experiencing a crisis and being able to engage that individual and to effectively connect with that individual is crucial. It is important to recognize how one’s reactions to disaster and stress, and how one’s coping skills, differ based on their beliefs, cultural traditions, or economic and social status and to ensure that services are responsive to the culture, gender, race, age, sexual orientation, health literacy and communication needs of the individual being served.⁹ For example, a natural disaster could impact a primarily Spanish speaking community but the crisis response team may be comprised of non-Spanish speaking LMFTs. In this instance, the crisis response team might consider working with a translator who understands the cultural needs of the impacted community.

Attending to the cultural and developmental aspects of someone in the midst of a crisis may pose its challenges. It may require that an individual be afforded the opportunity to select his/her choice of provider. Therapists who are unsure about how to work with specific survivor populations may consider obtaining supervision or specialized consultation before choosing to embark on a disaster mental health care mission. Disaster mental health care clinicians need to be cognizant of language or interpreter needs and be knowledgeable of these issues when providing services. It is important to remember that when serving communities in crisis, providers commit to helping anyone they encounter and may not discriminate or make values-based referrals.¹⁰ The former California Department of Mental Health identified core competencies for disaster mental health care workers. The five competencies are: 1) understanding terms and concepts related to disaster mental/psychosocial/behavioral health preparedness and response; 2) the ability to communicate effectively; 3) the ability to assess the need and type of intervention (if any); 4) the ability to formulate and implement an action plan based upon one’s knowledge and skill; and 5) demonstrate knowledge of responder peer-care and self-care techniques. For more for more information about these competencies, visit: http://www.camft.org/images/PDFs/crerc/ CoreCompetenciesAppendixD_E.pdf

Maintaining Resilience and Self-Care While Providing Disaster Mental Health Services
Survivors of a disaster can be overcome with emotion after witnessing or experiencing environmental destruction, physical injuries, deaths of peers, and loss of property and of livelihoods. It is important to recognize that in an effort to help and to mitigate the impact of disaster trauma on others, disaster mental health care providers are exposed to intense and stressful conditions as well as traumatic events that can compromise their own mental health and well-being. Ultimately, this could impact their ability to respond effectively. Research suggests that up to 10% of disaster responders experience symptoms consistent with post-traumatic stress disorder (PTSD).¹¹ These symptoms include, but are not limited to, depression, anxiety, and substance abuse. Responders who work and live in disaster affected communities have the potential to be dually exposed to both direct and secondary trauma through their work in providing crisis counseling, mental health interventions, and emotional support to disaster survivors and other response workers.¹²

Researchers have identified factors that may help shield disaster mental health care providers from severe traumatic reactions and protect against the development of severe PTSD symptoms. Researchers have suggested that, among other techniques, something as simple as mindfulness can help protect against the development of severe PTSD symptoms among trauma exposed groups, including trauma survivors and first responders.¹³It is important for disaster mental health workers to know what types of emotional resources will be most helpful for them to mitigate and alleviate disaster-related stress while supporting and assisting disaster survivors. Be vigilant about seeking professional assistance to help you form strategies to give you the support and resiliency you need to sustain yourself while bearing witness to the trauma around you as you.

Other Ways to be of Service
As mental health professionals, you have the opportunity to offer skills that are much needed to cultivate a sense of calm. You help by listening to the stories of survivors, validating their experiences, and providing tools to help them navigate a new reality. You may also find opportunities to assist local efforts through volunteering for a local charity. It may feel frustrating or almost paralyzing not to be able to help or reach a community reeling from a disaster. If you feel like you need to11 DO something but are unable to offer aid in the form of mental health services or through volunteering, there may be ready opportunities to donate money or supplies. Contributing in these ways is still very much an active way to be involved in the effort toward recovery.

Also, sharing the emotional burden of other compassionate advocates may not only provide ease, but can encourage collaborative and creative recovery strategies. For example, you can spearhead a local fundraiser or organize an event to help those who suffered a loss.

CONCLUSION
Obviously, disasters vary with respect to their time, place, extent, and duration. Legal and ethical questions in these situations may not always fit a “one-size-fits-all” response. However, it is an important reminder that adhering to ethical values and principles in every aspect of providing mental health care is vital. Therefore, it is important to review the legal and ethical standards—taking into account the potential dilemmas that may arise—so as to minimize those challenges while contributing in ways that cultivate a sense of healing and community through your work.

Alain Montgomery, JD, is a paralegal for CAMFT. Alain is available to answer member calls regarding ethical and licensure issues.

Endnotes
¹ Cal Fire. www.calfire.ca.gov. Accessed 04/01/18.
²Torts, Restatement, Third – Standard of Care for Professionals
³ Id.
⁴ Torts - Restatement (Torts), Third - Liability for Physical and Emotional Harm; Hodge JG, Jr, Courtney B. Assessing the Legal Standard of Care in Public Health Emergencies. JAMA. 2010;303:361–2; James G. Hodge, Jr., JD, LLM, Lainie Rutkow, JD, PhD, MPH, and Aubrey Joy Corcoran, JD, MPH, Mental and Behavioral Health Legal Preparedness in Major Emergencies
⁵ CAMFT Code of Ethics, Part I, Section 3, Preamble.
⁶ Tarasoff v. Regents of the University of California, 1976
⁷ Cashwell, Craig and Pow, Allision Marsh, “Posttraumatic Stress Disorder and Emotion-Focused Coping Among Disaster Mental Health Counselors,” Journal of Counseling & Development, July 2017, Vol. 95.
⁸ CAMFT Code of Ethics, 3.6 CULTURAL SENSITIVITY: Marriage and family therapists actively strive to identify and understand the diverse cultural backgrounds of their clients by gaining knowledge, persona awareness, and developing sensitivity and skills pertinent to working with a diverse client population.
⁹ Crawford, Kermit; Ford, Almarie; Indart, Monica; McGee, Lori; “Applying Cultural Awareness to Disaster Behavioral Health,” webinar, SAMHSA’s Disaster Technical Assistance Center, August 24, 2011.
¹⁰ Id.
¹¹ Cashwell, Craig and Pow, Allision Marsh, “Posttraumatic Stress Disorder and Emotion-Focused Coping Among Disaster Mental Health Counselors,” Journal of Counseling & Development, July 2017, Vol. 95.
¹² Id.
¹³ Id.

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.