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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.
Clinical supervisors play an important role in the training of every therapist. This article emphasizes the need for supervisors to be familiar with the laws, regulations, and ethical standards which govern the conduct of supervisors and supervisees.
Michael Griffin, JD, LCSW Staff Attorney The Therapist September/October 2013
Clinical supervisors play an important role in the training of every therapist.1 Part mentor, teacher, manager and counselor, a clinical supervisor is responsible for monitoring and evaluating a supervisee, and for overseeing the services which he or she provides. The supervisor's role can be challenging, and new supervisors in particular may find the complexity of tasks and the substantial responsibility that is involved to be daunting. Yet for clinicians who are willing to assume the responsibility, the opportunity to serve as a clinical supervisor can also be very rewarding.
This article emphasizes the need for supervisors to be familiar with the laws, regulations, and ethical standards which govern the conduct of supervisors and supervisees. Hypothetical scenarios are presented to illustrate the application of legal and ethical standards to specific circumstances, and to discuss key aspects of the clinical supervisor's role.
Challenging Scenario#1: The Defiant Supervisee Every supervisee has a voice in his or her training. Even the most inexperienced trainee should be respected as a developing professional, with his or her unique fund of knowledge, experience and skills. With that said, every supervisee is subject to the authority and oversight of a supervisor until he or she becomes licensed.
In the following examples, the supervisee's conduct suggests he or she was unwilling to be supervised, and/or that he or she was independent of the supervisor's authority and control. The supervisee is unreceptive to, or uncooperative with, the supervisor's input or direction regarding the treatment of a client or clients.
Generally speaking, California law conveys an expectation that supervisors are vigilant in performing their duties: §1833.1(a)(8), Code of Regulations: The supervisor shall ensure that the extent, kind, and quality of counseling performed is consistent with the education, training, and experience of the trainee or intern. §1833,(b), Code of Regulations: The supervisor must ensure that his or her intern is compliant with the laws and regulations which govern the practice of marriage and family therapy.
Discussion It isn't easy to work under the scrutiny, and authority, of another professional, regardless of that person's experience or title. However, the supervisee occupies such a role until he or she is licensed, which is usually a period of several years. It would be unrealistic to think the supervisor-supervisee relationship is somehow immune to conflict, or that a supervisee would never disagree with his or her supervisor.
The mere fact that a supervisee resists the advice or direction of his or her supervisor on some issue, in itself, is not automatic cause for alarm. But there is a point at which, ordinary conflict or differences of opinion are no longer acceptable. The bottom line is neither the supervisor or his or her supervisee can ever overlook or forget that a clinician is not an independent practitioner until he or she becomes licensed.
If a supervisor perceived his or her supervisee was acting as if he or she were independent of the supervisor's authority, it would be necessary for him or her to immediately intervene. Whether the situation could be resolved, depends upon the facts and circumstances, including the ability of the supervisee to acknowledge the gravity of the matter. If the supervisee was unwilling to cooperate with the supervisor, the supervisor would have little choice other than to remove the supervisee from his or her role as therapist. Although it would be desirable if the supervisee and supervisor could resolve their issues, such an outcome is probably unrealistic in view of the serious breakdown in authority. Any continued involvement by the supervisee as therapist to the particular client(s) would require the supervisee to understand why his or her actions were improper and to acknowledge the authority of the supervisor. If the decision is for the supervisee to remain, the supervisor would have to also consider the need to increase his or her oversight of the supervisee, given the circumstances.
When a supervisee is unwilling to be supervised, it is impossible for the supervisor to satisfy the laws and ethical standards which are relevant to supervision. Should that occur, there is a risk of a disciplinary action against the supervisor by the licensing board.2 Furthermore, if a client alleged he or she was harmed as the result of treatment performed by an unlicensed therapist, the supervisor could face a potential malpractice lawsuit, alleging that he or she was negligent as a supervisor, or an ethics complaint, alleging that the supervisor failed to ensure that the supervisee practiced within his or her scope of competency.3 4
Challenging Scenario#2: The Uninformed Supervisor In this scenario, the supervisor's lack of knowledge and/or awareness regarding the activities of his or her supervisee, interferes with his or her ability to oversee and monitor the supervisee's activity.
There are various reasons that this situation may exist. Unlike the prior scenario, where the supervisee is fundamentally opposed to the idea of being supervised, this situation typically involves a supervisee who is cooperative with his or her supervisor, but fails to comply with policies or procedures and may not provide the supervisor with full and complete information. In addition, the supervisor may lack important information, because he or she does not closely monitor all of the supervisee's activities.
Common examples include the following:
Applicable laws §1833.1(a)(8), Code of Regulations: The supervisor shall ensure that the extent, kind, and quality of counseling performed is consistent with the education, training, and experience of the trainee or intern.
§1833.1(a)(9), Code of Regulations: The supervisor shall monitor and evaluate the extent, kind, and quality of counseling performed by the trainee or intern by direct observation, review of audio or video tapes of therapy, review of progress and process notes and other treatment records, or by any other means deemed appropriate by the supervisor.
§1833(b), Code of Regulations: "Supervision" includes: "…reviewing client/patient records, monitoring and evaluating assessment, diagnosis, and treatment decisions of the intern or trainee; monitoring and evaluating the ability of the intern or trainee to provide services at the site(s) where he or she will be practicing and to the particular clientele being served; and ensuring compliance with laws and regulations governing the practice of marriage and family therapy. Supervision shall include that amount of direct observation, or review of audio or video tapes of therapy, as deemed appropriate by the supervisor."
Discussion A supervisor must be adequately informed about the activity of his or her supervisee in order to appropriately monitor and evaluate his or her performance. The supervisor had an affirmative duty to monitor the supervisee's records and to ensure they were properly completed.5
The failure to complete clinical documentation in a patient's treatment record could result in an allegation that the supervisee acted unethically.6 There is also the potential for disciplinary action by the licensing board against the supervisee and his or her supervisor, if either person failed to meet his or her respective legal obligations.7 8 9
Although it is understandable that the supervisee may have been reluctant to discuss the fact that a client dropped out of treatment, or that a client's father was angry at him, the supervisor must make it absolutely clear he or she expects to be promptly informed of such events. The fact that the supervisor didn't know that his supervisee's client dropped out of treatment three weeks earlier means that the supervisor could not have intervened, if dropping out of treatment placed that particular client at risk. Similarly, if the supervisor was unaware that a client's father was angry at the supervisee, he or she would be unable to address any clinical or legal issues which may require his or her attention at the time.
The supervisor may have simply forgotten to review his supervisee's website, or, he may have trusted that his supervisee would create an appropriate website that was in full compliance with legal and ethical standards. Either way, it was a mistake: The supervisor is obligated to ensure his supervisee is in compliance with laws and regulations governing the practice of marriage and family therapy and should have reviewed and approved his supervisee's website in advance.10 11 12 13 14
It is easy for anyone to make a mistake in advertising, including a bright and responsible supervisee. It is the supervisor's responsibility to ensure the supervisee does not hold him or herself out in a manner which suggests he or she is practicing as an independent professional.15 16
Challenging Scenario#3: The Overwhelmed Supervisee In this scenario, the supervisee appears to be overwhelmed, and/or unable to cope with the demands of working in the particular treatment setting.
Examples of such a scenario include:
Applicable laws §4982(c), Business and Professions Code: Unprofessional conduct is defined as the use of a controlled substance, dangerous drug, or alcoholic beverage "…to the extent, or in a manner, as to be dangerous or injurious to the person applying for a registration or license or holding a registration or license under this chapter, or to any other person, or to the public, or, to the extent that the use impairs the ability of the person applying for or holding a registration or license to conduct with safety to the public the practice authorized by the registration or license."
§4982(t), Business and Professions Code: Unprofessional conduct is defined as permitting a trainee or registered intern under one's supervision or control to perform, or permitting the trainee or registered intern to hold himself or herself out as competent to perform, professional services beyond the trainee's or registered intern's level of education, training, or experience.
Discussion A difficult and important challenge for every supervisor is the necessity to evaluate the ability of his or her supervisee to provide services in a particular treatment setting and to the clients who are served there.17 There is a dual purpose here: To protect the clients, by ensuring the supervisee is able to provide them with competent assistance, and to prevent the supervisee from undertaking tasks which are beyond his or her scope of competency.
Because every supervisee, and every treatment setting, is unique, there isn't a single formula or method of accomplishing this task. The supervisor may determine his or her supervisee needs additional time to acclimate. The supervisor may also elect to assign cases to his or her supervisee in a gradual manner, in order to carefully evaluate the individual's progress. He may also require the supervisee to attend additional supervision, if it is deemed necessary to the supervisee's success in the treatment setting.
In the example of a supervisee struggling with emotional problems, or substance abuse, etc., there is also a need for the supervisor to ensure the well being of clients, and an expectation that the supervisor will attempt to encourage or assist his or her supervisee in obtaining appropriate assistance. 18 19
Final considerations Although the foregoing problem scenarios are potentially very challenging, they are not, as a rule, unresolvable. Supervisors who are knowledgeable of legal and ethical standards applicable to supervision and clinical practice, will be greatly aided in their ability to respond to any of the challenges which are likely to arise. Many supervisors also discover their level of skill and confidence increases over time, as they gain experience.
In situations where the supervisor finds him or herself with challenging, reckless, inexperienced or troubled supervisees, it is essential to consult clinically as well as legally, to ensure the protection of the supervisor, supervisee, and client.
Michael Griffin, JD, LCSW, is a Staff Attorney at CAMFT. Michael is available to answer member calls regarding legal, ethical, and licensure issues.
Endnotes 1 Psychotherapists of every professional discipline are required to participate in some type of clinical supervision as part of their professional training. Supervision requirements vary, depending on the type of license being sought. 2 §4982, Business and Professions Code 3 A malpractice lawsuit is a lawsuit for negligence. Generally speaking, in a case involving allegations of "negligent supervision," the issue is whether the supervisor met the "standard of care," as a supervisor. The standard of care is based upon the reasonable degree of skill, knowledge and care that would ordinarily be exercised by other professionals, in same or similar circumstances. Black, H.C. (1990). Black's Law Dictionary, St. Paul MN: West 4 §4.2, CAMFT Code of Ethics, Competence of Supervisees: Marriage and family therapists do not permit students, employees, or supervisees to perform or to hold themselves out as competent to perform professional services beyond their training, level of experience, competence, or unlicensed status. 5 Id. 6 §3.3, CAMFT Code of Ethics, Patient Records: Marriage and family therapists create and maintain patient records, whether written, taped, computerized, or stored in any other medium, consistent with sound clinical practice. 7 §4982(v), Business and Professions Code (The failure to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered is unprofessional conduct). 8 §1833(b),Code of Regulations ("Supervision" includes reviewing patient/client records). 9 §1833.1(a)(9),Code of Regulations 10 §4.14, CAMFT Code of Ethics, Knowledge of Laws and Regulations: Supervisees have a responsibility to be knowledgeable about relevant laws and regulations pertaining to the license and practice of marriage and family therapy. 11 §4982(12)(b), Business and Professions Code 12 §1833(b), Code of Regulations 13 §4.5, CAMFT Code of Ethics, Changes in Laws and Ethics: Supervisors and supervisees are aware of and stay abreast of changes in professional and ethical standards and legal requirements, and supervisors ensure that their supervisees are aware of professional and ethical standards and legal responsibilities. 14 §1811, Code of Regulations, (advertising requirements-licensees and registrants). 15 §4980.44(c), Business and Professions Code, Prior to performing any professional services, an unlicensed marriage and family therapist must inform each client or patient that he or she is an unlicensed marriage and family therapist registered intern, provide his or her registration number and the name of his or her employer, and indicate whether he or she is under the supervision of a licensed marriage and family therapist, licensed clinical social worker, licensed professional clinical counselor, licensed psychologist, or a licensed physician and surgeon certified in psychiatry by the American Board of Psychiatry and Neurology. 16 California law provides similar disclosure requirements for marriage and family therapist interns and trainees, professional clinical counseling interns and trainees, associate clinical social workers, and psychology trainees. See, §4999.45, Business and Professions Code; §4996.18(h); Business and Professions Code; §1387.1, Code of Regulations. 17 §1833(b), Code of Regulations 18 §4.10, CAMFT Code of Ethics, Performance Assistance: Supervisors and educators guide supervisees and students in securing assistance when needed for the supervisee to maintain or improve performance, such as personal psychotherapy, additional education, training, or consultation. 19 §5.2., CAMFT Code of Ethics, Impaired Colleagues: Marriage and family therapists are encouraged to assist colleagues who impaired due to substance abuse, emotional problems, or mental illness.