In the late ‘90s, I went through two transitions.  The first was law school, which I started in ’97, and the second had to do with forensic practice.  Between the late ‘70s, when I realized that my clinical practice was strong and satisfying, until the late ‘80s, when I grew increasingly resentful of the incursion of managed care into the mental health system (I trained to be a “professional” – not “labor”), I was very happy in my work as a treater.  I had little contact with the forensic world and that was actually quite ok with me, as the hassles of dealing with the adversarial world of forensics seemed too much to pull me in that direction.

As I went through law school and thought about the kinds of legal work I might do on graduation, one area of interest was forensics, as I thought I might need to retain forensic specialists to work as experts on my legal cases.  I realized that the world of forensics seemed to be growing exponentially while my attentions were elsewhere, so I decided to travel to San Diego for a weekend workshop series offered by the American Board of Forensic Psychology (ABFP).

That weekend blew my mind away.  First, I ran into people I had known years earlier when I was a full time faculty member at USC.  Those were wonderful reunions.  Second, I felt like I walked into a time warp.  The presenters and attendees were speaking an “ancient” language – one I hadn’t heard spoken in many years – I had learned it as a graduate student at Indiana University back in the mid-60s.  It was the language of empirical psychology,  These folks spoke it, lived it and breathed it.  I was transported 30 years into the past.  And, with all due respect, I became aware that the attitudes of academic clinical psychologists I encountered in my training (often less-than-subtle snobbery, devaluing of practicing clinicians) were manifest among those who populated the forensic world,

Gutheil, J., & Brodsky, S. (2008).
Preventing Boundary Violations in Clinical Practice. Guilford Press.

A. Steven Frankel, PhD, JD

CEO, The Steve Frankel Group, LLC

Get this book!  Read it too – don’t just let it sit on your shelf.  While I’m sure that the last thing you want to do is to curl up in bed with a book on boundary issues in clinical practice, I actually have to do just that.  Many times, I loathe and detest those experiences, but not with this book.  This is the boundary book for grown-ups.  A comprehensive (in about 300 pages) review of the whys/wherefores and how-to’s/how not to’s of boundaries.  This is a mature and thoughtful piece, acknowledging, for example, that regulatory boards tend to be more than just a few “jnd’s” (just noticeable differences, for those of you who may have forgotten your intro psych courses) more rigid than the mainstream of mental health professionals.  Another example of the authors’ thoughtfulness and flexibility concerns the acknowledgement that personal disclosures by clinicians who treat childhood trauma survivors might be a bit more revealing than with, say, uncomplicated anxiety or depression spectrum disorders, because childhood trauma survivors have experienced people who have represented themselves in ways that belie the truth about them and patients/clients may need to know that clinicians are who they say they are.  I give it an A+!!

The Ethics Requirement That No One Wants (and Many Are Unable) to Face: The Solutions

A. Steven Frankel, PhD, JD

CEO, The Steve Frankel Group, LLC

The Easiest (but, thus far, Ineffective) Solutions:

A. Do-it-yourself

At first blush, the most reasonable implementation of the professional society ethics codes requiring us to prepare for unanticipated terminations of practice, due to death or disability, is to find a colleague who’s willing to make an agreement that s/he will take care of the ministerial functions required to close a practice and transfer patients/clients and their files when needed. Such agreements would necessitate some risk (in the sense that there’s no way to predict which colleague will need the services first) and would require that you thoroughly acquaint the colleague with your practice, provide lists of the best people to refer your patients/clients when the time comes, how to access the files, how to know which patients/clients are/aren’t currently being seen (and thus be able to determine which are in need of being contacted right away), what the accounts payable and receivable look like, where the office lease is, how to arrange for the phone company to forward calls to the helping colleague, and on, and on...

I have advocated that colleagues who make these kinds of deals with each other also take out a term life policy of $10,000 to $20,000, naming each other as beneficiaries, because of the enormous time and effort needed to take on the closing of a colleague’s practice.

As may not surprise you, colleagues consistently report that they cannot find others who are willing to make these types of deals.

B. Let your county professional society do it for you:

One might think, given that the ethics codes that require us to prepare for such circumstances are easily a decade old, that local professional societies (e.g., your local friendly county professional association) would have warmed to this problem. After all, given that there's any truth to the nasty rumor that county professional societies are suffering from acute Loss Of Membership Syndrome (that's a "V-code," in case you were wondering) in these hard economic times, you might think that this problem would be the secret to their rehabilitation and success. After all, county professional societies have the most direct contact with the "rank and file" professionals in their jurisdictions, and might actually be able to get a hefty fee from new and old members if they could provide a practice closing service for members. Are they doing it? Hardly.

Humbly, SFG is Leaping Into the Breach:

So here's what I think. I think that we (SFG) can put together a nation-wide practice wind-down program that will bring subscribers to the program, their patients/clients, their loved ones and their professional malpractice companies a great peace and nothing but kind thoughts/remembrances. As part of our Dawn-to-Dusk ^TM professional practice series, we plan to initiate a wind-down program that will provide the right kind of preparation and implementation of plans to:

1. Transfer patients/clients to appropriate clinicians, with records, providing continuity of care.
2. Provide for record retention/destruction consistent with jurisdictional requirements.
3. Manage the business-financial aspects of a practice (e.g., office leases, subscription services, managed care contracts, etc.).
4. Protect the loved ones who are in the midst of grieving your loss.
5. Deal with the legal system, together with your malpractice insurance company, in the event of questionable attempts to invade the privacy and confidentiality of professional records.

The Ethics Requirement That No One Wants (and Many Are Unable) to Face: The Problem

A. Steven Frankel, PhD, JD

CEO, The Steve Frankel Group, LLC

The Problem:

So here we are, stuck with an ethics requirement that we don't want to face, and, for many of us, can't embrace because we find it to be virtually impossible to implement. As you can tell from looking at my teaching schedule and cv, posted elsewhere on the SFG website, I teach law/ethics/regulation all over the west coast (including Arizona and even Hawaii). When my presentations cover the issue of "Professional Wills" (the ethical—and in some states, legal—requirement to prepare for unanticipated terminations of practice, due to death or disability), I always poll my audiences to see how many have complied with the requirement that binds all non-physician mental health professionals nationwide (see the APA, NASW, AAMFT and ACA codes, appended to this blog).

Hardly anyone has complied. When I ask about their reasons for non-compliance, I get two kinds of answers. The first category includes those in what we might call avoidance and/or "collective denial," best exemplified by comments like "I know I should do this, but (pick one): haven't gotten around to it, plan to do it sooner or later, can't figure out how to do it, don't want to think about it, etc.".

The second category includes those who are extraordinarily frustrated—they have tried to find a colleague who would make a mutual agreement that they would take care of each others' practices when the need arose, with whomever's need arose first getting the benefit of the agreement. These are colleagues who are neither avoidant nor in denial, but simply can't implement a plan to operate in ways required by ethics and law.

I also ask if anyone has ever assumed the duty of closing a colleague's practice. On those rare occasions when someone raises a hand, the audience is greeted with a horror story of one of the most onerous of tasks, taking oodles of time/energy and effort, most often during a period when the practice closer is also grieving the colleague whose practice is being closed. Such presentations don't do much to increase the interest on colleagues signing up to help each other out.

Obstacles:

When we think about it, there are easily understood reasons why we can't find someone to help us out when the need arises. First on the list is that non-physician mental health professionals are notoriously lousy record-keepers. Some of us don't keep records at all (some states have allowed this for some of us; some of us take the interesting position that if they don't keep records, their records can't be stolen and no patients/clients can have their confidentiality violated, etc.), some of us keep awful records, scrawled on post-its or note paper, in handwriting not even a mother could love.

Some of us don't store records in any recognizable way, such that even someone with authorization to access records might not know where to find them, which ones are current patients/clients, which are past patients/clients, where old records are stored, what the passwords are for computer-based records, where the keys to filing cabinets might be, and on, and on, and on….