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….

Consequences of the Problem: Some Examples

So my phone rings and there's a very distraught person on the other end. S//he indicates that his/her spouse was a mental health professional with some/all private practice (given that some professionals who are agency employees may also maintain small private practices, they are as vulnerable to these problems as are full-time practitioners), that his/her spouse has just passed away, and that s/he is now: 1) getting calls from her deceased spouse's office landlord, who indicates that rent must be paid per a lease, and that failure to pay rent will result in eviction, with all office furniture and files being placed in disposal bins (records will not be shredded, but will be simply thrown away); 2) being contacted by colleagues, former patients/clients, contractors, etc., wanting to know whether they will be paid for services they had provided to the deceased spouse, or whether they can have their records, or whether they can get referrals to new clinicians for treatment, or whether...; 3) being faced with bills from companies with which the deceased spouse has been doing business, like subscriptions, membership dues, etc., all needing some relatively immediate action—and all of this happening during the period of the most intense grieving for their deceased spouse (or during the period of dealing with the overwhelming problems attendant to a spouse who has become disabled, as in a stroke).

So my phone rings and a colleague of a recently-deceased/disabled colleague tells me that his/her colleague has been murdered and that police are now at the office, wanting access to all of the deceased colleague's records so as to investigate for the possibility that one of the deceased colleague's patients is the murderer. The caller asks what to do: release the records? Deny access? Go to court to defend a decision not to release? Call the deceased colleague's malpractice company to ask if they will appoint an attorney to defend against the police gaining access to the records, and on, and on, and on.

(At this juncture, it might be helpful for you, kind reader, to lay your denial/avoidance aside and ask what would happen to those professionally/personally close to you if you were the decedent.)

So my phone rings and someone says that s/he was a patient/client of a clinician who has disappeared. The clinician doesn't answer phone calls, doesn't respond to a knock on the office door and doesn't respond to letters. The caller says that s/he has been seeing the clinician for treatment of an injury by someone with whom s/he is involved in a lawsuit and that his/her records are absolutely essential to his/her court case, and s/he is desperate to get those records because a major court date is arriving within a few days.

(At this juncture, it might be helpful to consider that if you believe that the afterlife is about how people remember you, or that if you are really committed to providing highly professional services to your patients/clients, your future reputation may hang in the balance of how you have prepared for these unfortunate circumstances.)

The Problem of “Exposure” for Non-Compliance:

Since we know that national professional society ethics codes wind up viewed by courts (and, in some states, expressly in the law) as the “standards of care” for us all, it’s helpful (but kind of scary) to consider the consequences of not embracing the codes. Well, in a perverse sort of way, there are no board actions that can come your way if you pass away, as you are, shall we say, outside of the board’s jurisdiction. However, if you are disabled, a board can still act against your license. Further, there is exposure on the part of your estate if an angry patient/client wishes to file a malpractice case against you for not anticipating your current condition. Your malpractice insurance would defend you, as long as such a suit was filed within the statute of limitations in your state, but there will be a point at which the policy will not cover, at which time the costs come out of your estate, involving your family. Not a lot of fun, eh?

And, to Make Matters Worse:

Our professions are, shall we say, "maturing," in the sense that we have both "pre-boomers" and "boomers" approaching/entering retirement years (unless, of course, you have invested your retirement funds in the current stock market) as well as approaching "unanticipated disruptions/terminations of practice due to death or disability."

The Solution:

The ways you can address these issues will be covered my next blog entry. Please check in next week for the details, or use the link at the top of the page to subscribe. Thank you!