Public Policy

1) Effective expert testimony requires familiarity with MFT/Legal issues in question and process by which they will be decided.

2) Principles on which judgements of professional legal responsibility and liability are based have seen many changes in recent years.

3) Involvement in legal system calls for conceptual changes by many MFTs due to differing philosophies and methods.

The philosophy of the courtroom process frequently contradicts the therapy process because most MFTs training is heavily influenced by goal-oriented notions of __________;

as a result, they are often unprepared for __________ emphasis of the courtroom.

• what should be

• what-is

 Methodologically, the major therapeutic role of MFTs is…

MFTs need to be familiar with the basics of legal research in order to attain __________ in matters relevant to their professional practice.

LEGAL EDUCATION

Resources exist that can help MFTs understand basic concepts in law. For MFTs - legal laypersons - several distinctions are of particular concern: (6)

1) Common Law

2) Constitutional Law

3) Statutory Law

4) Administrative (Regulatory) Law

5) Case Law (Court Decisions)

6) Criminal vs. Civil Law

***The fundamental law of the U.S.; derived from English law, its authority stems from tradition and usage, not legislation.

Regarded as expressing the usage and customs of immemorial antiquity common to the people of England.

Conceptually, it represents the belief that law does not have to be derived only from written sources.

Common Law

Constitutional Law

***Consists of those laws passed by a legislative body, such as a state legislature or Congress, and signed into law.

Exist in each of the 50 states, in the U.S. territories, and at the federal level.

Binding only in the jurisdiction where they were passed.

Statutory Law

***Laws passed by the U.S. Congress and state legislatures delegating broad rule-making authority to specialized agencies.

The rapid growth of these agencies made it clear that Congress and state legislatures could not effectively promulgate the rules required to regulate all areas of government control as highly specialized areas required knowledge and time beyond the limits of the average legislator.

Administrative (Regulatory) Law

***A body of legal decisions that, when taken collectively, create rules for decision making.

Case Law (Court Decisions)

***In Case Law, typically, statutes prescribe certain legal principles. Legislation, however, is frequently written in broad terms, and thus courts apply, interpret, and fill in the intricacies in the statutes.

Courts take into consideration: (2)

1) a statute and its legislative history and then decide what the legislators actually intended.

2) any bearing that higher laws (i.e. state or federal constitution) may have on the interpretation of the statute in question.

In Case Law, many nuances enter the process, including: (3)

1) determination as to whether federal or state law applies

2) accumulation on the basis of stare decisis

3) whether cases may be decided in the trial, intermediate, appellate, or highest court levels within the state or federal system

In Case Law, when determining whether federal or state law applies, in general, ______ law must be considered first.

If an issue is raised, such as a constitutional right or conflict between states, then ______ law will come into play.

• State

• Federal

***Case Law accumulates on the basis of ________. Under this doctrine, when a court interprets and applies common law, statutes, or regulations to the facts of a case, that court and lower courts in the same jurisdiction are bound to apply that precedet to future cases with similar facts. Though, other courts may regard such decisions, depending on the number and reasoning, as persuasive albeit not binding.

"Let the decision stand."

Stare Decisis

In Case Law, although the nomenclature may vary from one jurisdiction to another, there are typical designations for various court levels.

The higher court in the federal system is the __________.

The courts underneath the higher court include: (2)

U.S. Supreme Court

1) U.S. Court of Appeals

2) Federal District Courts

In Case Law, although the nomenclature may vary from one jurisdiction to another, there are typical designations for various court levels.

The higher court in the state system is the __________.

The courts underneath the higher court include: (2)

State Supreme Court

1) Appellate Court

2) Trial-Level Courts

Courts which determine the facts in disputes and apply appropriate rules of law.

Parties first appear, witnesses testify, and other evidence is presented.

Often called superior courts, county courts, district courts, or specialty courts, such as domestic relations or juvenile courts.

Trial Courts

The losing party on the trial level may appeal the decision to an __________, courts which do not hear new testimony, but rather determine if the law was properly applied at a lower level in the court system.

A higher level of appeal is typically available, depending on the issue, as a matter of right (legal privilege due to ea. person as a citizen) or as a result of an upper court's discretion.

Appellate Court

1) Facts

2) Issue

3) Rule

4) Holding

5) Dicta

Facts

Issue

***A statement of the law that is applied to the facts. Often incomplete or ambiguous, requiring the court to interpret them. Such an interpretation then becomes a _____ in that it is a statement of law developed by the court.

Serves as a precedent, especially in the decision of an appelate court. Once stated in a decision, only that cort or a higher court may alter it.

Rule

Holding

***In a decision, a court may discuss rules that are not directly related to the facts of a present face. 

When a court states a rule that is not necessary for deciding a case, the rule is referred to as an ______ or ______(plural), which provide guidance but do not constitute binding precedent for lower courts

Obiter Dictum

Dicta

***Pertains to acts offensive to individuals. Provides a framework within which claims by one party or parties against another are adjudicated before a court.

The remedy is often some compensation to the victim.

Civil Law

***Pertains to acts offensive to society in general.

The ultimate remedy for harms inflicted in violation of these laws is punishment of the violator in the name of the state.

Criminal Law

1) Federal & State Statutes

2) Federal & State Agency Regulations

3) Federal & State Court Case Decisions

4) Articles Pulished in Law Journals

5) Books written by Legal Scholars

1)    1) a source of information leading to intervention by the state

2)   

       2) a resource for therapy services

3)   

       3) an expert witness

***MFTs have an obligation to provide __________ leading to interventions by the state. 

INFORMATION

In examining the MFT as a source of information, 3 general areas of legal obligations are to be considered: 

1) Confidentiality, Privileged Communication, & Records

2) Duty to Protect

3) Child Abuse & Neglect

***The 2 most frequently encountered situations in which therapists need to serve as sources of information involve: 

1) their duty to protect 3rd parties from actions by a client believed to be dangerous

2) statutes requiring the reporting of child abuse and neglect

***Because clients have an expectation of privacy when receiving MFT services and MFTs have an ethical duty to maintain the privacy of their clients regarding the information they learn in therapy sessions, a legal duty exists for MFTs to maintain the __________ of their clients

Confidentiality

***There are many exceptions to the duty to keep therapy information confidential, including when: (4)

1) a client has been determined to be a danger to self or others

2) a client requests private info be provided to a third party

3) child abuse or neglect is suspected from learned information 

4) a court orders that confidential information be disclosed

1) the therapist inappropriately discloses confidential information about a client

AND

2) that client can prove that he/she was damaged in some way by that disclosure

Privileged Communication

All privileged communication statutes have exceptions. Though they vary widely in the specific language of the laws in different states, the most notable exception occurs in instances of...

...suspected child abuse or neglect, in which therapists are required by law to report their suspicions to state authorities.

Statutes that grant privilege to relationships provide the legal protection to recipients of professional services, not to professionals themselves. As a result...

...it is the responsibility of clients to assert their privilege in court if their privacy is being challenged

***Therapists cannot produce info in response to a subpoena if the information is privileged. However, if info is not privileged, therapists must comply with subpoena and produce either testimony or record.

Because state and federal statutes and case law determine whether information in privileged and whether exceptions exist to any privilege, it is essential that MFTs obtain ________ before complying with subpoenas they receive.

Legal Advice

Records

Federal law which specifies steps that must be taken to ensure client privacy and includes civil and criminal penalties for therapists who do not comply.

Health Insurance Portability and Accountability Act

(HIPAA)

The California Supreme Court handed down a decision in ____________ that signaled a trend toward protection of the public's safety in preference to client confidentiality in psychotherapy.

The case involved a client who threatened during therapy to kill his girlfriend and did so 2 months later.

Tarasoff v. Board of Regents of the University of California (1976)

...had a duty to exercise reasonable care to protect the intended victim.

 1) a special relationship

2) a reasonable prediction of conduct that constituted a threat

3) a forseeable victim

 1) one person has a special relationship either to

• the person whose conduct needs to be controlled or
• the forseeable victim of that conduct

2) which is found to exist in the factual context of the case

***court held that therapist-client relationship met test for special relationship

The California Supreme Court, in Ewing v. Goldstein (2004), extended the Tarasoff precedent by holding a therapist responsible for...

...warning intended victim when a threat was communicated by the client's family member, not the client himself.

needs to be controlled

There is no definitive formula for determining if an individual is at risk for violence, but Beck and Baxter (1998) have suggested that the factors which must be considered in assessing a person's potential for violence are both 

     -internal (e.g. thoughts, feelings, perceptions) and 

     -external (e.g. envir. cond., other situations outside indiv.)

These authors cautioned that a client has the potential for dangerousness if he or she: (4)

1) is angry

2) has a motive for harming someone (delusional or realistic)

3) drinks

4) is now or has been delusional, esp. if delusions involve influence or control

Kausch and Resnick (1998) have declared that risk factors for violence include: (11)

1) history of violence or suicide attempts

2) history of criminal acts

3) young age (early 20s)

4) male gender

5) lower social class

6) low IQ

7) major mental illness

8) organic brain disorder

9) access to lethal weapons

10) use of drugs and/or alcohol

In Tarasoff, the court identified a test as the standard for determining if a client's conduct could result in a threat to a third person bycomparing an individual therapist to others in the same profession with similar knowledge, skills, and training; not a fixed concept

In determining this, the court considered w/in the context of the specific case, the "degree of skill, knowledge, and care ordinarily possessed and exercised by members of (that professional specialty) under similar circumstances"

Reasonableness

Forseeable Victim

In Thompson v. County of Alameda (1980), the court was asked to decide if there was a duty to protect the parents of a child who was murdered by a released juvenile offender, particularly as his release resulted in the murder of another neighborhood boy within 24 hours.The forseeability of the victim was the predominant question.

The court referred to the language of Tarasoff and held that although the victim need not be named directly, he or she must be __________.

Readily Identifiable

While courts in some states have ruled that a mental health professional who knows that a clients poses a risk to an ________ person/group has a duty to protect that person/group,

other courts have held that the duty to protect extends to ________ victims who may not be specifically identifiable but nevertheless woud be probable targets if the threatening client were to become violent or carry out threats.

Identifiable

Forseeable

In sum, the MFT has a duty to protect, or otherwise be liable under the law for negligence, when: (3)

1) an individual has a special relationship to either the one whose conduct needs to be controlled OR the intended victim of that conduct.

2) a standard of reasonableness has bee applied in determining a threat posed by clients' conduct.

3) there is a forseeable intended victim or victims

Defined by the Child Abuse Prevention and Treatment Act of 1974 as the:

Physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child under the age of eighteen or the age specified by the child protection law of the state in question, by a person who is responsible for the child's welfare, under circumstances which indicate that the child's health or welfare is harmed or threatened thereby.

Child Abuse and Neglect

1) Statutory definitions of child neglect often reflect poverty-level living conditions

2) Indigent individuals accused of child abuse and neglect are not guaranteed legal counsel

There are no reliable statistics regarding the exact extent of child abuse and neglect in the U.S., and this uncertainty is likely caused by: (3)

1) inconsistencies in definitions of child abuse and neglect

2) variations in reporting laws from state to state

3) different methods of data collection commonly used

Because child abuse is not a federal crime, state definitions become important in providing a basis for abuse and neglect as a crime within a particular jurisdiction.

Although state laws vary, most use a combination of two or more of the following elements in defining child abuse and neglect: (3)

1) Physical Injury

2) Mental or Emotional Injury

3) Sexual Molestation or Exploitation

State statutes mandating that MFTs report cases of suspected child abuse and neglect vary substantially in their content.

***Thus, when reading the language for their state statute that mandates suspected child abuse reporting, therapists should determine: (7)

1) which categories of professionals must make reports

2) whether reports are required only for current and/or past abuse 

3) if statutes require reports of suspected abuse or neglect of elderly, developmentally disabled, institutional residents, or otherwise vulnerable

4) whether reporting to supervisor is sufficient to satisfy the law or whether therapist must make direct reports to child protection agencies

5) if oral reports must be followed by written reports

6) the types of specific information to be included

7) circumstances under which reports must be made

To be eligible for federal funds under the Child Abuse Prevention and Treatment Act, states must grant immunity to all mandatory or permissible reporters who act in good faith.

No state requires that the reporter be absolutely certain before filing a report of abuse or neglect. It is sufficient that the reporter has...

...reason to believe or reasonable cause to believe or suspect that a child is subject to abuse or neglect.

Common indicators of child abuse and neglect include: (5)

as well as more subtle indicators such as: (3)

1) unexplained burns, cuts, or bruises

2) fear of adults

3) inappropriate interest or knowledge of sexual acts

4) unsuitable clothing for weather

5) extreme hunger

• aggressive behavior or apathy
• problems in school
• difficulty concentrating

REFERRAL RESOURCE

1) Diagnostician

2) Resource Expert

3) Treatment Provider

Although judges make the final decisions about what will happen to a youthful offender, information made available through evaluations of identified youths and their families could have a considerable impact on those decisions.

Thus, a primary function of MFTs within the juvenile system is to provide __________ for rehabilitative decisions. 

Diagnostic Evaluations

***Initially, judges must determine whether they have jurisdiction to act (whether a youth falls within a prescribed statutory classification).

Although there is variance from state to state,  typical statutory classifications and dispositional alternatives in which MFTs can provide diagnostic input include

• within the juvenile justice system: (3)
• within civil hearings: (1)

1) Juvenile Delinquency

2) PINS

3) Child Abuse & Neglect

4) Child Custody & Visitation

***Youth accused of comitting a crime, (usually) while under the age of 18 on the date of the commission of the act, over which juvenile courts have jurisdiction.

Some state laws treat children as adults if they are age 13+ and are charged with murder, forcible rape, armed robbery, first-degree burglary, or assault with intent to commit any of the aforementioned crimes; states vary.

Juvenile Delinquent

***A ________ can be be granted by the court, and may be entered if the youth has not been previously adjudicated  a delinquent or if such adjudication has been sealed, under which a juvenile is put on probation up to 6 months without a finding of guilt. (provides supervision w/out stigmatization)

• successful completion of specific terms = petition is dismissed. 
• terms are violated = petition may be reinstated/forced to stand trial.

Consent Decree

***A youth who is habitually truant from school w/out justification or disobedient of the reasonable and lawful commands of parents, guardians, or other custodians and is thus ungovernable & in need of care/supervision.

• when parents/social agencies unable/unwilling to find solution for troubled child, its in society's interest to try, through legal system
• youths typically placed in facilities for delinquents only if they have been adjudicated as such more than once

Person In Need of Supervision

(PINS)

 ***The primary aim of the court is to preserve the family bond unless such preservation endangers the welfare of a child.

Consequently, in order to preserve the family bond, when child abuse and neglect allegations are brought before it,  a judge attempts to first: (2) 

1) arrange dispositions that permit parents to maintain custody unless harmful to children

2) order families to seek medical, psychiatric, or other treatment services if parents want to maintain custody

***If a judge finds that placement with the parents is not possible, they may: (3)

1) seek relatives, other qualified individuals, or commitment to an angency charged with foster placement.

2) make efforts to keep siblings together to preserve whatever family bonds remain and ease transition to new home

3) free child for adoption by termination of parental rights in severe cases

Child Custody & Visitation

the best interests of the child

1) conduct an assessment

2) offer a detailed view of the family dynamics

3) provide recommendations regarding the form of custody or visitation is a report addressed primarily to the judge and attys

1) Make your recommendations clearly

• always speak to custody, residence, visitation, other fam needs (eg.therapy)
• always explain why you are deciding these things

2) If asked/supoenaed to appear before court for deposition or trial, cooperate; but know and assert your rights.

• usually can establish good amount of control over scheduling
• answer Qs as best as you can
• don't try to answer Qs you can't

3) Employ a lawyer to help you prepare for testimony

• court appearances should only be undertaken with careful preparation

The second major function of MFTs serving in the role of treatment specialist; courts are continually in need of info regarding referral resources, particularly fo ruse in the disposition of minors and their familires.

Resource Expert

1) Knowledge of treatment modalities

2) Constant updating of info on facilities providing treatment.

To the court, it is the quality of information and the credibility of the treatment specialist that are crucial.

Evans (1983) asserted that the following information regarding referral resources should be submitted to the court: (3)

1) Primary Program Characteristics

2) Relationship of the Facility/program to the Court

3) Inventory of other Available Programs

When providing information describing the primary program characteristics, the treatment specialist should be prepared to offer his/her primary recommendation given the circumstances of the case and his/her understanding of the way the recommendation will fit with available referral resources.

This includes a detailed description of: (7)

1) services offered

2) clients served

3) referral procedure

4) cost and duration of structured programs

5) funding sources and location

6) director or contact person

7) telephone number

1) program facilitators acceptance of court referrals requiring them to report back to the court or make court appearances

2) payment

3) acceptance of juvenile offenders

4) ethical implications of accepting court-ordered referrals

1) reputation

2) outcome of program involvement

3) treatment modality used

***The third function of MFTs as treatment specialists which involves providing direct treatment services to families and their individual members at various points during the court process.

Works closely w/ court and assoc state social service personnel to formulate and facilitate families' follow-through on treatment plans designed to protect children and improve family situation; primary purpose of preserving family system.

Treatment Provider

Juvenile Court Proceeding

An evidentiary trial in which the state must prove to a judge that a child has been abused or neglected. Unless parents admit to abusing or neglecting their child, it is necessary to call witnesses to substantiate the allegations of abuse or neglect.

• Normally occurs from 2-6 weeks after the initial petition is filed.
• state need not prove beyond a reasonable doubt, but only by a preponderance of evidence

Adjudicatory Hearing

Bifurcated Proceedings

Hearing which focuses on those recommendations made to the judge regarding the appropriate order for the child; analogous to the sentencing hearing in a criminal case.

Important point: court has leverage over parents only by its jurisdiction over the child.

• Court cannot directly enforce its orders against parents of a child by fines, imprisonment, or threats of either.
• Court can, after proving abuse/neglect,  order that child remain in home of parents on provision that entire family participate in therapy efforts.

Dispositional Hearing

A cooperative dispute resolution process in which a neutral intervener helps disputing parties negotiate a mutually satisfactory settlement of their conflict.

Used increasingly as an alternative to court action; stresses honesty, informality, and open/direct communication, as well as facilitates emotional expressiveness, attention to underlying causes of disputes, reinforcement of positive bonds, and avoidance of blame.

Mediation

***Mediation begins with the understanding that it is the clear intention of the family to physically break up. The task of the mediator is then to create an environment in which productive negotiation in areas of conflict can occur.

***Generally, the mediation process is viewed as progressing in stages: (5)

1) Setting the stage 

2) Defining the issues 

3) Processing the issues 

4) Resolving issues 

5) Formalizing an agreement 

1. providing a neutral setting
2. introducing oneself as mediator
3. establishing ground rule
4. gaining disputants' commitment to mediation

...eliciting facts and expression of needs, desires, and feelings.

1. managing emotions
2. encouraging empathy
3. narrowing differences
4. exploring solutions
5. maintaining positive momentum

1. offering concessions
2. evaluating alternative solutions
3. tentatively coming to an agreement

1. is realistic and positively framed
2. has details specified in a concrete, understandable manner to ensure implementation by all concerned

Recognition by the courts that family influences play a sig. part in determining litigants behavior has expanded the role of MFTs to encompass that of ________, one who formulates a presented opinion in court based on his/her specialized knowledge.

Ideally, detached, neutral indiv. who simply and informatively presents the true facts as he sees them; impartial, free from prejudice, and does not act as advocate for either side.

EXPERT WITNESS

1) Rules of Evidence

2) Courtroon Testimony

 Rules of Evidence

1. they evolved to promote the goals of the law, specifically, to facilitate a fair trial,
2. a judge reaches a solution to a problem on basis of evience
3. they are of the utmost importance as they determine what will be allowed to come before the court.
4. without allegiance to which, no professional function in the legal system can occur

1) solve presenting problems in a timely manner

2) find solutions applicable to persons with similar problems

3) reach a solution to a problem on basis of presented evidence

The ________ may offer opinions or inferences based on indirect observation and may respond to hypothetical questions.

In contrast, the ________ must have had direct contact witht he action or expression - otherwise, the testimony would be hearsay and not admissible.

• Expert Witness
• Lay Witness

Testimony based on indirect observation (i.e. cite data collection from another professional, or home visit report made by child svcs worker).

Must be such that the state of the present scientific body of knowledge permits a reasonable assumption by an expert.

Opinion Testimony

1) cite their qualifications relevant to their professional knowledge on the subject

2) enter a copy of their professional credentials into the court record

Make up another area where experts may be allowed to testify without firsthand, observation-based knowledge of the parties involved.

Judges are free to decide whether to allow testimony based on such facts, which closely parallel the characteristics of the parties or circumstances of the current case.

Hypothetical Questions

If testimony based on hypothetical facts were erroneously admitted, it would present the probable basis for appeal. For example:

A judge could be led to believe that certain data were obtained through normally accepted data collection methods of a profession and therefore qualified as an exception to the _______.

If the methods were not commonly used, however, the information would be unsubstantiated and appeal may be in order.

Hearsay Rule

Cross Examination

1) an essential safeguard of the accuracy and completeness of testimony

2) a right, and not a mere privilege

The premise that the opportunity for cross-examination is an essential safeguard has bee the principal justification for the: (2)

1) exclusion generally of hearsay statements

2) admission as an exception to the hearsay rule of reported testimony taken at a former hearing when the present adversary was offorded the opportunity to cross-examine.

Confrontation

***Courtroom testimony should reflect expertise and most importantly, complete candor. The most important method for expert witnesses in achieving this is through thorough  ________ for testimony each stage of examination: (3)

Preparation

1) Direct Examination

2) Cross-Examination

3) Redirect Examination

***The successful presentation of testimony depends to a large degree on the willingness of the witness and requesting attorney to prepare for court.

There are a number of preparatory steps that expert witnesses should concern themselves with: (5)

1) Provide requesting atty w/ written list of qualifications

         -(i.e. edu, yrs in practice, publications, other relevant

         info demonstrating familiarity w/ subject of testimony)

2) If testimony involves particular client, review & become familiar w/ client's records

           -particularly frequency of sessions

3) Acquire a rudimentary understanding of the legal  issues involved in the case.

4) Insist requesting atty prepare/discuss Qs he intends to ask on direct examination.

          -atty should assist in anticipating/discussing Qs likely

            asked on cross examination

          -address issues of confidentiality/privilege

5) If first time to testify as expert witness, visit a court in session in advance

          -observe the examination and cross-examination of a number of witnesses

***Examination of the expert witness in which the requesting atty presents their side of a case.

• goal is to present the technical aspects of the case in layperson's terms so that the judge and, when present, jury may understand.
• atty cannot lead the witness; witness must testify w/out aid of suggestions from atty conducting examination

Direct Examination

1) judge or jury is ultimate decider of what is fact in a case.

• thus, in presenting testimony to the fact finder, the witness may enhance effectiveness and cridibility by carefully attending to his/her courtroom image.

***Examination, following the direct examination, in which the opposing atty will attempt to discredit the expert witness by asking leading Qs and framing Qs in a manner that requires a "yes" or "no" answer favorable to that atty's position in the case.

Opposing atty generally seeks to test the credibility of both the expert and the substance of their testimony.

Cross-Examination

In cross-examination, the opposing atty may ask one or more trick questions in an effort to discredit the expert witness.

Other common methods of attempting to descredit the expert witness include challenging the: (5)

1) thoroughness of an evaluation by asking if the examiner was aware of certain facts when performing an evaluation

2) witness by the use of treatises (formal work on subject) giving an opinion contrary to that of the witness

3) witness by attempting to demonstate that his/her viewpoint, as presented on direct examination, is either internally inconsistent or has changed over time

4) expert by attempting to demonstrate that he/she is incompetent because of a lack of necessary training or experience

5) expert by attempting to show that he/she has a financial interest in the outcome of the case

• Demeanor
• Presentation Style

Redirect Examination

PROFESSIONAL LIABILITY

behaving responsibly

1. Contract Law
2. Unintentional Torts
3. Malpractice
4. Intentional Torts

***Body of law that governs oral and written agreements associated with exchange of goods and services, money, and properties.

Contract Law

***Relationship which exists when there is a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of one reposing the confidence.

• Contractually, MFTs legal responsibility to their clients and thus their liability comes from a conception of the therapist-client relationship  as such.

• based on trust; therapist cannot serve own needs in preference to the client

Fiduciary Relationship

Schultz (1982) stated that a therapist is not strictly fiduciary because the commonly called-for requirement of absolute candor is normally not present as:

______, instances where the therapist withholds info in interest of the patient and treatment, may contraindicate it; and the maintenance of early ______, so that later confrontations may be handled, also cuts into degree of candor best serving the patient.

Despite this concept, the therapeutic relationship is still a fee-for-serveces relationship which has implied contractual elements and legal responsibility, and thus liability is present through contract law.

• Therapeutic Privilege
• Rapport

written contracts

A type of harm done to an individual, which may be intentional or unintentional, in such a manner that the law orders the person who inflicts the harm to pay damages to the injured party.

A civil wrong that does not arise out of contractual liability, but out of responsibility to protect individuals from harm resulting from socially unacceptable behavior.

Tort

Unintentional Torts (Malpractice)

1)Professional Relationship

          -therapist-client relationship was established

2) Standard of Care

          -therapist conduct fell below acceptable standard

3) Proximate Cause

          -conduct was the cause of client injury

4) Injury

          -an actual injury was sustained by client

***Usually, the easiest of the four element required to prove malpractice; normally a bill for therapist's services is sufficient evidence.

Causal conversations could be interpreted by courts as such if MFTs listen to a person's personal problems and offer advice regarding the situation.

Professional Relationship

Standard of Care

In writing on tort liability, Prosser (1971) clarified that a ______ must be a recognized one with definite principles, and it must be the line of thought of at least a respectable minority of a profession.

In addition, there are minimum requirements of skill and knowledge as to both diagnosis and treatment, particular in light of modern licensing statutes which anone who holds himself out as competent to treat human ailments is required to have, regardless of personal views.

School

1) if therapist does not profess membership (e.g. advocated a professional eclecticism)

          - then held to standard of care of a therapist in good standing who will be called on

            to testify as expert

2) if the approach is so innovative that the therapist is the only person capable of expert testimony

          -then testimony held to a general standard of reasonableness as evaluated by a

            judge or jury

Traditionally, the standard of care for psychotherapeutic practice based on what other practitioners in the same geographical area would do under similar circumstances.

Still predominant frame of reference; however, as info is becoming increasingly accessible, it is being replaced by national standards of practice.

Locality Rule

1) knowledge or skill possessed by other practitioners

OR

2) care, attention, or diligence exercised in the application of that knowledge or those skills

Proximate Cause

Proximate cause is easiest to prove if the acts and the injury in question are closely related in time. As time btw act and injury increases, the opportunity for intervening variable tointerced increases. Therefore, states arbitrarily set ________ on negligence cases, thereby setting a limit on liability.

Note:

     -those in ones own jurisdiction and whether dated from day of actual injury or of

      discovery of the injury

     -a minor's right to sue begins at coming of age

Statutes of Limitations

A major defense against allegations of malpractice is the concept of __________ on the client's part as an intervening cause, breaking the chain of causality btw therapist's acts and the injury.

• Must prove client's acts fell below the level of self-care that the average person would have exercised under the same or similar circumstances.
• Not normally applicable to children or clients whom a judge has declared mentally incompetent

Contributory Negligence

Injury

1) Exacerbation of presenting symptoms

2) Appearance of new symptoms

3) Client misuse or abuse of therapy

     - settling into dependent rel, increased avoidance of action, therapy as place to

       ventilate and rationalize hostility, increased reliance on irrationality/spontaneity to

       avoid reflection

4) Clients' overextending themselves in taking on tasks before they can adequately achieve them, possibly to please therapist or due to inappropriate directives, leading to failure, guilt, or self-contempt

5) Disillusionment with therapy, leading to feelings of hopelessness in getting help from any relationship

Damages

1) Compensatory

2) Punitive

Compensatory

Punitive

1) Standard of Care

          -Barring gross misconduct, the large range of treatment options allows for great

           latitude in acceptable care. 

2) Proximate Cause

          -Because the natural course of mental illness  is still an uncertain concept, it is

           difficult to prove that a therapist's action or inaction cause an alleged injury, as it

           may be explained as a natural consequence of the illness

Torts in which the relative clarity of the elements of proof make them easier to prevent but harder to defeat in court when reality-based allegations are made.

• expert testimony no required
• questions raised demand clear-cut "yes" or "no" answers as opposed to variable assessments of acceptability or proximate causation.

Intentional Torts

1) Battery

2) Defamation

3) Invasion of Privacy

4) Infliction of Mental Distress

5) Malicious Prosecution and False Imprisonment

Battery

In cases of battery, although the act must be willful on the part of the therapist, it does not have to be based on proving intent to harm the client.

The elements needed to be proved in this tort include: (3)

1) Proximate Cause

2) Injury

3) Lack of Informed Consent (most important)

***The offense of injuring a person's character, fame, or reputation by false and malicious statements.

• May be oral (as in slander), or written (as in libel).
• Must be made public and must be injurious to the reputation of the plaintiff

Defamation

1) an absolute bar to liability is that the statement is true

2) an informed consent to release the info would indicate that the plaintiff had no reason to bar the info from public

3) the defendant can invoke the doctrine of qualified privilege

Qualified Privilege

1. The info must be presented in good faith and not malice
2. There must be a legitimate social duty to release info
3. The disclosure must be limited in scope to what is necessary to discharge the duty
4. The disclosure must be only to the appropriate parties with a right to know

A violation of the right to be left alone. It requires that private facts be disclosed to more than a small group of persons and that the information be offensive to a reasonable person or ordinary sensibilities.

Requires unreasonable or offensive conduct such as making phone calls to patient's place of work and identifying self as a therapist, sending bills and correspondence to a patient with identification of relationship to patient, or even the presence of nonessential staff in treatment settings.

Invasion of Privacy

Invasion of Privacy can be distinguished from defamation in that: (3) 

1. even complimentary statements can be considered an intrusion, 
2. need not require publication of the information, only an intrusion into an individual's private spheres.
3. it is the fact of the invasion itself that is the question in this tort, regardless of the intent or negligence

Informed Consent

***Tort which normally requires outrageous conduct by the defendant in which the harm done involved emotional pain, distress, or suffering.

Most cases have required the existence of physical injury resulting from the distress as well. 

Infliction of Mental Distress

Malicious Prosecution

False Imprisonment

deprivation of Liberty

Resources exist that can help MFTs understand basic concepts in law. For MFTs - legal laypersons - several distinctions are of particular concern: (6)

1) Common Law

2) Constitutional Law

3) Statutory Law

4) Administrative (Regulatory) Law

5) Case Law (Court Decisions)

6) Criminal vs. Civil Law

The fundamental law of the U.S.; derived from English law, its authority stems from tradition and usage, not legislation.

• Regarded as expressing the usage and customs of immemorial antiquity common to the people of England.
• Conceptually, it represents the belief that law does not have to be derived only from written sources.

Common Law

Laws found in the U.S. government, and each of its states and territories, which provide basic principles that cannot be violated by other types of law.

Constitutional Law

Consists of those laws passed by a legislative body, such as a state legislature or Congress, and signed into law.

• Exist in each of the 50 states, in the U.S. territories, and at the federal level.
• Binding only in the jurisdiction where they were passed.

Statutory Law

Laws passed by the U.S. Congress and state legislatures delegating broad rule-making authority to specialized agencies.

The rapid growth of these agencies made it clear that Congress and state legislatures could not effectively promulgate the rules required to regulate all areas of government control as highly specialized areas required knowledge and time beyond the limits of the average legislator.

Administrative (Regulatory) Law

A body of legal decisions that, when taken collectively, create rules for decision making.

Case Law (Court Decisions)

In Case Law, typically, statutes prescribe certain legal principles. Legislation, however, is frequently written in broad terms, and thus courts apply, interpret, and fill in the intricacies in the statutes.

Courts take into consideration: (2)

1) A statute and its legislative history and then decide what the legislators actually intended.

2) Any bearing that higher laws (i.e. state or federal constitution) may have on the interpretation of the statute in question.

Under this doctrine, when a court interprets and applies common law, statutes, or regulations to the facts of a case, that court and lower courts in the same jurisdiction are bound to apply that precedet to future cases with similar facts.

Though, other courts may regard such decisions, depending on the number and reasoning, as persuasive albeit not binding.

• "Let the decision stand."
• Case Law accumulates on the basis of this

Stare Decisis

An understanding of 5 component parts is helpful in interpreting court decisions (Shea, 1985):

1) Facts

2) Issue

3) Rule

4) Holding

5) Dicta

Form the basis for a court's decision on a case. In a jury case, they are determined by the jury. In a nonjury case, a trial judge makes these determinations.

Facts

The decisional focus of a case. Parties attempt to focus a judge's attention on those of a case most favorable to their position. Ultimately, the judge decides what they are regarding his or her decision.

Issue

A statement of the law that is applied to the facts. Often incomplete or ambiguous, requiring the court to interpret them. Such an interpretation then becomes a _____ in that it is a statement of law developed by the court.

• Serves as a precedent, especially in the decision of an appelate court. Once stated in a decision, only that cort or a higher court may alter it.

Rule

The outcome of a decision, the result of the rule applied to the facts, and who wins or loses in court.

Holding

In a decision, a court may discuss rules that are not directly related to the facts of a present cace. 

When a court states a rule that is not necessary for deciding a case, the rule is referred to as an ______ or ______(plural), which provide guidance but do not constitute binding precedent for lower courts

• Obiter Dictum
• Dicta

Pertains to acts offensive to individuals. Provides a framework within which claims by one party or parties against another are adjudicated before a court.

• The remedy is often some compensation to the victim.

Civil Law

Pertains to acts offensive to society in general.

• The ultimate remedy for harms inflicted in violation of these laws is punishment of the violator in the name of the state.

Criminal Law

Ruback (1982) asserted that MFTs may assume 3 major roles within the legal system as a(n):

1) Source of Information leading to intervention by the state

2) Resource for therapy services

3) Expert Witness

In examining the MFT as a source of information, 3 general areas of legal obligations are to be considered: 

1) Confidentiality, Privileged Communication, & Records

2) Duty to Protect

3) Child Abuse & Neglect

Because clients have an expectation of privacy when receiving MFT services and MFTs have an ethical duty to maintain the privacy of their clients regarding the information they learn in therapy sessions, a legal duty exists for MFTs to maintain the __________ of their clients.

Confidentiality

There are many exceptions to the duty to keep therapy information confidential, including when: (4)

1) Client is determined to be a danger to self or others

2) Client requests private info be provided to a third party

3) Child abuse/neglect suspected from learned information 

4) Court orders that confidential information be disclosed

Therapists cannot produce info in response to a subpoena if the information is _________. However, if info is not privileged, therapists must comply with subpoena and produce either testimony or record.

Privileged

Because state and federal statutes and case law determine whether information in privileged and whether exceptions exist to any privilege, it is essential that MFTs obtain ________ before complying with subpoenas they receive.

Legal Advice

3 conditions emanating from the Tarasoff decision create a Duty to Protect for the therapist, including a:

1) Special Relationship

2) Reasonable Prediction of conduct constituting a threat

3) Forseeable Victim

In Tarasoff, the court noted that generally one person doesnot have a duty to control the conduct of another. However, an exception to this was established for instances in which one person has a special relationship: (3)

1)  to the person whose conduct needs to be controlled

OR

2)  to the forseeable victim of that conduct

3)  which is found to exist in the factual context of the case

***court held that therapist-client relationship met test for special relationship

The second condition required to create a Duty to Protect is a determination that a client's behavior _________________.

Needs to be Controlled

The third and final condition that gave rise to the Duty to Protect was a ________ which ay be readily identifiable, though not necessarily specifically named by the client.

Foreseeable Victim

Physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child

• under the age of eighteen or the age specified by the child protection law of the state in question, 
• by a person who is responsible for the child's welfare, 
• under circumstances which indicate that the child's health or welfare is harmed or threatened thereby.

Child Abuse/Neglect

Primarily within the juvenile justice system and in civil actions addressing issues renging from adoption to divorce to child custody, MFTs assume the role of a ________ in which they are called on by the courts for informational as well as therapeutic intervention assistance.

Referral Resource

As a referral resource within the criminal justice system, MFTs having the clinical and academic training/experience, and  currently acting in some capacity as Treatment Specialist in the juvenile justice system, serve 3 primary functions: (3)

1) Diagnostician

2) Resource Expert

3) Treatment Provider

A ________ can be be granted by the court, and may be entered if the youth has not been previously adjudicated  a delinquent or if such adjudication has been sealed, under which a juvenile is put on probation up to 6 months without a finding of guilt. (provides supervision w/out stigmatization)

• successful completion of specific terms = petition is dismissed. 
• terms are violated = petition may be reinstated/forced to stand trial.

Consent Decree

A youth who is habitually truant from school w/out justification or disobedient of the reasonable and lawful commands of parents, guardians, or other custodians and is thus ungovernable & in need of care/supervision.

• when parents/social agencies unable/unwilling to find solution for troubled child, its in society's interest to try, through legal system

• youths typically placed in facilities for delinquents only if they have been adjudicated as such more than once

Person in Need of Supervision (PINS)

The primary aim of the court is to _____________ unless such preservation endangers the welfare of a child.

preserve the family bond

In order to preserve the family bond, when child abuse and neglect allegations are brought before it, a judge attempts to first: (2)

1) Arrange dispositions that permit parents to maintain custody unless harmful to children

2) Order families to seek medical, psychiatric, or other treatment services if parents want to maintain custody

Lebow (1992) proposed twenty guidelines for MFTs to consider in systematically evaluating custody disputes. 3 important guidelines to remember for the exam are:

1) Make your recommendations clearly

• always speak to custody, residence, visitation, other fam needs (eg.therapy)
• always explain why you are deciding these things

2) If asked/supoenaed to appear before court for deposition or trial, cooperate; but know and assert your rights.

• usually can establish good amount of control over scheduling
• answer Qs as best as you can
• don't try to answer Qs you can't

3) Employ a lawyer to help you prepare for testimony

• court appearances should only be undertaken with careful preparation

The second major function of MFTs serving in the role of treatment specialist; courts are continually in need of info regarding referral resources, particularly fo ruse in the disposition of minors and their families.

Resource Expert

The third function of MFTs as treatment specialists which involves providing direct treatment services to families and their individual members at various points during the court process.

• Works closely w/ court and assoc state social service personnel to formulate and facilitate families' follow-through on treatment plans designed to protect children and improve family situation; primary purpose of preserving family system.

Treatment Provider

In emergency situations in which there is imminent danger to the child in remaining with the parents, the child may be removed from the custody of the parents and placed in protective custody pending the outcome of the __________.

Juvenile Court Proceeding

An evidentiary trial in which the state must prove to a judge that a child has been abused or neglected. Unless parents admit to abusing or neglecting their child, it is necessary to call witnesses to substantiate the allegations of abuse or neglect.

• Normally occurs from 2-6 weeks after the initial petition is filed.
• state need not prove beyond a reasonable doubt, but only by a preponderance of evidence

Adjudicatory Hearing

Proceedings in which the decision about what should be done with the child occurs in a separate hearing from that which determines whether the child is, in fact, abused or neglected.

Bifurcated Proceedings

Hearing which focuses on those recommendations made to the judge regarding the appropriate order for the child; analogous to the sentencing hearing in a criminal case.

Important point: court has leverage over parents only by its jurisdiction over the child.

• Court cannot directly enforce its orders against parents of a child by fines, imprisonment, or threats of either.

• Court can, after proving abuse/neglect,  order that child remain in home of parents on provision that entire family participate in therapy efforts.

Dispositional Hearing

Mediation begins with the understanding that it is the clear intention of the family to physically break up. The task of the mediator is then to create an environment in which productive negotiation in areas of conflict can occur.

Generally, the mediation process is viewed as progressing in stages: (5)

1) Setting the stage 

2) Defining the issues 

3) Processing the issues 

4) Resolving issues 

5) Formalizing an agreement 

Recognition by the courts that family influences play a sig. part in determining litigants behavior has expanded the role of MFTs to encompass that of ________, one who formulates a presented opinion in court based on his/her specialized knowledge.

Expert Witness

The Rules of Evidence are important to understand because: (4)

1. Promote the goals of the law; facilitate a fair trial

2. Judge makes decision on basis of evience

3. Determine what will be allowed to come before the court.

4. Without them no professional function in legal system can occur

MFTs can tailor a therapeutic plan to the needs of the clients. Judges, however, cannot afford this luxury as they must find solutions to problems: (3)

1) in a timely manner

2) applicable to persons with similar problems

3) on basis of presented evidence

Courtroom testimony should reflect expertise and most importantly, complete candor. The most important method for expert witnesses in achieving this is through thorough  ________ for testimony at each of the 3 stages of examination: 

Preparation

1) Direct Examination

2) Cross-Examination

3) Redirect Examination

The successful presentation of testimony depends to a large degree on the willingness of the witness and requesting attorney to prepare for court.

There are a number of preparatory steps that expert witnesses should concern themselves with: (5)

1) Provide requesting atty w/ written list of qualifications

2) If testimony involves particular client, review & become familiar w/ client's records

3) Acquire a rudimentary understanding of the legal  issues involved in the case.

4) Insist requesting atty prepare/discuss Qs he intends to ask on direct examination.

5) If first time to testify as expert witness, visit a court in session in advance

Examination of the expert witness in which the requesting atty presents their side of a case.

• goal is to present the technical aspects of the case in layperson's terms so that the judge and, when present, jury may understand.

• atty cannot lead the witness; witness must testify w/out aid of suggestions from atty conducting examination

Direct Examination

Examination, following the direct examination, in which theopposing atty will attempt to discredit the expert witness by asking leading Qs and framing Qs in a manner that requires a "yes" or "no" answer favorable to that atty's position in the case.

• Opposing atty generally seeks to test the credibility of both theexpert and the substance of their testimony.

Cross Examination

After cross-examination is concluded, the requesting atty who originally called the expert witness will have the opportunity for ________, giving the atty and witness the opportunity to offer clarification on any points made by the opposing atty during cross-examination.

• a further round of cross-examination may follow.

Redirect Examination

Legal obligations arising out of a professionals errors, negligent acts, or omissions during the course of practice of his/her craft.

• always implicit and frequently explicit in legal discussions regarding the practice of MFT is the concept of therapists' responsibility

Professional Liability

MFTs major areas of legal responsibility and thus liability are centered on civil liability, including: (4)

1. Contract Law
2. Unintentional Torts
3. Malpractice
4. Intentional Torts

Body of law that governs oral and written agreements associated with exchange of goods and services, money, and properties.

Contract Law

Relationship which exists when there is a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of one reposing the confidence.

• Contractually, MFTs legal responsibility to their clients and thus their liability comes from a conception of the therapist-client relationship  as such.

• based on trust; therapist cannot serve own needs in preference to the client

Fiduciary Relationship

A type of harm done to an individual, which may be intentional or unintentional, in such a manner that the law orders the person who inflicts the harm to pay damages to the injured party.

• A civil wrong that does not arise out of contractual liability, but out of responsibility to protect individuals from harm resulting from socially unacceptable behavior.

Tort

The failure to render proper service, through ignorance or negligence, resulting in injury or loss to the client.

Unintentional Torts (Malpractice)

In order to prove malpractice, 4 key elements most be shown to be present:

1)Professional Relationship

          -therapist-client relationship was established

2) Standard of Care

          -therapist conduct fell below acceptable standard

3) Proximate Cause

          -conduct was the cause of client injury

4) Injury

          -an actual injury was sustained by client

Usually, the easiest of the four element required to prove malpractice; normally a bill for therapist's services is sufficient evidence.

• Casual conversations could be interpreted by courts as such if MFTs listen to a person's personal problems and offer advice regarding the situation.

Professional Relationship

Usually more difficult to establish in a given case as there are numerous schools within the psychotherapeutic community advocating different treatment approaches in the same presenting problem, so almost any treatment activity will probably be endorsed somewhere.

Standard of Care

The standard of care for psychotherapeutic practice based on what other practitioners in the same geographical area would do under similar circumstances.

• Still predominant frame of reference; however, as info is becoming increasingly accessible, it is being replaced by national standards of practice.

Locality Rule

Once a breach of standard of care has been shown to have occurred, that breach must be proved to be the ________, or that which produced the injury in question in a natural and continuous sequence, unbroken by any independent intervening causes.

Proximate Cause

If proximate cause is proved, a(n) _____ must have resulted from it.

Injury

If the four key elements of malpractice are proved, then the plaintiff will be awarded _______, which may be: (2)

Damages

1) Compensatory

2) Punitive

A number of difficulties arise when plaintiffs seek to prove the four elements in a malpractice action. These difficulties center primarily on the inherent vagueness in 2 elements:

1) Standard of Care

• Barring gross misconduct, the large range of treatment options allows for great latitude in acceptable care. 

2) Proximate Cause

• Because the natural course of mental illness  is still an uncertain concept, it is difficult to prove that a therapist's action or inaction cause an alleged injury, as it may be explained as a natural consequence of the illness

Torts in which the relative clarity of the elements of proof make them easier to prevent but harder to defeat in court when reality-based allegations are made.

• expert testimony not required
• questions raised demand clear-cut "yes" or "no" answers as opposed to variable assessments of acceptability or proximate causation.

Intentional Torts

5 major intentional torts normally filed:

1) Battery

2) Defamation

3) Invasion of Privacy

4) Infliction of Mental Distress

5) Malicious Prosecution and False Imprisonment

The unconsented touching of a person which gives rise to a legal action in tort, even if that touching as a treatment is for the welfare of the patient and actually benefits the patient.

Battery

In cases of battery, although the act must be willful on the part of the therapist, it does not have to be based on proving intent to harm the client.

The elements needed to be proved in this tort include: (3)

1) Proximate Cause

2) Injury

3) Lack of Informed Consent (most important)

The offense of injuring a person's character, fame, or reputation by false and malicious statements. 

• May be oral (as in slander), or written (as in libel).
• Must be made public 
• Must be injurious to the reputation of the plaintiff

Defamation

There are 3 avenues of defense in the defamation tort:

1) Absolute bar to liability is that the statement is true

2) Informed consent to release the info would indicate that the plaintiff had no reason to bar the info from public

3) Defendant can invoke the doctrine of qualified privilege

The overreaching social duty to release information.

Qualified Privilege

The defendant can invoke the doctrine of qualified privilege under the following 4 conditions:

1. The info must be presented in good faith and not malice

2. There must be a legitimate social duty to release info

3. The disclosure must be limited in scope to what is necessary to discharge the duty

4. The disclosure must be only to the appropriate parties with a right to know

A violation of the right to be left alone. It requires that private facts be disclosed to more than a small group of persons and that the information be offensive to a reasonable person or ordinary sensibilities. Requires unreasonable or offensive conduct such as

• making phone calls to patient's place of work and identifying self as a therapist
• sending bills and correspondence to a patient with identification of relationship to patient
• the presence of nonessential staff in treatment settings.

Invasion of Privacy

Tort which normally requires outrageous conduct by the defendant in which the harm done involved emotional pain, distress, or suffering.

• Most cases have required the existence of physical injury resulting from the distress as well. 

Infliction of Mental Distress

Tort which is relatively difficult to prove as it requires proof of malicious intent on the part of the plaintiff or prosecutor of the underlying case; even grossly destructive behavior can occur without the requisite malice.

Malicious Prosecution

Tort normally brought as an action when the sufficiency of an examination or treatment is questionable, particularly in cases of involuntary commitment.

False Imprisonment

The injury sustained in both malicious prosecution and false imprisonment torts is usually ____________.

Deprivation of Liberty