June 1st, 2012

Advice given to avoid professional legal pitfalls

In a profession regulated by rules and boundaries established by governing bodies (and often, more personal ones practitioners impose on themselves), the legal issues that ensnare today’s psychologist far outnumber what faced their predecessors just 10 years ago. But according to experts in the field – folks who are used to doling out advice to those who dole out advice – pre-emptive thought about one’s actions can mean the difference between legal safety and a legal snafu.

Milton L. Kerstein is a 25-year attorney and a managing partner at Kerstein, Coren and Lichtenstein, LLP, in Wellesley, Mass., where he counsels a number of psychologists and psychiatrists. Although there’s no pattern to the problems clients bring, Kerstein “thinks the context has changed more than anything” as patient behavior is forcing therapists to more aggressively protect themselves.

“Patients are taking more advantage of their psychologist,” says Kerstein, whose clients often need help handling issues of confidentiality and record retention, and subpoenas and depositions whenever they arise. “We are seeing more patients filing complaints because either they owe their psychologists money or there are fee disputes. There have always been fee disputes…but given the degree of our litigious society, it’s important for practitioners to practice proactively.”

An issue in people’s practices that wasn’t there a decade ago is a heightened need to be tech savvy at least when it comes to social media and listening to one’s gut about how much is too much to release into the information universe.

For eight years, Rosanna Lak has been the executive director of the Vermont Psychological Association (VPA), an organization known for providing numerous continuing education courses and general programming to keep its membership informed of the issues of the day.

The VPA’s programming is often geared toward helping psychologists nip problems before they start. Six to seven lectures each year focus on things like psychopharmacology (so that psychologists become vigilant about knowing what medications their patients are taking and how they can affect their treatment), best practices for risk management and the legal ramifications of some of the daily decisions and issues with which psychologists are faced. A major topic is the risk of over-sharing on social media sites and one social media site in particular.

“There are many different areas where psychologists have to wake up,” says Lak. “If you’re a psychologist on Facebook or a similar site, what should you not put on a site knowing it’s public?” she warns. “Years ago, you didn’t have to worry about Facebook. But there is a professional image you need to keep.” She recognizes, however, that wanting to share and connect with one’s community – even when you’re a psychologist – “is a very natural thing.”

With an ethics committee and a library of materials where psychologists can go if they have a legal problem, the VPA points psychologists toward help but neither judges members nor directly advises them on what they should do in light of legal woes. It’s because the VPA’s role is to offer members the educational know-how about the legalities of their profession that Lak – and others in the field – believe in three things psychologists can do to stay legally safe: Be aware, know where to find information and be prepared.

“I think it’s extremely important for psychologists to belong to their psychological association,” says Lak, because they stay abreast of the newest information relative to psychologists that can help make their practices better. “The only way we can do that is to be very strong and to have many voices.”

“I think the biggest challenge for psychologists today is to practice psychology with mindfulness,” says Kerstein. “You’ve got to be mindful – not only of patient treatment and needs but also of your legal obligation. You also have to be mindful of the expectations of your licensing board.”

Peel away the need to avoid Facebook foibles and the same age-old legal problems still plague psychologists. Edward M. Stern, J.D., is the assistant dean for Prelaw Advising at Boston University, and a senior lecturer for UMass Boston’s Department of Sociology. Stern, also has a private law practice in Newton, Mass. and is a contributing columnist to New England Psychologist, says the two biggest issues on which he’s counseled over the years involve record keeping and boundary issues.

Stern is blunt about how most practitioners he counsels seem to deal with the same paperwork issues again and again. “Although psychologists complain about making a living and about insurance and co-payment issues, most of what [they] discuss involves record keeping,” he says. “I always shake my head if there is not a complete record of client contact and treatment. This includes billing records as well. A few minutes more at each critical moment to document something will always be a good thing.”

To combat the paperwork problem, Stern says that no psychologist should speak with anyone, in or out of a clinical session, about anything professionally connected without having professional liability insurance in place. “A psychologist is a psychologist whenever opinions are offered,” he says. “Liability is not limited to sessions.”

Aside from the cyber and paperwork problems that can lead to litigation, Lak reminds that old-fashioned interpersonal issues or concerns that arise as we watch our colleagues practice can often lead to needing some legal counsel. “At what point do you say something to a colleague or approach a colleague about an issue?” she asks. “When do you give them peer support or strength?” The VPA, and other state associations, helps its membership answer such questions.

Kerstein has one suggestion for psychologists anywhere: Call someone directly for help…and preferably someone who knows more than you do.

“I know people don’t want to pay for lawyers, but the reality is if they have a legal problem – if they’re served with a subpoena, etc. – they should call a lawyer right away,” he says. You don’t want to wait until you’re already enmeshed. The more advanced warning you can give your lawyer, the better.”

By Jennifer E Chase

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