COMMON CLINICAL CONUNDRUMS

Some food for thought … I hear these same issues in consultations over and over. No simple answers. Balancing risk versus benefit, which is why consultations are sometimes necessary.

Some food for thought … I hear these same issues in consultations over and over. No simple answers. Balancing risk versus benefit, which is why consultations are sometimes necessary.
Here is one for this month – feel free to email me with ideas and I will share them in the next newsletter.

March’s Conundrum: One of my participants in the March 12th webinar thought of a hypothetical following the webinar, which I wish we had discussed in the session because it is an issue that arises occasionally in consultations. Here is the issue:

If a mental health professional is subpoenaed to testify, is s/he going to testify as an expert witness or as a fact witness? I have had clinicians tell me that they were told by attorneys who subpoenaed them that they will only pay them as a fact witness, not an expert witness, so they will not honor the clinician’s rates for testifying in court.

Is this correct? Absolutely not. I tell clinicians to advise those attorneys that if they call them as a fact witness, they will testify only to what is written in the chart – for example, if asked about a child’s anxiety, the therapist with only read the chart and not opine on the clinical impression – because the latter opinion is only given as an expert, not a fact witness.

Trying to get a mental health professional to testify as a fact witness at that payment rate is a game. Do not let yourself be suckered into this. Legal consultation is the answer if you don’t want to argue with the attorney who issued the subpoena, but refused to pay your legal involvement fees.

GROWING MY EMAIL LISTS – YOUR CHANCE TO RECEIVE A DISCOUNTED WEBINAR OR LEGAL CONSULTATION!

I am keeping the offer ongoing at least for the next few months, so please feel free to refer colleagues to me who wish to be on my mailing list for this mental health newsletter and emails regarding upcoming webinars. Here is what I stated in last month’s newsletter:

I would like to reach as many clinicians in Louisiana and Colorado as possible to invite them to webinars and to send them my Mental Health Newsletters. If you refer another clinician to me who requests inclusion on my mental health email lists (CO or LA), and that referred person emails me, asks to join the email list for her/his state, and gives your name as the referring clinician, YOU WILL BE ENTITLED TO 20% OFF A WEBINAR FEE OR 10% OFF A CONSULTATION FEE to be used any time within a year of the referral.

For those who refer MORE THAN ONE CLINICIAN TO MY EMAIL LISTS, YOUR DISCOUNT WILL BE 30% OFF WEBINAR FEE AND 15% OFF A CONSULTATION.

One more caveat: the referred person must be a NEW addition to my email list. My web guy will check it out for us; Brian is the keeper/manager of the lists.

WEBINARS in 2021

Last Friday, March 12th, there were about 30 mental health professionals in the Zoom webinar offered to both Louisiana and Colorado clinicians – Walking the Clinical High Wire with Couples, Families and Legal Involvement: Ethical Management of Risk.

One participant who had sent a couple scenarios to me in advance agreed to present them in our meeting. We had a robust discussion of ideas for her that morphed into other issues and analyses. Quite a fun, engaged, and productive 3 hours.

My upcoming webinar is on a topic that will either intrigue or depress you: The Professional Will. Why would it depress you? Because most of us prefer to avoid the inevitable knowledge that one day we will no longer be around. This topic has been requested by some folks over the years but arises primarily from my several consultations with mental health professionals who had to “pick up the pieces” after a beloved colleague suddenly passed away.

In all my consultations, the mental health provider died, but some situations present a slightly different twist: the therapist suffers a stroke or other type of sudden, debilitating medical event. Poof! Clinical practice is OVER. Suddenly. Without the therapist’s ability to terminate or even email or text her/his clients. How will clients of the suddenly gone therapist be notified that their therapist will no longer be able to see them for their scheduled appointments this coming week?

These experiences that I have been involved with peripherally caused great angst for the mental health professionals who met with me to figure out what to do and how to do it ethically. They were torn between wanting to notify the deceased therapist’s clients but worrying about entering forbidden territory: CONFIDENTIAL MATERIAL IN CLIENTS’ CASE FILES.

This is the type of dilemma that a Professional Will seeks to avoid. Similar to a personal estate Last Will and Testament, the Professional Will involves planning for an untoward event where the therapist himself/herself has suddenly departed. Moreover, because therapist’s clients are notified ahead of time, the concerns about breach of confidentiality are eliminated; the client has given advance consent – and those of you who have attended my trainings in Self-Protective High-Risk Clinical Practice know I am keen on advance consents in your Intake paperwork because client’s agreement in advance helps prevent breach of confidentiality Complaints/Grievances.

Additionally, as you have heard me say frequently in Beyond Ethics, LLC seminars, self-protective practice is not at odds with caring for our clients’ wellbeing, but rather ensures excellence in clinical practice. This is a great example. If you are self-protective and colleague-protective by creating a Professional Will, it also serves to give clients notice concerning who would handle your caseload and reach out to them if something happened to you. Additionally, explaining to clients that you have a Professional Will shows them that you care for them enough to plan ahead to protect their confidentiality and continuation of care should something happen to you.

Anyway, for more on why we need Professional Wills, how to create them, how to advise our clients of their existence, how to prepare our practices and assemble a team of trusted others who will be ready to jump in … and lots more, sign up for Advance Ethical Planning for Therapist’s Unexpected Departure: The Professional Will!!

To register for one of the following webinars, go to https://beyond-ethics.com.

Available for Legal/Clinical Consultation and/or Training:

I am available to provide legal consultations for your high-risk clients or situations. I offer consultations to individual therapists or clinical group (e.g., clinical consultation groups, suite mates, etc.). I often schedule therapist consultations via telephone but can also schedule via Zoom if you prefer.

Additionally, I also can work with you to design custom training for your agencies, academic mental health programs, and small group practices. The trainings I have provided in the past have included a focus on: (1) ethically managing high-risk clinical situations and legal involvement of the therapist, (2) helping therapists prepare for deposition or trial testimony, and (3) responding to a subpoena request for clinical records or therapist testimony at deposition or trial.

Preparation for Depositions or Trial Testifying

I also help clinicians understand how to prepare for depositions and/or trial testifying in the webinars and/or individual consultations. Some clinicians have never testified in a legal proceeding and are extremely anxious. I have helped many overcome this paralyzing anxiety as they practice with me prior to the legal event. Most professional liability insurance will cover legal consultations resulting in the receipt of a subpoena (which is the ONLY way you should be going forward with testifying).

If interested or need additional information, please email me: [email protected].

Deborah (Deb) Henson is an Attorney and LCSW (Tulane School of Social Work, MSW) in private practice in Colorado and Louisiana, specializing in mental health licensing defense. She represents clinicians in DORA grievances (CO) and licensing board Complaints (LA) and regularly consults with clinicians in both states to help them deal with legal and clinical conundrums, such as: (1) the receipt of subpoenas for records or testimony; (2) the escalation of high-risk clinical situations; and (3) other sticky ethical wickets that arise in clinical practice. Deb helps clinicians develop self-protective, clinically sound and legally proper strategies for risk prevention.

Deb has taught in the MSW programs at Tulane University School of Social Work and the University of Denver Graduate School of Social Work. She also serves as Expert Witness for litigation cases around the country involving assertions of malpractice against clinicians. She offers Divorce Mediation long-distance (Zoom; Skype; telephone) in Colorado and Louisiana. See her website for more details.

Deb has been presenting half- and full-day seminars on “Avoiding Ethics Complaints and Malpractice Lawsuits” or “Legal and Ethical Issues in Clinical Practice” around the country through PESI, Inc. for over 7 years and presenting for many CEU groups in Louisiana and Colorado. She also has lectured for Tulane School of Social Work Continuing Education and the University of Texas School of Social Work (Austin) Continuing Professional Development program, and for many other clinical and counseling groups. Deb started her own training biz — Beyond Ethics, LLC — in 2009. Contact Deb for group presentations to agency staff and/or private practice consultation groups.

Deb can be reached through her law and social work web site: www.deborahmhenson.com or through her training web site: www.beyond-ethics.com. Deb can also be emailed at [email protected] or [email protected]. And, you can use the old tried and true method of calling her at 504.232.8884.