The Portable Ethicist for
Mental Health Professionals
A Complete Guide to
Responsible Practice
Second Edition
With HIPAA Update
Thomas L. Hartsell Jr., JD
and
Barton E. Bernstein, JD, LMSW
JOHN WILEY &SONS,INC.

The Portable Ethicist for
Mental Health Professionals
Other Books by the Authors
The Portable Guide to Testifying in Court for Mental Health Professionals:
An A–Z Guide to Being an Effective Witness (2005), John Wiley &
Sons, Inc.
The Portable Lawyer for Mental Health Professionals: An A–Z Guide to
Protecting Your Clients, Your Practice, and Yourself, second edition
(2004), John Wiley & Sons, Inc.
The Portable Ethicist for
Mental Health Professionals
A Complete Guide to
Responsible Practice
Second Edition
With HIPAA Update
Thomas L. Hartsell Jr., JD
and
Barton E. Bernstein, JD, LMSW
JOHN WILEY &SONS,INC.
This book is printed on acid-free paper. *

ISBN 978-0-470-14030-7 (pbk. : alk. paper)
1. Mental health personnel–Professional ethics. 2. Psychiatric ethics. 3.
United States. Health Insurance Portability and Accountability Act of 1996.
I. Bernstein, Barton E. II. Title.
[DNLM: 1. United States. Health Insurance Portability and Accountability
Act of 1996. 2. Psychiatry–ethics. 3. Codes of Ethics. 4. Confidentiality.
5. Professional-Patient Relations–ethics. WM 62 H335p 2008]
RC455. 2.E8B476 2008
174
0
.2–dc22
2007045712
Printed in the United States of America
10987654321
To all of the mental health practitioners who struggle to ethically serve their clients.

Contents
Preface xi
Acknowledgments xix
Introduction xxiii
PART I
CLIENT ISSUES
1. Alternative Treatment Methods 3
2. Boundary Violations 21
3. Confidentiality 33
4. Dangerous Clients 55
5. Discrimination 69
6. False and Misleading Statements 81
7. Informed Consent 97
8. Interviewing 113

viii Contents
PART V
SPECIAL THERAPY CONSIDERATIONS
31. Forensic Evaluation 435
32. Group Therapy 453
33. Don’t Do Dumb Stuff 469
Epilogue: Ethics in the Twenty-First Century 479
APPENDIX A Mental Health Professional Organizations 487
APPENDIX B Allied Healthcare Providers Professional and
Supplemental Liability Insurance Policy 489
APPENDIX C Social Workers Professional Liability Claims-Made
Policy 499
APPENDIX D Sample Jurisprudence Exam Questions 507
References and Reading Material 511
Index 515
Contents ix

Preface
Having been longtime observers of the mental health profession, we
have come to know the value and benefits that its professionals offer
to consumers of their services. Unfortunately, many of the consumers
whom professionals take into therapy try to do them harm in return.
With a proliferation of licensing boards and other regulatory author-
ities, consumers have easier and more numerous options to seek re-
dress for perceived malevolent and negligent acts. With the advent of
the Health Insurance Portability and Accountability Act (HIPAA)
Privacy and Security Rules, mental health professional clients come
to us for assistance with a state licensing board complaint while seek-
ing our help with a duplicate complaint filed by the same client with
the Office of Civil Rights or the Centers for Medicare and Medicaid.

Practitioners must remember, though, that they need to become
knowledgeable about the specific state rules and statutes for the state
and locations where they are providing services. It is not possible in a
book of this length to be state specific, although the major ethical
principles are applicable across the country.
Many years ago, the authors were asked to serve on a panel of
experts; the topic was ‘‘Ethical Problems of Mental Health Professio-
nals.’’ The other two panel members were both providers in the field of
mental health; one was a PhD psychologist employed by a fledgling
managed care company and the other was a clergyman who, at about
age 40, decided to earn a counseling degree and change professions
from the ministry to counseling. Armed with his advanced degree, he
was pursuing a career as a counselor in a group practice.
When we assembled to prepare for the presentation, both mental
health professionals were ready to deal with global questions, such as
counseling with children about abortion, dealing with ‘‘tough love,’’ or
the ethical consequences of needed treatment with limited funds.
They wanted to discuss the big picture, ethical dilemmas that would
make the participants think. These were problems that would evoke a
thought process but would not necessarily provide concrete answers
the participants could rely on and carry back to their offices. So the
question arose: Did the attendees want to learn how to think or did
they seek some practical suggestions about the ethical nuts and bolts
of their profession?
xii Preface
When we suggested that ethics, in our opinion, concerned the pub-
lished ethical canons or codes of their professions, we received only a
blank stare. The psychologist allowed that she had taken an ethics
course in graduate school about 10 years ago but remembered little
about it; while the counselor admitted he had never taken a course

couldn’t agree on anything else, each of the four presenters spoke for
Preface xiii
about 10 minutes followed by a question period. And what were the
questions? Just what we had anticipated. None of the participants were
interested in global issues or clever hypothetical ethical dilemmas that
taxed their intellect to find options or solutions. Instead, they wanted
to know about records, preservation and documentation, prohibited
client relationships, reporting obligations concerning another thera-
pist who was acting inappropriately, and how to deal with managed
care and remain ethical while earning a living.
Most of the participants, licensed people all, were concerned with
self-preservation and making a living in peace. They wanted knowl-
edgeable individuals to discuss the important parts of their specific
ethical canons so they would recognize any ethical problem on the
horizon and could conform their conduct to the requirements of their
local board and national organizations. Perhaps they might be inspired
to read the codes of conduct, but failing that, they would, at least,
through seminars and workshops, understand the crucial points and
most commonly violated rules of their profession. So the lawyers an-
swered specific and general questions like these: How long does the
professional have to keep and preserve records? What is therapeutic
confidentiality? Is what is told to a therapist 100 percent confidential?
What happens, ethically, if you know a colleague has had sex with a
client or is impaired by drugs or alcohol?
What we discovered in our prepanel conversation with the counse-
lor and the psychologist was frightening. Professionals who had grad-
uated from universities only a few years ago might have been exposed
to a course in ethics, while those who received their degrees more
than 10 years ago viewed professional ethics in summary: ‘‘We know
the difference between right and wrong, and we don’t do what’s

Practitioners are anxious to know, understand, and honor the rules
and regulations of their profession. Once they put these command-
ments in place, practitioners can relax, proceed with self-assurance,
and serve the community with honor and distinction.
The mental health profession is in a constant and often anxiety-
producing state of flux. Practices, procedures, and rules are changing
with lightning speed. Earning a living is complex enough without wor-
rying about a disciplinary committee breathing over your shoulder.
And how can you avoid this? By knowing the rules in the same way
that an athlete knows the rules, a lawyer knows courtroom procedures,
or a musician knows the score.
This book can help avoid a tragedy. The tragedy is that a person
completes undergraduate and perhaps graduate school. The graduate
is then armed with advanced degrees and pursues either the advanced
designations of his or her professional organization or applies for and
Preface xv
receives a state license. The degree and the license are framed and
proudly mounted on the wall of the clinical office, and then a com-
plaint is filed. Some unhappy client writes to the state licensing board,
the federal authorities, or the national organization and an investiga-
tion begins. Then, if the investigation uncovers an act that is unethi-
cal or can be construed to be unethical, the license, loaned to the
licensee in the first place, is withdrawn. The licensee can no longer
practice the profession for which he or she invested so much study,
expense, dedication, and hard work. Fines and even imprisonment
can be imposed for serious violations.
This tragedy can be avoided by practicing ethically. And how can
you practice ethically? By knowing the ethical canons, codes, and
guidelines and practicing within them. But first, you must learn what
they are. That is why this book was written and has been revised.

harder and more expensive to defend a mental health professional
afterthefactsoreventshaveoccurred.Riskmanagementmeans
avoiding risk where possible and ameliorating problems when they
arise.
We include study or research questions at the end of each chapter
to encourage review and study of individual state ethical canons and
statutes. We also include a jurisprudence exam in Appendix D, to test
state-specific knowledge of ethical and legal rules and principles.
T
HOMAS L. HARTSELL JR.
B
ARTON E. BERNSTEIN
Preface xvii

Acknowledgments
It is hard to believe that it has been a decade since Bart and I first
worked on a project for John Wiley & Sons. The same folks I have
thanked and credited for inspiration in the past are still there for me.
For that fact and for all of the publishing professionals involved, I con-
tinue to be very appreciative. Working with Wiley has generated two
careers as authors. I love you all.
My biggest shout out goes to Barbara, my wife, my best friend, com-
panion, cheerleader, critic, nurse, and supporter. Lady, you mean the
world to me.
Right behind her I have to express my deep affection and delight in
my special four-legged pal, Dexter, my Jack Russell terrier. He is like a
fine wine, getting better with age. I miss him almost as much as I miss
Barbara when I am away.
Speaking of fine wine, my parents, Tom and Julie Hartsell, enjoying
their 55th year of wedded bliss, continue to give me support and inspi-

Bernstein Galaganov, lawyer and mother of my grandchildren, Sima
Galaganov and Haya Galaganov, and her husband, Misha Galaganov,
professor of music, and to my stepdaughter, Amy Huck, with good
wishes as she embarks on her life’s accomplishments.
To my sisters, Rona Mae Solberg and Dr. Berna Gae Haberman,
and her husband, Wolf (Bill) Haberman, and in loving memory of my
brother-in law, Dr. Myron ‘‘Mike’’ Solberg, professor emeritus, Rutgers
University. And in loving memory of my parents, Samuel and Suetelle
Bernstein, who always thought Fall River, Massachusetts, was the
Garden of Eden.
With special thanks to my colleague, friend, and distinguished
attorney and lead author Tom Hartsell who has continued to inspire,
invigorate, and motivate both of us to serve the legal and mental
health communities, me as a grand old man of the law and Tom as a
distinguished professor and lecturer in the fields of ethics, law, alter-
nate dispute resolution, and peaceful decision making. With Tom,
conflict resolution is always a pleasure.
B. E. B.
xx Acknowledgments
We again want to thank the staff at John Wiley & Sons, Inc. for realiz-
ing the importance of the connection between law and the mental
health professions and for understanding the magnitude of the ethical
component in any mental health practitioner’s practice. We especially
want to thank Isabel Pratt for giving us the opportunity to update this
material with a second edition and for her support of this project.
We thank Nancy Marcus Land of Publications Development Com-
pany for her terrific job in editing our work.
In writing this book, the authors received invaluable support,
encouragement, and inspiration from family members, friends, and
colleagues. Encouragement came from many special friends. We want

ing to the consumer the approval of the state authorizing the individual
to practice a profession. In most jurisdictions, the psychologist, social
worker, counselor, therapist, addictions specialist, or mental health
provider of any description cannot practice without a license. There-
fore, it is important for practicing professionals to protect their creden-
tials from being compromised by charges of an ethical violation.
Definitions
A composite of dictionary definitions of ethics would include:

The study of standards of conduct and moral judgment

The system of morals of a particular person, religion, group, and so on
______________________________________________________________________
xxiii