It is critical that mental health and psychiatric clinicians are knowledgeable about legal and ethical issues surrounding clien

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C h a p t e r 4

ETHICAL AND LEGAL ISSUES IN FAMILY AND COUPLE THERAPY

Jeffrey E. Barnett and Cara H. Jacobson

Family and couple therapy is a branch of psycho­ therapy that works with multiple clients’ relation­ ships with one another in order to nurture growth and change. This type of psychotherapy conceptu­ alizes the origin of conflict as being dysfunctional interactions within the family or couple system. This approach to psychotherapy also emphasizes relationships as important factors in attaining and maintaining mental health. At any given time, over 1.8 million people participate in marriage and family therapy (American Association for Marriage and Family Therapy, 2018). Family and couple therapy is a growing field, and this treatment is helpful and necessary for numerous families and couples experiencing conflict and distress related to relation­ ship difficulties. Although this treatment is highly sought out and very needed, not all clinicians are trained to provide effective family and couple therapy. In addition to possessing the necessary clinical expertise to effectively offer these treatment services, it is crucial that family and couple therapists are knowledgeable about ethics and legal issues relevant to their work. This chapter addresses the ethics and legal issues for family and couple therapists to take into consideration, including competence; multi­ cultural awareness; informed consent; boundaries and multiple relationships; and legal issues related to confidentiality and its exceptions, the duty to warn, and child custody issues.

CLINICAL COMPETENCE

Before providing couple and family therapy services, it is essential that mental health clinicians first develop the clinical competence needed to provide these services effectively (see Chapter 26, this volume). Competence is defined by Epstein and Hundert (2002) as “the habitual and judicious use of communication, knowledge, technical skills, clinical reasoning, emotions, values, and reflection in daily practice for the benefit of the individual and the community served” (p. 226). Similarly, Haas and Malouf (2005) described competence as possession of the requisite knowledge, skills, attitudes, and values, as well as the ability to imple­ ment them effectively for the benefit of the client. More specifically, Rodolfa et al. (2013) presented a model of competence for the practice of psychology that includes the following six domains: scientific knowledge, evidence­based decision making/ critical reasoning, interpersonal and cultural competence, professionalism/ethics, assessment, and intervention/supervision/consultation.

Understanding Competence The development of each clinician’s clinical com­ petence begins in graduate school with academic course work and supervised clinical experience (see Chapter 26, this volume). It does not stop there,

http://dx.doi.org/10.1037/0000101­004 APA Handbook of Contemporary Family Psychology: Vol. 3. Family Therapy and Training, B. H. Fiese (Editor­in­Chief) Copyright © 2019 by the American Psychological Association. All rights reserved.

APA Handbook of Contemporary Family Psychology: Family Therapy and Training, edited by B. H. Fiese, M. Celano, K. Deater-Deckard, E. N. Jouriles, and M. A. Whisman Copyright © 2019 American Psychological Association. All rights reserved.

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however, because attaining and maintaining com- petence is an ongoing endeavor that each clinician must work at on an ongoing basis throughout the course of his or her career. Competence should not be seen in all or nothing terms; one is not either fully competent or completely incompetent. Com- petence falls along a continuum and has many elements to it, with each one potentially falling at a different place along that continuum. One may possess a certain degree of competence in some aspects of practice and different levels of competence in others. Additionally, one may be considered competent at one point in time and not at others; without adequate ongoing efforts, com- petence can deteriorate and knowledge and skills can become obsolete over time (Neimeyer, Taylor, Rozensky, & Cox, 2014).

Rather than asking if one is competent, it is more appropriate to ask if one is sufficiently competent in the use of the specific treatment techniques and modalities relevant to the client’s treatment needs and if one is sufficiently competent in the treatment of the client’s particular presenting problems. Thus, clinical competence should not be considered from a global or holistic level but more specifically as it is relevant to treating a particular client.

Although many of the competencies (i.e., areas of knowledge, skills, and abilities) that are associated with being an effective individual therapist are relevant to clinical work with families and couples, they are not sufficient for practice as a family or couple therapist. Mental health clinicians seeking to treat families and couples will need to significantly add to their general competence in order to provide effective treatment in the specialty area of family and couple treatment.

As addressed in Standard 2.01, Boundaries of Competence, of the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct (APA Ethics Code; APA, 2017a), psychologists should provide services to populations and in areas only within the limits of their compe- tence. Competence can be understood in terms of three distinct obligations that clinicians accept in treating clients. These three obligations include becoming familiar with professional and scientific knowledge, acquiring professional skills, and finally,

knowing when it is appropriate to make referrals to other professionals when one does not have the skills or ability to perform work in a competent manner (Dean, 2010). When treating families and couples in psychotherapy, it is important that clinicians possess the specialized knowledge, skills, training, and expe- rience needed to provide effective treatment.

Clinicians who treat families and couples need to have adequate education, training, demonstration of skills, and licensure as a minimum level of competence in treating these populations. Training programs currently determine methods of assessing students in different competency areas, including family and couple therapy. Additionally, most programs offer academic courses in the treatment of families and couples, and many graduate students are given the opportunity to work clinically with these populations during their training. Ideally, therapists can gain this real world experience prior to treating families or couples independently once they are licensed. Yet, licensure should not be misconstrued as implying clinical competence, as it only implies that the clinician possesses the necessary general competence to practice psychology independently. Family and couple therapists should work to continually enhance the knowledge relevant to competence as a family and couple therapist through ongoing professional education, staying current with the professional literature, and by contributing to the field by engaging in research and scholarship that enhances our knowledge base.

Acquiring professional skills. Initially, these skills may be developed through supervised clinical experience during a therapist’s training. For practicing family and couple therapists, the development and enhancement of these skills may be achieved through participation in advanced specialty training and certification programs in family and couple therapy that include supervision and evaluation of relevant clinical skills.

The American Board of Professional Psychology (ABPP) recognizes 14 specialties in the practice of psychology. ABPP defines a specialty as an “area in the practice of psychology that connotes special competency acquired through an organized sequence of formal education, training, and experience” (ABPP, 2015, paragraph 5). Furthermore, in addition

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to having a recognized set of competencies, each specialty has its own identified “requirements for education, training, experience, research bases of the specialty, practice guidelines. . . .” (paragraph 5). Couple and family therapy is one of the 14 special­ ties in psychology that are recognized by the ABPP. Although board certification is not required to practice couple and family psychology, with licen­ sure being the only requirement to practice inde­ pendently, board certification sets the standard for recognition of advanced competence in specialty areas. Thus, board certification provides a recog­ nized standard for demonstrating advanced compe­ tence in couple and family therapy.

While psychologists may demonstrate their specialized competence in couple and family therapy through board certification by ABPP, several training and certification programs exist that provide mental health clinicians the opportunity to develop special­ ized knowledge and skills relevant to family and couple therapy. For example, clinicians can become trained and then certified or credentialed in emotion­ ally focused therapy (see Chapter 18, this volume) or the Prevention and Relationship Enhancement Program (see Chapter 19, this volume) in treating couples; or the Incredible Years series programs (see Chapter 21, this volume), parent–child inter­ action therapy (see Chapter 23, this volume), Family Check­Up and Everyday Parenting (see Chapter 24, this volume), or Triple P Positive Parenting Program (see Chapter 25, this volume) in treating families. These are just a few of the many types of available empirically supported couple and family therapy approaches in which one may become certificated or credentialed. Additionally, clinicians should engage in ongoing efforts to maintain and build upon their competence and to stay current with the latest devel­ opments in the field, including seeking consultation with experts in various aspects of practice, partici­ pating in continuing education courses, and immersing themselves in the current research litera­ ture relevant to family and couple therapy.

Self-assessment of competence. When a mental health clinician does not possess the needed competence to provide the treatment services necessary to meet clients’ treatment needs, it is

often in the clients’ best interest to refer them to a professional who possesses that needed competence. Often, however, whether a clinician should treat a particular family or couple or refer them to a colleague for treatment is not clear. Careful and honest reflection on one’s ability to effectively treat the family or couple is of great importance for meeting one’s ethical obligations and for ensuring that clients’ treatment needs are appropriately met. Yet, mental health clinicians, like all health professionals, demonstrate great difficulties with accurate self­assessment. Clinicians tend to overestimate their abilities and to be unaware of difficulties or deficits in their competence (Dunning, Heath, & Suls, 2004; Kruger & Dunning, 1999). Thus, self­assessment alone is insufficient and clinicians must actively utilize consultation with colleagues to help determine the appropriateness of treating certain clients.

Although it is important for clinicians to engage in self­assessment and utilize consultation regarding all populations treated, family and couple therapy involves specific concerns that become very relevant to assessing competence in a continuous and conscious way. APA Ethics Code Standard 2.04, Bases for Scientific and Professional Judgments, requires psychologists’ work to be based upon established scientific and professional knowledge. In addition to the need to remain current on empirically based treatments related to family and couple therapy, multicultural biases; prejudices; implicit and explicit beliefs; and personal values, morals, and life experiences come into play strongly when working with families and couples. Standard 2.06 of the APA Ethics Code, Personal Problems and Conflicts, states that psychologists must be “aware of personal problems that may interfere with their performing work­related duties adequately” (APA, 2017a, p. 5) and in a competent manner. For psychologists to remain competent, it is recommended that they address these different areas by using supervision and consultation and by being open to colleagues’ feedback and guidance. In Standard 2.03 of the APA Ethics Code, Maintaining Competence, it is stated that psychologists should make ongoing efforts throughout their careers to develop and maintain their clinical competence

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and effectiveness. This continuous process of self­ assessment, consultation, and the development of ongoing competence is critical for the effective treatment of couples and families in therapy.

Couple and Family Therapy Competencies Competencies related to family and couple therapy are unique and different from the competencies required to conduct effective individual psycho­ therapy. As discussed previously, competence in individual therapy is necessary but not sufficient for the practice of family and couple therapy, due to the unique nature of family and couple work. The field of family and couple therapy is highly special­ ized; thus, clinicians should be knowledgeable about family and couple systems theories as well as specific family systems therapy concepts and treatment implications such as triangulation, boundary perme­ ability, alignments and coalitions, and paradoxical tasks in the therapy (Bowen, 1978; Haley, 1976; Minuchin, 1974; see Chapter 7, this volume).

Families and couples often seek treatment when their family or dyadic system becomes dysfunctional, and cases should be conceptualized using a systems perspective throughout the entire course of treatment. In this type of specialized treatment, the family or the couple—rather than a specified individual—is the client, and clarifying the clinician’s obligations to each party from the outset is vital for treatment to be effective (Fisher, 2009). A systems perspective should permeate case conceptualization, assessment and diagnostic issues, treatment planning, interventions, and even considerations regarding termination of treatment when working with families and couples. Additionally, family and couple therapists should be knowledgeable of and competent in the use of the treatment skills demonstrated to be relevant to the effective treatment of these clients (see Chapter 26, this volume, for detailed information on these competencies).

MULTICULTURAL COMPETENCE

In all psychological treatments, multicultural considerations should be used as a lens through which to view every clinical case (see Volume 2,

Chapter 26, this handbook). Its implications are so important in work with clients that multiculturalism is considered to be the fourth force in psychology, with psychoanalysis, behaviorism, and humanism being the first three forces (Pedersen, 2001). Multicultural considerations should be integrated into all clinical work in order to strengthen clinical conceptualizations and treatments, regardless of the clinician’s theoretical orientation. Principle E of the APA Ethics Code, Respect for People’s Rights and Dignity, directs clinicians toward being aware of and respecting cultural, individual, and role differences and considering these factors when working with clients to avoid participating in activities or treatments based on prejudices, biases, or stereotypes. Additionally, in 2003 the APA published the Guidelines on Multicultural Education, Training, Research, Practice and Organizational Change for Psychologists, further reinforcing the importance and value of including multiculturalism in all clinical interactions. In 2017, APA updated these Guidelines in order to reconsider diversity and multicultural practice, with intersectionality as its primary purview (APA, 2017b) The APA Multicultural Guidelines recommend that all psychologists (whether they are involved in education, training, research, practice, or organizational change) work toward knowledge of themselves and their own cultural identities, as well as knowledge of other cultures, in order to provide clients with the most appropriate, relevant, and effective services possible (APA, 2003, 2017b).

The development of multicultural competence is built upon self­awareness of biases, and this examination is a dynamic rather than a static process. Sue et al. (1998) defined multicultural competence as the development of cultural knowledge, cultural skills, and cultural awareness so as to intervene effectively. Cultural knowledge is understood to be the ability to gather meaningful facts to increase comprehension about one’s own and others’ cultures, cultural skills consist of the abilities to intervene in effective and competent ways regarding culture, and cultural awareness is defined as the ability to accurately understand a cultural situation from the client’s perspective as well as an awareness of the clinician’s implicit biases

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and privileges present in that cultural situation (Pedersen, 2001).

Multicultural Knowledge With Families and Couples To develop multicultural competence with families and couples, clinicians must understand families through the lens of their self­views, beliefs, cultural backgrounds, and family interactions and practices (McGoldrick, Giordano, & Garcia­Preto, 2005). Gathering this knowledge does not stop with being aware of clients’ cultures; clinicians must be aware of the role of their own identities and beliefs and how they intersect in complex ways with how clinicians view and interact with families and couples in treatment. It is important to understand cultural attitudes toward families and couples as well as differing definitions of normality and dysfunction (McGoldrick et al., 2005).

Developing specific cultural knowledge is essential when working with families and couples. Therapists in the United States are frequently taught treatments that are rooted in Eurocentric frameworks and thus prioritize Western values, often failing to address important differences among cultures (Kelly, Maynigo, Wesley, & Durham, 2013). For example, when working with Asian Indian American families in therapy, one should inquire about gender roles and the role of the extended family in the treatment process. Additionally, an intergenerational or structural theory or framework may be particularly helpful for many Asian Indian Americans, considering the influence of the extended family and concerns related to family rules, boundaries, and roles (DuPree, Bhakta, Patel, & DuPree, 2013). Similarly, when treating African American families or couples, it is essential that the clinician be aware of how larger systems affect the family structure and may lead to mistrust within the family or couple system, in the relationship with the therapist, and in the larger societal system (Kelly et al., 2013).

Clinicians also need to be aware of empirically based knowledge when working with lesbian, gay, bisexual, transgender+ (LGBT+) couples and fami­ lies. There is a perception that the norm is White, Westernized, heterosexual, and cisgender (i.e., being

assigned at birth to the gender one later identifies with); therefore, it is crucial for clinicians to seek out literature on the treatment of people who iden­ tify as LGBT+ in terms of development and identity (Martell, 2015). It is also necessary for clinicians to possess knowledge of the larger societal forces that these families and couples are dealing with, so as to provide competent treatment by taking broader systemic influences into consideration. Additionally, when providing family or couple therapy to LGBT+ populations, clinicians need to self­reflect upon biases, stereotypes, and privileges they may hold and consider how these may impact their perceptions of and interactions with these clients.

These examples highlight the importance of developing culturally sensitive practices that incorporate knowledge about cultures. It is also valuable to note that although gaining specific knowledge about each client’s reference group is helpful, it is important not to make assumptions based solely on research and to always check in with the particular family or couple in treatment to understand their specific cultural experiences.

Multicultural Skills With Families and Couples Hays (2001) provided a framework for therapists to better recognize and understand individual and cultural influences as a dimension of psychotherapy work. This model is referred to as the ADDRESSING framework and it recommends that clinicians take into consideration a combination of information about age, developmental and acquired disabilities, religion, ethnicity, socioeconomic status, sexual orientation, indigenous heritage, national origin, and gender with all clients (Hays, 2001). Using this framework promotes culturally sensitive practices that should enhance psychotherapy skills with families and couples, as it will likely result in an increased awareness of who one’s clients are; the forces or stressors they are dealing with; and their worldview, perceptions, and experiences.

The use of culturally sensitive skills should begin with the initial assessment of each family and couple. It is recommended that clinicians approach this work in interactive and supportive ways, assessing clients’ worldviews rather than

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making judgments about clients’ beliefs, values, and practices based on their identified or observable individual factors as well as cultural differences (Ibrahim & Schroeder, 1990). Upon initial assessment, clinicians may use scales such as the Scale to Assess World View (SAWV) to help clients to clarify their own cultural worldviews and to help the family or couple therapist to understand them (Ibrahim & Schroeder, 1990).

Multicultural Awareness With Families and Couples When treating families and couples, it is important to continuously check in with one’s self and with clients to confirm that conceptualizations and interventions are culturally sensitive, relevant, and appropriate. It is also important that family and couple therapists understand their personal values, biases, and privileges and how they may impact their view of and interactions with clients, their judgments about treatment goals, and their choice of interventions.

To achieve and maintain cultural competence, it is crucial that clinicians continuously explore their own individual and relational assumptions in terms of questions related to cultural values, gender role biases, traditional versus egalitarian family roles, infidelity, divorce, and other mores and cultural customs. These ideas are likely to change throughout one’s lifetime, and thus the examination of personal values is a dynamic and ongoing process that requires honest reflection and can be aided by consultation with colleagues.

INFORMED CONSENT TO COUPLE AND FAMILY THERAPY

The doctrine of informed consent is based on the premise that each client has the right to receive and understand information about the professional services being offered that is sufficient to enable the client to make an informed decision about participation. Historically, physicians provided treatment without first seeking patients’ consent. Physicians possessed knowledge and expertise, evaluated their patients, and determined the

treatments and interventions that they deemed to be in their patients’ best interests. Over time, as some patients perceived themselves to have been harmed by their physicians’ actions, they filed malpractice suits against their physicians. When the courts ruled in the patients’ favor, awarding damages to them, these legal rulings created precedent and altered professional practice standards. The rulings of these lawsuits have created the doctrine of informed consent as it is known today, and many of the standards from these legal rulings have been incorporated into the requirements found in licensing laws and ethics codes (Barnett, Wise, Johnson-Greene, & Bucky, 2007).

Ethics Standards and Requirements The APA Ethics Code (APA, 2017a) addresses informed consent requirements for psycholo- gists in several relevant enforceable standards. Standard 3.10, Informed Consent, requires that psychologists first obtain the informed consent of participants before providing them with any psychological services, “except when conducting such activities without consent is mandated by law or governmental regulation . . .” (p. 6). Standard 10.01, Informed Consent to Therapy, clari fies the need for informed consent by stating that the establishment of this consent should occur as early as is feasible in the treatment process and that the clinician should inform clients about (a) the nature and anticipated course of therapy; (b) fees and financial arrangements; (c) any involvement of third parties; (d) confidentiality and its limits; (e) the nature of any experimental or unproven treatments or techniques, potential risks, and treatment alternatives that are reasonably available; (f) the right to refuse participation; and (g) the licensure status of the clinician, including whether he or she is a trainee and practicing under another individual’s license, in which case the clinician should also share the name of his or her supervisor with the client. Additional informa- tion to be shared in the informed consent process includes (a) the clinician’s credentials, training, and experience relevant to the professional services

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being offered; (b) scheduling and cancellation poli­ cies; (c) emergency contact information; (d) any recording (audio or video) of treatment sessions; and (e) termination or transfer of clients.

Further, for the informed consent process to be considered valid, four criteria must be met. First, the informed consent must not be coerced; it must be provided voluntarily. Second, the individuals involved must be competent (emotionally, intellectually, and legally) to provide consent. Third, therapists must actively ensure clients’ understand ing of that to which they are agreeing. Finally, the informed consent must be documented. Merely having a verbal agreement about the parameters of the treatment to be provided is insufficient (Snyder & Barnett, 2006).

Snyder and Barnett (2006) reported that informed consent is an ongoing process that has the benefit of “promoting client autonomy and self­determination, minimizing the risk of exploitation and harm, foster­ ing rational decision making, and enhancing the therapeutic alliance” (p. 37). Furthermore, the information sharing component of the informed consent process helps in demystifying psychotherapy, reducing apprehension and anxiety clients may have, and increasing their investment in the treatment (Beahrs & Gutheil, 2001).

It is also important that cultural and other diversity issues be integrated into the ongoing informed consent process, with the process being modified to meet each participant’s needs. As Pope (1991) explained, the informed consent process must be customized to meet each individual person’s needs. For example, how one typically conducts the informed consent process may need to be modified with people for whom English is not their first language, for those who are visually or hearing impaired, and for those whose cultural norms may require the inclusion of others in the informed consent process (e.g., community elders, extended family members, religious leaders).

Informed Consent and Assent When someone is not able or authorized to give her or his own informed consent, assent is sought. Individuals who are not legally authorized to

provide their own informed consent include minors (although the age of majority varies by jurisdiction and there are exceptions in some …