THE CAP MONITOR To serve the interests of the public and guide the profession of psychology. Fall| 2011 Issue | 40 Continued on Page 5 ETHICAL COMPLAINTS: “IT COULD HAPPEN TO YOU” By Thomas Marriot, LLB I have been assisting psychologists to respond to ethical complaints for over two decades. Based on that experience, I am occasionally asked what would be the best advice I could give to psychologists to avoid having to face a charge of unprofessional conduct under the Health Professions Act, or more colloquially, “how best to stay out of trouble.” To be succinct, my answer could be reduced to three somewhat clichéd statements: • It could happen to you. • Rules are rules. • Just say,“No!” It could happen to you. I have had the good fortune to meet a great many members of the psychology profession. Unfortunately, this is generally because the psychologist is responding to a complaint about them, filed with the College. By no means are all of these psychologists relative neophytes in the profession. On the contrary, some very prominent and experienced practitioners have been the subject of a complaint. It can come as quite a shock to a psychologist of 20 or 30 years’ experience to be named, for the first time, as the subject of a complaint. However no-one can consider himself or herself immune from the possibility of a complaint. The College is obliged under its governing legislation to deal with any written complaint it receives, and potential sources of a complaint include, at a minimum, anyone with whom the psychologist comes into professional contact 1 . Rules are rules. For some psychologists, a period of many years, even decades, of complaint-free practice can create the risk of complacency. As a result, some psychologists may not necessarily keep up with developments or wording changes in ethical codes, standards of practice, case law or the like. 1 In certain circumstances even one’s private conduct can be grounds for a complaint. Issue IN THIS 1 Feature Article: Ethical Complaints: “It Could Happen To You” 2 From the Desk of the Director, Professional Guidance 2 Practice Bulletin: Psychological Evaluations & Third Party Observers 3 Update on the Continuing Competence Program 4 Register Updates 4 Examination Results 7 2011 CAP Annual Meeting & Professional Development Day 8 Recent Changes in the Law Governing Psychologists in Alberta 9 Changes to Council 9 Changes to the Oral Examination 11 Resources
Transcript
THE CAP MONITORTo serve the interests of the public and guide the profession of psychology.
Fall| 2011Issue | 40
Continued on Page 5
ETHICAL COMPLAINTS: “IT COULD HAPPEN TO YOU”By Thomas Marriot, LLB
I have been assisting psychologists to respond to ethical complaints for over two decades. Based on that experience, I am occasionally asked what would be the best advice I could give to psychologists to avoid having to face a charge of unprofessional conduct under the Health Professions Act, or more colloquially, “how best to stay out of trouble.”
To be succinct, my answer could be reduced to three somewhat clichéd statements:• Itcouldhappentoyou.• Rulesarerules.• Justsay,“No!”
It could happen to you.
I have had the good fortune to meet a great many members of the psychology profession. Unfortunately, this is generally because the psychologistisrespondingtoacomplaintaboutthem,filedwiththeCollege. By no means are all of these psychologists relative neophytes in the profession. On the contrary, some very prominent and experienced practitioners have been the subject of a complaint. It can come as quite a shock to a psychologist of 20 or 30 years’ experience tobenamed,forthefirsttime,asthesubjectofacomplaint.Howeverno-one can consider himself or herself immune from the possibility of a complaint. The College is obliged under its governing legislation to deal with any written complaint it receives, and potential sources of a complaint include, at a minimum, anyone with whom the psychologist comes into professional contact1.
Rules are rules.
For some psychologists, a period of many years, even decades, of complaint-free practice can create the risk of complacency. As a result, some psychologists may not necessarily keep up with developments or wording changes in ethical codes, standards of practice, case law or the like.
1 In certain circumstances even one’s private conduct can be grounds for a complaint.
IssueIN THIS
1 Feature Article: Ethical Complaints: “It Could Happen To You”2 From the Desk of the Director, Professional Guidance2 Practice Bulletin: Psychological Evaluations & Third Party Observers3 Update on the Continuing Competence Program4RegisterUpdates4ExaminationResults7 2011 CAP Annual Meeting & Professional Development Day8RecentChangesintheLaw Governing Psychologists in Alberta9 Changes to Council9 Changes to the Oral Examination11Resources
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…From the Desk of the Director, Professional Guidance
The issue of third party observers has recently been brought to the attention of the College. A Practice Bulletin titled Psychological Evaluations and Third Party Observers (October 2008), which
can be found on the College website at www.cap.ab.ca in the Members Only section, outlines the concerns related to third party observers. While everyone is encouraged to review the bulletin in its entirety, some excerpts from the bulletin are printed below for your information. Please note that third party observers and observations as a general rule are not recommended.
PRACTICE BULLETIN: PSYCHOLOGICAL EVALUATIONS AND THIRD PARTY OBSERVERS (excerpt)“Psychologists and other health related service providers are increasingly being scrutinized by the general public, colleagues, regulatory bodies, and the legal system. One outcome of these heightened review processes is that psychologists are increasingly being asked to allow involved1 third party observers (TPOs) to be present during their evaluations, or to act as the third party observers in the psychological evaluations performed by other psychologists. Observers may range in both their relationship to the persons being observed (i.e., family), and in their stake in the outcome of the evaluation (i.e., lawyers, litigants). Observers are typically interested in the process being followed (i.e., teachers/supervisors, lawyers) and in the examinee’s responses.
Third party observers and observations, as a general rule, are not recommended. Psychologists should refrain from participating in third party observed evaluations on both empirical and ethical grounds. They should not engage in activities that condone or perpetuate their use.
A critical objective of any evaluation is to minimize any deviation from standardized administration procedures as outlined by the test authors (Standards for Educational and Psychological Testing, 1999) in order to obtain the most reliable and valid comparison to the normative reference group upon which the test was developed ...
When observations are mandatory, the party being evaluated should be fully apprised of possible TPO effects during the initial informed consent process. Psychologists must obtain written informed consent when conducting TPO evaluations. This, along with other factors that may limit the reliability and validity of the assessment—such as the test environment and any situational, language, or cultural differences—should also be clearly documented. The implications of TPOs for any generalizations outside of the test environment should be outlined in the assessment results.
A growing body of empirical evidence and an increasing number of professional and ethical guidelines indicate that the
1An involved third party is one who, directly or indirectly, has some stake in the outcome of an examination of a particular person. While the term is most widelyusedincivillitigation,thestakemayalsoderivefromafinancial,family,social,orotherrelationshiporbenefit.Examplesofinvolvedthirdpartiesincludea plaintiff ’s attorney or agent attending a neuropsychological assessment, a parent watching an educational assessment, or an adult child observing a compe-tencyassessmentofaparent.Incontrast,uninvolvedthirdpartieshavenospecificinterestintheoutcomeoftheindividual’sexamination;examplesincludeastudent in training or an interpreter.
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PRACTICE BULLETIN: PSYCHOLOGICAL EVALUATIONS AND THIRD PARTY OBSERVERS [excerpt], cont’d...
presence of a third party in any assessment should be restricted to circumstances wherein the evaluation could not proceed otherwise (i.e., an interpreter or the parent of a behaviourally disturbed child). As is true in all circumstances where the examinee and/or the examination process deviates from the ideal standardized administration, appropriate documentation of such factors and their possible implications should be clearly highlighted. Overall, psychologists should refrain from engaging in TPO assessments citing both ethical criteria and empirical data.”
If you have any questions regarding this article, please contact the Deputy Registrar and Director, Professional Guidance, Joanna Dabrowski, at [email protected].
Competence Program (CCP) will continue to be voluntary. The College is hopeful that the RegulationwillbeproclaimedinthefallsessionoftheLegislature,whichwouldenableustoproceed with the CCP on a mandatory basis for the 2012/2013 registration year.
We encourage members to continue to complete the CCP documents and consult the continuing competence consultants or the College with any questions or feedback you may have.
Please watch for further program dates through The CAP Monitor or visit the College website (www.cap.ab.ca) and click on the Members Only section.
Changing your address?Please notify the College promptly, in writing, of any changes to your postal address, phone and fax numbers, or email address. A Change of Address form is available on the College website.
Please note that information about your business address, phone and fax number, and email address is available to the public. If you are providing a residential address to the College, clearly indicate this on the Change of Address form sothatthisinformationwillbekeptconfidential.
Issue 40 Page 4
REGISTER UPDATES
ReinstatementsThe following registered psychologists were reinstated for the period of May 16 to September 30, 2011: RichardAnton KandaceJordan StacyBenoche RenukaSanghvi Barry M. Brazier
New MembersCongratulations and welcome to the 35 new registered psychologists who were added to the register between May 16 and September 30, 2011.
Some professional practices may evolve in specialized areas to the point where a psychologist may conclude that certain activities or procedures, otherwise generally considered to be standard psychological practice, may not apply to his or her unique practice. Psychologists need to be aware that the College takes the view that “rules are rules,” and that there are a number of core requirements or rules that apply to all psychologists.
The College of Alberta Psychologists website, cap.ab.ca, contains a great deal of useful information about the regulation of the profession, and I would encourage all Alberta psychologists to get to know what resources areavailabletothemonthatsite.Inparticular,acrossthetopofthehomepageistheheading“RegulatoryInformation,” under which a drop-down menu provides several valuable links, including access to information on self-regulation, legislation, court decisions, ethical codes, standards of practice and professional guidelines. Of particular note, and in contrast to ethical codes which may be viewed as aspirational in nature, the College website describes its standards of practice in these terms:
The Standards of Practice translate certain aspects of the Code of Ethics into behavioural definitionsthatconstituteenforceablerulesfortheprofessionalconductofpsychologists.… violationsofanyoftheindividualrulesmaybethebasisforafindingofunprofessional conduct.
For example, Standard 11 deals with maintaining client records. This includes the necessity, among other things, of keeping a written record of the presenting problem or reason for consultation, of informed consent, of the fee arrangement and of the “date and substance of each professional service, including relevant information on interventions, progress, any issues of informed consent or issues related to termination.” Over the years, I have found that some psychologists whose practices have developed in somewhat unique ways do not believe they are required to keep notes of each session. The College takes the contrary view and will rely on Standard 11 to advance its position. The rationale, as I understand it, includes the notion that should the client transfer to another psychologist, that new psychologist should be able to discern the status of therapy or counselling and be able to build on previous experience.
Psychologistsshouldalsobeawarethatanissueregardingthesufficiencyofnote-takingcanarisewhetherornotitwasmentionedinanoriginalfiledcomplaint.Uponreceiptofacomplaint,theCollegewillgenerallyaskforaresponsefromthepsychologistaswellasacopyoftheclientfileandofthemember’sC.V.Whatmaycomeasasurprisetosomepsychologistsisthatuponitsreviewoftheclientfile,theCollegemayformulate charges that have to do with whether the psychologist maintained appropriate client records, evenifnosuchconcernwasraisedintheoriginalcomplaint.Thisisspecificallyprovidedforinsection62(2)of the Health Professions Act which states:
ETHICAL COMPLAINTS: “IT COULD HAPPEN TO YOU”, cont’d...
Issue 40 Page 6
The example of record-keeping and note-taking is cited as an illustration, and the thrust of this discussion is that prudent psychologists should ensure they are aware of the wording and mandatory nature of the College’s Standards of Practice, and strive for compliance.
Just say, “No!”
Finally, psychologists should be wary of certain requests commonly made of them. This is particularly true of requests made by members of my own profession. Psychologists should understand that a lawyer’s request may arise from the lawyer’s focus on the needs and aspirations of his or her particular client. The lawyer may not be aware of, or may not even have consciously considered, any ethical issue that may arise for the psychologist in dealing with the request.
In particular, on several occasions I have been made aware of a request from a lawyer for a psychologist providing counselling to children of a dissolving or disintegrating marriage to provide written comments that could be taken to bear on the issues of custody or access. Such a letter may be seen as contravening the direction provided in standards of practice and in professional guidelines that no such opinion should berenderedwithoutthebenefitofaformalassessmentandwithoutinformedconsentfromeveryonewhose legal rights may be affected. Psychologists receiving these requests may be well advised to seek advicewhichcouldleadtothesuggestionthatthey“justsay,‘No!’”
About the Author:
Thomas MarriottjoinedthepartnershipofBrownleeLLPin1997.Hehasbeeninvolvedthroughouthiscareer in the areas of administrative law, professional liability, and professional discipline. Over the years he has defended dozens of professionals and professional bodies, including psychologists, social workers, emergencymedical technicians, and physical therapists.He haswritten and lectured extensively on avariety of legal topics. For more information, visit the Brownlee LLP website at http://www.brownleelaw.com or contact Mr. Marriott at [email protected].
ETHICAL COMPLAINTS: “IT COULD HAPPEN TO YOU”, cont’d...
Email addresses are now mandatory for all members of the College, as all important information from the College will be sent out through email. Following our last communication to
members, 152 emails were returned as having incorrect addresses. It is crucial to ensure that your email address is accurate and kept up-to-date with the College.
MANDATORY EMAIL: Protecting the Public and the Environment
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2011 CAP ANNUAL MEETING & PROFESSIONAL DEVELOPMENT DAY - ANOTHER VERY SUCCESSFUL YEAR!
On September 24, 2011, the College hosted their 2011 Annual Meeting & Professional Development Day at the Shaw Conference Centre in Edmonton. The theme was Professionalism: How to Meet the Challenge…
Over 120 members, students and staff attended the event. The College was pleased to have Lorraine Breault asoneofthekeynotespeakersinthemorning.HerExploring Professionalism presentation—a continuation from the topic introduced last year in Calgary—focused on professionalism and its importance for psychologists and society. Additionally, Brenda Lee Doyle and Barb Martini, from the Alberta Government Ministryof Seniors andCommunity Supports, gave anupdate from theOfficeof PublicGuardian andLegislative Developments for Supported and Substitute Decision-Making. Both presentations were informative and well received.
In the afternoon, members had the choice of several sessions to attend, including:• Confronting Cultural Differences: The Practice of Psychology in an Ethnically-Diverse Canada, presented by Earle Waugh • Panel Discussion on Ethical Issues and Challenges in Rural Settings, presented by Ali Al-Asadi, StanMlynczakandNinaWyrostok• Supervision: Understanding the Changes to the Process,presentedbyJimEliuk• Legislation and Regulatory Matters,presentedbyJoannaDabrowskiandRichardSpelliscy• Panel Discussion on Functioning in a Multi-Disciplinary World,presentedbyKerryMothersill, DavidPiercey,TheresaVanDomselaarandErikWikman• Ethical Considerations When Providing Emerging Services and Techniques, presented by Derek Truscott
Presentations from the sessions are available on the College website (www.cap.ab.ca).
At the end of the day a wine and cheese reception was held in honour of the many members who give their time, expertise and professional experience to the work of the College.
The overall positive feedback from members indicated that they found the day to be informative, practical and relevant to their practice and the profession while providing an opportunity to network with colleagues. If you have not already completed your evaluation form, please submit your thoughts about the sessions presented, the location or any other aspect of the day. We also welcome any comments or suggestions about the type of regulatory information you would be interested in for future sessions.
MARK YOUR CALENDARS NOW TO ATTEND THE 2012 ANNUAL MEETING!Saturday, September 22, 2012
Calgary, AB
Issue 40 Page 8
Over the past couple of years, the legal framework governing psychologists has evolved in both written and judge-made law. Set out below are some of the highlights.
Recent statutes. Among the newer provincial Alberta statutes are the Protection for Persons in Care Act and the Alberta Health Act (not yet proclaimed). The Protection for Persons in Care Act (PPCA) applies to publicly funded facilities, and contains a mandatory reporting provision (section 7) if there are reasonable grounds to believe there is abuse. The Alberta Health Act, not yet in force, will apply tohealthproviders, includingpsychologists. Itwill createaHealthAdvocate,akin to theOmbudsman, toprocesscomplaintsandensurethathealthprovidersactconsistentlywiththeHealthCharterwhichistobedevelopedundertheAct.The Alberta Health Actisanticipatedtobeaholisticavenuetogovernhealthcaredeliveryandresolvehealth-specificcomplaintsthat are not resolved elsewhere.
Mandatory reporting. Psychologists are obligated to report certain situations:(a) Section 4 of the Child, Youth and Family Enhancement Act mandates reporting upon reasonable and probable grounds when believed a child is in need of intervention. This provision has been around for many years andisuniversal.Itapplieseveniftheinformationisconfidential.(b) As mentioned above, section 7 of the Protection for Persons in Care Act creates an obligation to report upon reasonable grounds to believe there is abuse against a client of a publicly funded facility.(c) The Traffic Safety ActcreatesanobligationtoreporttotheRegistrarofMotorVehicleServicesaperson whose condition impairs their ability to operate a motor vehicle safely.(d) The Public Health Act creates mandatory reporting for communicable diseases, sexually transmitted diseases and reportable cancers (section 22).(e) The Health Professions Act also creates mandatory reporting for a regulated member if they suspect or know of a nuisance or threat that is or may be injurious or dangerous to the public health (section 1.1).
The common-law Tarasoff (1976) principle will be familiar to psychologists as another kind of mandatory reporting. It is still the law today and is supported by other legal sources. For instance, section 35(1)(m) of the Health Information Act provides a statutoryexceptiontothegeneralprohibitionondisclosingconfidential informationinthecaseof“imminentdangertothehealth or safety of any person.” Young v. Bella (2006,SupremeCourtofCanada)confirmedthatareporterundermandatoryreporting obligations must have reasonable cause, for the belief of abuse, and not mere speculation.
Mature minors. The “mature minor” rule is that a person over 16 years of age is presumed to be able to make his or her ownhealthcaredecisions.Thiswasaffirmedin2009bytheSupremeCourtofCanadainA.C. v. Manitoba (Director of Child and Family Services). For persons under 16 there is no hard rule, but the person may make their own healthcare decisions if they are a“matureminor.”Factorsfordecidingwhetherapersonisamatureminorinclude:thenatureofthetreatment;theintellectualcapacity and sophistication of theminor; the stability of their views; the impact of the surroundings of theminor on theindependenceoftheirviews;andanyparticularvulnerabilities.Ifthepersonisamatureminor(dependsheavilyonfacts),thatpersonhasrightstoconfidentialityofinformationandaccesstotheirownhealthcareinformation.Asaresult,16-and17-year-olds may validly object to a requirement for parental consent to treatment.
Please visit the College website for further information on legislation naming psychologists or affecting psychologists in Alberta.
Fiona Moore is a barrister and solicitor at Shores Jardine LLP in Edmonton.
RECENT CHANGES IN THE LAW GOVERNING PSYCHOLOGISTSIN ALBERTA ByFionaN.Moore,LLB
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NEWS AND ANNOUNCEMENTSChanges to Council
In accordance with College bylaws and policies, the Council elected the following by acclamation:
Donella Scott moves to the Past-President position. Lorraine Stewart remains as Treasurer for another year.
ThankyoutoPast-PresidentPaulJerrywhocompletedhisthree-yearterminthePresident-Elect,Presidentand Past-President roles. We are pleased to have him remain on Council as a Member-at-Large.
Changes to the Oral ExaminationOn September 23, 2011, the Council of the College passed a motion to rescind the requirement to provide awrittenworksampleaspartoftheoralexaminationprocess.Registeredprovisionalpsychologistswhohave not taken the oral examination in jurisprudence and ethics will no longer be required to provide a written work sample. This will be effective commencing with the next set of oral exams, scheduled fortheweekofJanuary23–27,2012.Allthequestionsthatwillbeaskedduringtheoralexam,alongwithsuggested answers, can be found in the application form.
CONTINUING COMPETENCE CONSULTANTSConsultants are available to provide consultation and guidance to members for queries related to the Continuing Competence Program. The consultants are also available in special circumstances, such as when a member does not have access to other regulated members who are able to review their plan. These circumstances would be on a very limited basis, as psychologists are encouraged to develop a professional network of peers.
Contact information for the Continuing Competence consultants is:
Bonnie Rude-Weisman Dennis BrownPh: (403) 526-8116 (780) 441-9844Email: [email protected]
COLLEGE STAFFRegistrar:AlexandraKinkaideDeputy Registrar and Director, Professional Guidance: JoannaDabrowskiComplaints Director and Privacy Officer:RichardSpelliscyCoordinator, Administration and Finance: Wendy El-IssaAdministrative Assistant, Complaints and Professional Guidance: Lindsey BowersAdministrative Assistant to the Registrar: KathySemchukRegistration Coordinator:LeanneVanderhelmCredentials Evaluation and Examinations Coordinator: Shenade FinnestadFQR Administrative Coordinator: Allison Wells Receptionist/Office Assistant:RenettaGeisler
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COUNCIL 2011-12 COMMITTEE CHAIRSPresident Chair, Credentials Evaluation Sub-CommitteeRoy Frenzel K. Jessica Van Vliet Past-President Chair, Oral Examinations CommitteeDonella Scott Erik WikmanPresident-Elect Chair, Practice Advisory CommitteeRoger Gervais Christoph WuerscherTreasurer Chair, Registration Advisory CommitteeLorraine Stewart Jean PettiforMembers-At-Large Chair, Registration Approvals Sub-CommitteePaul Jerry, Stephanie Mitchell, Christina Rinaldi Patricia SchusterPublic MembersDavid Ellement, Dora Lam, Bob Sprague
1. CAP professional guidelines for psychologists (copies available individually or as a package), including:
• AddressingRecoveredMemories• Advertising and Other Public Communication• Child Custody Assessment• Control and Use of Tests by Psychologists• DualRoles:GuidelinesforConductingAssessmentsandProvidingTherapywiththeSameClient• GuidelinesforSupervisors:AddressingUnacceptablePerformanceofRegisteredProvisional Psychologists• Informed Consent: Ethical Guidelines, Principles, and Standards• LimitstoConfidentialityandConsentforServices:SpecialIssuesinWorkingwithDependent Adults• LimitstoConfidentialityandConsentforServices:SpecialIssuesinWorkingwithMinors• Non-DiscriminatoryPractice• Psychological Evaluations for Child Protection Decisions• ReleaseofConfidentialInformation:SpecialIssuesinClientandThirdPartyRequests• Service Fees for the Provision of Copies of Client Files to Authorized Persons• SupervisorsandRegisteredProvisionalPsychologists• The Use of Aversive Techniques in Behaviour Management
The College website at www.cap.ab.ca serves two purposes: communication with the public and communication with members. The website is updated regularly and is a good source of information.
Other Useful Websites for CAP Members • Health Professions Act—www.gov.ab.ca/qp • Psychologists’AssociationofAlberta—www.psychologistsassociation.ab.ca • CanadianPsychologicalAssociation—www.cpa.ca • AssociationofStateandProvincialPsychologyBoards—www.asppb.org
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