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  • May 25, 2018 9:18 AM | Emily Fell (Administrator)

    Background on the Volk case:

    In December of 2016 the Washington State Supreme Court rendered a decision in Volk v. DeMeerleer that has resulted in legal confusion regarding a practitioner’s duty to warn third parties when a patient explicitly or implicitly expresses a plan to harm another person, and their duty to protect the public at large from patients with “dangerous propensities” when a patient expresses non-specific plans to harm others.  By this interpretation of law, clinicians, including LICSWs, could be seen as responsible for preventing violence by their current and former patients because of the “special relationship” that exists in psychotherapy.

    Many clinicians and attorneys believe that the court’s decision will dramatically increase practitioner liability. In effect, the decision expands the practitioner’s duty to predict a potential for violence even if the patient has not expressed violent thoughts, and to warn third parties in the public not specifically named by the patient. Because the Volk case ultimately settled without a jury trial, the Volk decision stands and cannot be appealed. Following the 2016 decision  an attempt was made to change the legal liability of mental health care providers in Washington State law to conform once again to recognized standards for duty to warn, but those efforts have failed, and for the near future any statutory fix is politically unlikely.

    Why is a Volk fix so hard?

    The hardest and most important part of advocating in Olympia is proving there is a problem that needs to be fixed. There are many ways to prove a problem; sometimes we use individual experiences, sometimes we use statistical data and hypothesis, and sometimes we point to a flaw in the law and demonstrate a legal need. But to be successful, this proof of problem is crucial.

    Unfortunately, in the Volk case, although you may see the circumstantial problem, we lack a clear legal problem. Because the Volk case ultimately settled out of court and we do not have a jury decision in the case, all we are left with is a Supreme Court decision that said that the case COULD go forward.  This leaves practitioners with questions regarding what our duties are to warn and/or protect, particularly as it pertains to unspecified third parties.

    Beyond just the “proof of problem,” Volk comes at a time when the public and legislators are increasingly concerned about public safety.  Despite evidence to the contrary, much of the public, and the legislators that represent them, believe that the epidemic of violence in this country is perpetrated by those with mental illness. In reality, we know that those suffering from mental illness are more likely to be victims of violence rather than perpetrators.  Until our legislators have a better understanding of this nuanced issue, they will remain extremely reticent to change, or even clarify, the obligations mental health practitioners have in protecting public safety.

    So, what can we do now?

    At our request, the State’s 2018 Supplemental budget includes a small budget proviso that reads:

    $40,000 of the general fund—state appropriation for fiscal year 2019 is provided solely to create a work group at the Robert Bree collaborative to identify best practices for mental health services regarding patient mental health treatment and patient management. The work group shall identify best practices on patient confidentiality, discharging patients, treating patients with homicide ideation and suicide ideation, recordkeeping to decrease variation in practice patterns in these areas, and other areas defined by the work group. The work group shall be composed of clinical and administrative experts including psychologists, psychiatrists, advanced practice psychiatric nurses, social workers, marriage and family therapists, certified counselors, and mental health counselors.

    This budget proviso will allow representatives from various mental health professions to come together to work on best practices across disciplines, focusing on those areas that were seen as problematic in the Volk case. These best practices will, in and of themselves, be a legal defense against liability because adhering to best practices can be a legal defense against negligence.

    Beyond working on these best practices, we need to begin educating our policymakers and the public about violence and mental health. We need to be partners on this issue.  Then, unfortunately, we must wait for something that proves a problem. Given that this started as a lawsuit, the most likely scenario is another lawsuit, with a jury verdict that will directly point to the ambiguities in the current law and provide the motivation to fix it.  In the meantime, we will continue finding ways to improve current policy that do not require a statutory change in liability.

    What does this mean for my practice?

    Naturally, the apparent expansiveness of this case creates some anxiety for us as practitioners. The best course of action is to continue to adhere to current best practice standards and to document our efforts to assess risk and create safety, thoroughly and completely. LICSWs are advised to continue to gather further information from clients who may be homicidal or suicidal and  make informed judgments about what resulting actions to take. Consultation is one of the best ways to protect ourselves from liability--it is wise to include the names, contact information and time of consultation of any other professionals who have been contacted, along with documentation of risk assessment, safety planning, professional conclusions and any foreseeable victims of harm. If a client misses multiple appointments or falls out of contact, timely follow up,  documented notifications of delinquency and case closure against clinical recommendation, are also responsible practice.

    If a clinician determines that there is a threat of imminent harm, meaning that “harm is likely to occur at any moment or near at hand” (RCW 71.05.020(20)), the clinician may disclose the minimum necessary information needed to protect potential victims, to such parties as the police, Designated Mental Health Professionals, other mental health professionals, lawyers, doctors etc., and the potential victim themself. Prudent LICSWs should make clear, documented efforts to assess homicidal risk and comply with duty to warn.  A formal risk assessment would also be helpful in minimizing liability and should be included in the patient record. Please refer to the following tool for Risk Assessment, developed and generously shared by Wellspring, for use in the case of concern about possible violent action by a client. You are also strongly encouraged to tap into the wealth of knowledge in the WSSCSW community as added support for general questions and dilemmas. Best practices like these will help us treat our clients ethically and professionally and promote safety throughout the communities we serve.

  • May 25, 2018 9:10 AM | Emily Fell (Administrator)

    WSSCSW’s lobbyists are hard at work pushing for the changes in our state legislature that we want to see for the health of our profession and our clients. The 2018 Session saw a number of big wins for mental health, including large state investments in our community mental health system. Approximately 130 million dollars was allocated for community mental health--the greatest investment in years! Here are some highlights from this year’s whirlwind short session:

    Children’s Mental Health HB 2779 - PASSED. This bill does a number of important things, including requiring stakeholders to work on the Parent Initiated Treatment (PIT) Process. DSHS must convene an advisory group of stakeholders to review the PIT process and develop recommendations regarding:

    • the age of consent for behavioral health treatment of minors;

    • options for parental involvement in youth treatment decisions;

    • information communicated to families and providers about the PIT process; and

    • the definition of medical necessity for emergency mental health services and options for parental involvement in those determinations.

    The advisory group must also review the effectiveness of serving commercially sexually exploited children using PIT, involuntary treatment, or other treatment services. By December 1, 2018, DSHS must report the findings and recommendations of the advisory group to the Children’s Mental Health Work Group. WSSCSW has requested to participate in the PIT advisory group to advocate for youth interests and responsible, healthy parental involvement.

    Banning Conversion Therapy SB 5722 - PASSED. It is now an unlawful practice for any mental health provider to practice so called “conversion therapy” with LGBTQ minors.  We are the 10th state in the US to ban conversion therapy.

    An Act Related to Preventing Suicide by Permitting the Voluntary Waiver of Firearm Rights SB 5553 - PASSED.  This bill allows individuals to voluntarily waive their rights to purchase a firearm for a temporary period of time and can be used to help protect clients who are at risk for suicide. According to this bill, by January 1, 2019, the clerk of court will have developed a procedure by which an individual can sign a voluntary waiver and add their name to the Washington State Patrol electronic database. After seven days, the same individual will be able to revoke the waiver. The identity of those utilizing the procedure will be protected from public record throughout.

    Volk- No Legislative Action Available. There is still work to be done in the aftermath of the Volk decision, but it will have to be done outside the legislative session. This has been one of our primary areas of legislative effort in recent years due to its potential implications for practitioner liability. This year, we have gained a budget proviso that will allow us to develop best practice standards, which can be used as a legal defense against charges of negligence, but the court ruling will stand. For a more in depth look at the Volk case and its implications, please refer to the article Understanding Volk, also to appear in On Our Minds.

    Join the Effort!

    As you can tell, we’ve made significant progress in some areas, and still there is much work to be done! WSSCSW will be hosting an event for your continued education and involvement in our legislative efforts--you will have the opportunity to meet our lobbyist, express your legislative concerns and find out how you can help us accomplish our ongoing goals for advocacy in the coming months and years. Now, more than ever, we need to be vocal on behalf of our profession and the clients we serve so that we can sustain and grow the health of our communities. Detailed event information will be emailed to members and posted to the events calendar soon!

  • January 27, 2018 11:17 AM | Emily Fell (Administrator)

    Greetings from your Society lobbyists! The 2018 legislative session is about to start and will be what is called a “short” session (two months instead of the alternative-year four month, “long” sessions).   Most work will be to ‘kick the can’ down to next year’s session.  Here are the biggest issues that will affect clinical social work practice:

    1. Volk Decision -- We hope to pursue guidance and or training from the state to clarify the duties and obligations of mental health providers as a result of the Volk decision; this took most of our energy last year and is still an ongoing discussion.  The UW Law School Volk Survey Report was issued on December 1, 2017, and while it supported many of our concerns about the increased responsibilities of clinicians, there is no guarantee that the legislature will agree with the Report’s conclusions.  Nonetheless, we will be working hard to find a way to limit what appears to be an increased duty to warn.

    2. Ban Conversion ‘Therapy’ – Conversion ‘therapy’ is actually a position with religious roots that sees LGBTQ people as mentally ill and in need of ‘therapy’ to become mentally healthy. About 10 states have banned the use of conversion ‘therapy’, most commonly provided by clergy members, because it has caused so much emotional harm.  We hope to see Washington become the next state to ban it, a more likely prospect, since the Senate became Democratic last month.

    3. Medicaid Reimbursement – We all know how impossibly low the reimbursement rate is for mental health services under Medicaid.  The group most hurt by the lack of clinical services is children.  A bill is being dropped* to increase reimbursement rates for work with children, including coverage for any children with eating disorders.  This bill will also stop the rise of pre-authorizations for mental health services for children, which have again become a problem.

    4. Children’s Mental Health Work Group – In addition to the issues in #3 above, this Group will look at ways to preserve the rights of adolescents to confidentiality in mental health treatment, if they want it, while giving parents some information about their adolescent’s treatment.  This long-fought battle is still a difficult balancing act.  The Society will provide comments on this issue.

    5. Medicaid Mental Health Funding – Related to #3 above, this bill will be an effort to support increasing mental health provider reimbursement rates, especially for at-risk adults. Prevention would be the primary goal.

    Melanie Smith, our lead lobbyist in Olympia, and I will be working primarily on these issues at this point; more may arise as the session progresses.  We will be in close communication with Julia Kocian, LSWAIC, the Society Legislative Chair, and look forward to continuing to share information and updates.

    * Note: In the House, bills are introduced when they are dropped in the hopper, a wooden box on the House floor.

  • January 23, 2018 7:55 AM | Emily Fell (Administrator)

    The WSSCSW Ethics Committee created the following PowerPoint presentation to outline recent changes made by NASW to the NASW Code of Ethics. The Ethics Committee is committed to providing opportunities for members to think together about ethical challenges that arise in our field and practices. The committee chair, Ross Artwohl, is available for consultations as needed.  Ethics consultations can be scheduled either by phone (541) 223-2961 or email ethics@wsscsw.org

    Please click the image below to open the presentation on the recent NASW revisions to the code of ethics.

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