With the advent of Medicare-funded psychology services, the work of many psychologists extends across both the public and private sectors, with some consulting quite different client groups in each setting while others work with very similar client groups. Legal and ethical issues for psychologists traversing public and private contexts can emerge on a regular basis, so it is important to recognise the situations where careful navigation is required. The legal issues often relate to contracts of employment and the requirements of Medicare-funded psychological services. Those involving ethical matters more frequently involve professional boundaries and multiple relationships, potential conflicts of interest, and potential exploitation.
This article presents some situations that members have encountered when working across the two sectors and provides responses which have been prepared by professional, ethical and legal advisory staff in the National Office. It is important to note that each individual situation will be different, and that the responses provided are to be used as a guide only. The questions and responses should serve as a reminder to psychologists to be alert for ethical and legal considerations, as providing services across the two sectors can be fraught. Psychologists who find themselves faced with ethical or legal dilemmas when working across public and private sectors are also encouraged to seek consultation with a senior colleague who will be able to provide appropriate guidance.
In my public sector job I see clients for short-term work and many want to continue seeing me privately once they have reached the maximum number of sessions available through the agency. My employer does not see this as appropriate. What are my obligations to my employer and to my clients?
When seeking psychological services from a private practitioner a client has the right to choose the service provider and may understandably seek to continue with a provider with whom he or she has already built rapport and to save retelling the history. However, as employees psychologists should not use their position to coerce clients to consult with them in their private practice. This may be seen to be exploitation of their employer and the client.
As stated in the APS Code of Ethics (2007), the best interests of the client are paramount, but employees also have an obligation to their employer. It is preferable for psychologists to review their contract terms with their employer and to reach agreement with the employer first about possible circumstances such as these, so as to provide clear information to clients.
Do I need to inform my employer if an ex-client from my public sector job wants to consult with me in my private practice?
As stated above, when seeking services from a private practitioner a client has the right to choose the service provider. However if you believe that the provision of the services would be in conflict or impact on your work as an employee, then it would be advisable to discuss the issue with your employer. Care should be taken not to disclose the client’s identity unless prior consent has been sought from the client.
I am an employee in a public sector service and seeing a client who has suffered major trauma and seems to need more frequent sessions than the once per week allowed through the agency. Can I see that client for concurrent additional sessions in my private practice?
It would be problematic to see the same client in both public and private settings at the same time, as the extent and overall responsibility for the client would be blurred. For the agency there would be an issue of not being able to oversee the work with the client in private, and there would also be confusion about whether information gathered privately may be referred to when the client is in the public sector service. If the client is vulnerable and appears to need additional sessions, then this matter needs to be raised with the responsible manager in the public sector setting.
Although the motivation may be well intentioned, in this scenario there is a strong chance that concurrently seeing a client who has access to public sector services as a private client may be perceived as exploiting the client of the system.
I am working with a couple in my private practice and have just become aware that their daughter-in-law is a client of mine at the community mental health service where I work. Is it acceptable to continue to see all family members? If not, how do I decide which of them to refer on and how do I tell them?
The key question in this situation is to decide whether consulting both the couple and their daughter-in-law has the potential to impair your competence, effectiveness, objectivity or ability to render a psychological service. If the issues being addressed by each client do not overlap, then there is less chance of your psychological service being compromised. However, if, for instance, the daughter-in-law is complaining to you about her husband’s parents, then it may be difficult to continue seeing both clients. Deciding which client to continue with is not easy, and depends mainly on the level and extent of service already provided to each client and the availability of alternative referral options.
In such situations it is helpful to consult with a senior psychologist to attempt to find an appropriate resolution that is in the best interest of all parties involved, and one that can be executed without compromising client confidentiality.
One of my ex-private practice clients has started receiving services at the community health setting in which I work. How much information about the client’s previous sessions with me can I share with the treating health professional?
As a psychologist you have a responsibility to maintain confidentiality of all information you may hold about a client or former client unless the client consents to the sharing of that information. If you believe that it is in the best interests of the client for the agency health professional to receive information from you about the client, you should discuss this with the client and seek his or her consent.
As part of my contract of employment in a private health clinic for children with autism, I was asked to sign an agreement that I not provide psychological services to this client group on an independent basis. I signed the contract but have since been advised by colleagues that this is an unreasonable demand. I am wondering whether this is legally binding or whether it would be considered to be anti-competitive.
It is not uncommon for a practice to seek to protect its business by including a restraint provision in its contractual agreements with service providers. Restraint provisions are interpreted strictly and are generally enforceable only so far as they reasonably protect the interests of the business seeking to enforce them. Restraint provisions should be specifically limited by time and geographical area, and relate directly to past, existing or future clients that the psychologist had, has or will have contact with in that practice. It is unlikely that such a broad provision simply identifying a broad client group would be enforceable by the employer as it is not directly linked to the employer’s actual business, but it would be wise to seek individual legal advice on this matter.
One of the other health professionals in the public sector agency where I am employed remarked that the child she was seeing for mobility problems also experiences considerable anxiety. I mentioned that I work with children with anxiety and gave her my private practice business card. She thought this was inappropriate and complained to my manager. Is there any reason that I cannot promote my private practice work in my workplace if I believe that I could work with the client?
One reason why your colleague may have been concerned is that her client would most likely be able to access your services (expertise on people experiencing anxiety) through the publicly-funded agency. By initially promoting your private practice ahead of an internal referral within the agency, it may have appeared that you were attempting to exploit your professional relationships.
I have received a referral from a psychiatrist under the Better Access initiative to provide services to a client who is currently an inpatient at a public hospital. The psychiatrist said that the patient refuses to have counselling from anyone working at the hospital, and the only option is to bring in a private practitioner. I am concerned that this may not be allowed under the Medicare regulations.
Medicare services for psychology cannot be offered in a setting that is already funded by Federal or State or Territory governments and hence cannot be provided to an inpatient of a public hospital. An exception to this rule has been made for Aboriginal Community Controlled Health Services.
It is possible, however, for a private practitioner to provide psychological services to an inpatient at a hospital on a fee-for-service basis, but these services cannot be provided under the Better Access initiative and cannot attract Medicare rebates.
A psychiatrist who works part time in an inpatient unit but also works privately has referred a client to me under the Better Access initiative. The client is just about to be discharged from hospital where he has been receiving treatment following an incident of significant self-harm. In the referral letter the psychiatrist provides a diagnosis of Borderline Personality Disorder. Can I provide Medicare-funded psychological services to this patient?
If the primary diagnosis is Borderline Personality Disorder, treatment of this client is not an eligible service under the psychology Medicare items under the Better Access initiative. It would be advantageous to discuss this matter with the psychiatrist to ensure that the client is linked in with other appropriate supports on discharge from hospital.
A paediatrician in a public hospital has provided a Better Access referral for a current patient. She has requested that I meet the young girl prior to discharge to build rapport and establish a treatment plan. Can I do this as an out-of-office service under Medicare?
Medicare services for psychology cannot be provided in a public health setting that is already funded by Federal or State or Territory governments to provide such services, hence an out-of-office Medicare item cannot be used in this situation. Some public health settings provide private clinic facilities on the same premises where practitioners can provide privately funded services, but in order to attract a Medicare rebate for the service, the psychologist must have a Medicare Provider Number registered to the private clinic address and see the patient in the private clinic. In this situation, it would not be an out-of-office service that was provided.
Enquiries regarding ethical and professional matters should be directed to the APS Professional Advisory Service by telephoning or emailing the APS National Office.