the scene of the disordered senses (katconfessional) wrote in ed_ucate,
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Ethical/Legal Issues in Treating AN (Part I)

When Does the "Duty to Protect" Apply with a Client Who has Anorexia Nervosa?
James L. Werth, Jr., Kimberly S. Wright, Rita J. Archambault and Rebekah J. Bardash
The Counseling Psychologist 2003; 31; 427

The role of counseling psychologists has expanded from the historical
emphasis of providing services to individuals with primarily developmental
concerns, typically in university settings (Gelso & Fretz, 2001), to include
working with individuals who have serious illnesses with both mental health
and medical implications (Roth-Roemer, Kurpius, & Carmin, 1998). This
evolution has served to blur the distinction between some of the mental health
disciplines in clinical practice. For example, persons with eating disorders,
once considered clients to be helped by clinical psychologists or psychiatrists,
are now treated in a variety of settings and by a variety of clinicians
including counseling psychologists. The need for counseling psychologists
to be familiar with eating disorder treatment was highlighted in a recent issue
of The Counseling Psychologist (TCP). Kashubeck-West and Mintz (2001)
asserted that “a working knowledge of [eating disorders] is critical for all
counseling psychologists working in applied settings including, but not limited
to, college counseling centers, private practices, and community agencies”
(p. 627).

Persons with eating disorders are challenging to treat, even for seasoned
clinicians, and this TCP major contribution was a welcome addition to the literature
that addressed many aspects of this area of practice. However, some
clinicians may be reluctant to work with clients with eating disorders, either
because they can be difficult to treat or because counselors do not feel sufficiently
trained. A survey of therapists in Florida revealed that one third did
not want to treat clients with eating disorders, primarily because they felt
frustrated and had minimal empathy for these individuals (Burket &
Schramm, 1995). An earlier study of Canadian psychiatric training centers
found that 88% of the students believed that they had been inadequately
trained to treat persons with eating disorders (Ghadirian & Leichner, 1990).
The inclusion of articles about eating disorders in the mainstream literature
means that more practitioners, when faced with clients who have eating disorders,
will have access to information without having to seek it in specialty
journals (Hotelling, 2001). With more information, training, and guidance,
perhaps clinicians will feel more prepared to provide treatment to these clients,
whose conditions can leave them so significantly impaired.

While the literature abounds with protocols that will assist the counselor
in case conceptualization and treatment (see Stein et al., 2001), a minimally
addressed issue is the ethical and legal quagmire that ensues as the health of
clients with eating disorders, particularly those with anorexia nervosa,
declines. For the therapist, the task is to balance the therapeutic needs of these
clients, particularly autonomy, with concerns about the person’s health.
Allowing clients to make their own decisions about treatment and recovery
may facilitate the therapeutic relationship but may increase the risk of medical
deterioration. Maintaining the balance between respecting the client’s
autonomy and protecting the client’s health is especially challenging. It is
within this context that practitioners, trainers, and supervisors could benefit
from a discussion of their ethical, legal, and clinical obligations when a client
with anorexia is in medical jeopardy (i.e., her or his life is in danger).

The purposes of this article are to (a) discuss the intersection between the
duty to protect (i.e., an obligation to take some action when a person is engaging
or considering engaging in a behavior that may lead to self-harm) and the
treatment of people with eating disorders, specifically anorexia nervosa; and
(b) provide some general guidelines for intervention. To determine whether
there may be an essentially heretofore neglected duty to protect in the case of
counseling with people who have certain eating disorders, this article first
provides a brief overview of anorexia nervosa and then reviews the incidence
of mortality in people with this condition. The next section outlines the duty
to protect in instances of self-harm and discusses legal options when a person
is considered to be at risk. Then, based on the information about anorexia and
the ethical and legal issues associated with the duty to protect, the question of
when this duty applies with clients who have anorexia is examined. The article
concludes with implications of this analysis.

ANOREXIA NERVOSA

Overview


According to the Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV-TR) (American Psychiatric Association, 2000a, pp. 583-589),
anorexia nervosa is a mental disorder classified under the rubric of eating disorders
with a lifetime prevalence among females of 0.5% (because 90% of
those diagnosed with anorexia are females and the prevalence among males
is one tenth that of females, we use female pronouns henceforth). The essential
characteristic of anorexia is a refusal to maintain what would be considered
a minimum body weight for the person’s age and height; this refusal is
related to the person’s disturbed perception of her body shape and weight.
Typically, the person is “intensely afraid” of gaining weight and, in
postmenarcheal females, amenorrheic. The DSM-IV-TR suggests that 85% of
expected weight is a threshold, while the ICD-10 Classification of Mental
and Behavioral Disorders (World Health Organization, 1992) suggests a
body mass index (BMI) of 17.5 (weight in kilograms/height in meters2) or
less, which is more strict. There are two types of anorexia: restricting and
binge-eating/purging. Unless noted otherwise, in this article, the term
anorexia will mean both types.

The DSM-IV-TR (pp. 585-586) indicates that when seriously underweight,
many individuals with anorexia may exhibit enough depressive
symptoms to be diagnosed with major depressive disorder (although the
symptoms may be secondary to the starvation). In addition, the person will
often exhibit obsessive-compulsive features, usually related to food. If these
thoughts/behaviors extend beyond food, weight, or body shape, then an additional
diagnosis of obsessive-compulsive disorder may be appropriate. Other
possible comorbid diagnoses include personality disorders and, perhaps,
impulse-control-related conditions (e.g., substance-related disorders).

Cognitive Functioning

Unfortunately, the DSM-IV-TR is silent about how anorexia can affect
cognitive functioning beyond mentioning comorbid mental disorders.
Experts on anorexia (e.g., Goldner, 1989; Goldner, Birmingham, & Smye,
1997; Kluge, 1991) and forensics (e.g., Appelbaum & Rumpf, 1998; Dresser,
1984a, 1984b; Dresser & Boisaubin, 1986) have noted that self-starvation
can interfere with conceptualization, perceptions, and decision making.
These cognitive deficits can impact the person’s ability to realistically assess
her situation and then impair judgment to the point that she is legally incompetent,
specifically in areas related to eating and receiving treatments
designed to increase weight and/or become medically stable. “The question
of competence for individuals with anorexia nervosa centers on their specific
ability to make rational decisions about nutrition, refeeding, and other medical
treatments” (Goldner et al., 1997, p. 454). In other words, the disorder
itself impairs judgment. Because they are often high functioning in other
areas, the lack of severe delusions or other psychotic features in these clients
can deceive some clinicians, attorneys, and judges (see Gutheil & Bursztajn,
1986). Depending on the course of the condition, these deficits may be apparent
in standardized psychological and neuropsychological testing (Bowers,
1994; Hamsher, Halmi, & Benton, 1981; Watson, Bowers, & Andersen,
2000). In more severe cases, the inability to care for self as well as the person’s
medical jeopardy will be evident to observers (Appelbaum & Rumpf,
1998; Dresser, 1984a, 1984b).

Although not a cognitive deficit in and of itself, the pattern of thinking by
the person with anorexia can be considered to be a thought disturbance.
Importantly, it is the ego-syntonic dimension of this thought disturbance that
negatively affects help seeking, treatment compliance, and retention in therapy
(Stein et al., 2001). Despite their obvious physiological decline, these clients
refuse to acknowledge the extent of their disorder and are secretly
pleased with their emaciation. Unlike those with other conditions, clients
with anorexia value and seek the symptoms of their disorder (i.e., thinness
and starvation). Because clients with anorexia rely on and value their symptoms
to organize and manage their lives, there is little or no incentive for
change, especially given their almost delusional capacity to ignore their emaciation.
There is, then, a synergy between the ego-syntonic dimension of the
disorder and the physiological-cognitive response to starvation. These cognitive
factors create a reinforcing loop that fuels and maintains the need for personal
control, to control food intake, and to resist change (and therefore
treatment).

Mortality

The DSM-IV-TR indicates that the long-term mortality for individuals
with anorexia admitted to university hospitals is 10%; death usually results
from the effects of starvation, an electrolyte imbalance, or suicide. These
conclusions were likely based on several studies and reviews that have been
conducted in the past 20 years on the causes and rate of mortality of those
who exhibit the condition (e.g., Crow, Praus, & Thuras, 1999; Deter &
Herzog, 1994; Eckert, Halmi, Marchi, Grove,&Crosby, 1995; Herzog et al.,
2000; Neumarker, 1997, 2000; Nielsen et al., 1998; Ratnasuriya, Eisler,
Szmukler, & Russell, 1991; Schwartz & Thompson, 1981; Theander, 1985).
After reviewing this research, Sullivan (1995) recounted this list of
comparisons:

The aggregate annual mortality rate associated with anorexia nervosa is more
than 12 times higher than the annual death rate due to all causes of death for
females 15-24 years old in the general population . . . and more than 200 times
greater than the suicide rate in the general population. . . . The annual mortality
rate associated with anorexia nervosa is more than twice that of a national study
group of female psychiatric patients. (p. 1074)

This led Sullivan to conclude, “These data highlight the status of anorexia as
a serious psychiatric disorder with a substantial risk of mortality” (p. 1074).
More succinctly, Neumarker (2000, p. 181) stated that “it is clear that
anorexia nervosa has the highest mortality rate of all the psychiatric illnesses”
(see also Griffiths & Russell, 1998; Harris & Barraclough, 1998;
Herzog et al., 2000; Nielsen et al., 1998; Vitiello & Lederhendler, 2000).

Some researchers have tried to determine which individuals with anorexia
are at higher risk of death. For example, Herzog and coauthors (2000; see also
Deter & Herzog, 1994) reported that 7 of their 246 female participants died
within 11 years (4 from complications associated with anorexia and/or alcohol
abuse and 3 from suicide). All of those who died had binge-eating/purging
anorexia at one point in their history, comorbid psychiatric diagnoses,
and an extensive therapy history—including 6 who had been hospitalized at
least once. The authors said their results indicated that lethality is related to
longer duration of illness, bingeing and purging, comorbid affective disorders,
and comorbid substance abuse.

The focus of this article is on anorexia as opposed to other eating disorders.
Although bulimia nervosa is also an eating disorder that affects significant
numbers of people and can have serious physical effects, it will not be
included in the discussion because (a) the data suggest less physical risk with
bulimia (Herzog et al., 2000; Nielsen et al., 1998), (b) people with this disorder
can usually be effectively treated in outpatient settings (Griffiths & Russell,
1998), and (c) individuals with bulimia are more likely to refer themselves for
treatment and therefore are more motivated to comply (Griffiths & Russell,
1998).

Summary


Anorexia is a diagnosable mental disorder that, if left to run its course,
leads to severe physical consequences, including significant mental impairment,
physical disability, and even death. In fact, the mortality rate for
anorexia is the highest of all psychiatric conditions. Before considering
whether these facts are sufficient to warrant imposing a duty to intervene on
counselors, fundamental aspects of ethics and the law must be reviewed.

ETHICAL AND LEGAL ISSUES WHEN
A CLIENT MAY BE AT RISK OF SELF-HARM

Ethical Considerations


An integral part of the psychotherapeutic process is the client’s understanding
and belief that what is discussed with the therapist will remain confidential.
Although what a client says in the therapy room is considered confidential
and is also protected by law (i.e., it is privileged communication) in
most situations, there are situations where the counselor is legally and ethically
able (or obligated, in some cases) to divulge what the client said
(Kitchener, 2000).

One of the limitations to confidentiality occurs when a person is perceived
to be at risk of self-harm. Although harm-to-self is often discussed in the context
of suicide, a close examination reveals that it is not the intent to die or to
cause harm to one’s being that is the key; it is that the behavior itself, or the
inability to manage one’s behavior, has the potential of causing significant
damage or death (Appelbaum & Rumpf, 1998). Therefore, whether a client
has suicidal ideation, expressed intent to kill herself or himself, or taken
actions that could be interpreted as suicidal is not the issue; the outcome is the
key point (Werth & Rogers, 2003). In such situations, a therapist must exercise
reasonable care to prevent foreseeable harm or danger that may result
from a client’s mental or physical incapacity (Bongar, 2002). This is an
example of the “duty to protect” applied to self-harm as opposed to harm to
others (see Bellah v. Greenson, 1978). Thus, although the duty to protect
grew from case law related to harming others (i.e., Tarasoff v. Regents of the
University of California, 1976), it has since been expanded to become an ethical
and clinical standard of care and to encompass other client actions
(Bongar, 2002; Vande Creek & Knapp, 2001).

According to the “Ethical Principles of Psychologists and Code of Conduct”
set forth by the American Psychological Association (APA) (2002),
psychologists are allowed, but not mandated, to break confidentiality if they
believe this is a way to meet the duty to protect (Barret, Kitchener, & Burris,
2001). Specifically, Standard 4.05 of the new APA ethics code permits psychologists
to disclose confidential information without the client’s consent to
protect the client from harm.

When a client is believed to be a harm-to-self, there is no set of legal guidelines
or clinical practices that can guarantee that a therapist will be protected
against civil or criminal liability; however, there are clinical and legal standards
of care that all professionals are expected to follow (Bongar, 2002;
Bongar et al., 1998). The standard of care is broadly defined as the required
degree of skill, care, and diligence that a similarly trained professional would
provide under similar circumstances.

In terms of clinical standards of care, there are issues that are reasonable
for a therapist to pursue in the case of a client who is a danger to self, most
notably, evaluating risk of harm (Bongar, 2002). Westefeld and colleagues
(2000; see also Bongar, 2002) provided a list of variables that should be taken
into account during such an evaluation. Once a client is perceived to be at risk
of potential harm-to-self, a variety of interventions can be utilized, depending
on the therapist’s assessment of the situation (Bongar, 2002; Westefeld
et al., 2000). Among other things, the counselor can consider making a contract
with the client, increasing the frequency of sessions, adding a treatment
modality, seeking permission to break confidentiality, breaking confidentiality
without the client’s consent, pressing for voluntary hospitalization, or trying
to force involuntary hospitalization (see also Bongar, 1992; Jacobs,
1999).

Ethical Meta-Principles

The ethical meta-principles such as autonomy, beneficence,
nonmaleficence, justice, and fidelity have been discussed as important
aspects of ethical decision making in counseling psychology for nearly two
decades (Kitchener, 1984; Kitchener&Anderson, 2000). Although the interpretations
of these principles are culture-bound and potentially problematic
(see, e.g., Blackhall, Murphy, Frank, Michel, & Azen, 1995; Carrese &
Rhodes, 1995), the principles are relevant in this context, and the interplay
between them contributes to the dilemma faced by the clinician (Goldner
et al., 1997). For example, many authors have emphasized that autonomy
(i.e., control) is such an important issue for individuals with anorexia (e.g.,
Russell, 2001; Stein et al., 2001) that a desire may exist to maximize this principle;
however, beneficence and nonmaleficence may conflict with autonomy,
given that death may result, and therefore may temporarily override
autonomy (Griffiths & Russell, 1998). Thus, the question for the counselor
may revolve around when, if ever, the client’s autonomy should give way to
the therapist’s interpretation of what constitutes beneficence and
nonmaleficence.

Legal Considerations

For the purposes of this analysis, three important legal issues are germane:
(a) whether state law mandates intervention when a counselor believes a person
may harm himself or herself, (b) when involuntary hospitalization (i.e.,
civil commitment) is possible in situations involving self-harm, and (c) when
treatment can and cannot be refused. These matters are discussed in turn.
Just as some psychologists may erroneously believe the APA ethics code
(2002) mandates breaking confidentiality (or some other intervention) when
a person is believed to be at risk of self-harm, some may think that state laws
require intervention in such situations. However, with only a few exceptions,
this is mistaken. Most state laws related to potential harm-to-self are similar
to the APA ethics code in that they allow, but do not mandate, action (Werth,
2001; see also Barret et al., 2001). The intervention discussed in state laws
related to self-harm is involuntary hospitalization.

In terms of civil commitment related to self-harm, a person can be judged
to be a danger to herself or himself to a degree that legally allows for intervention
in two ways: The self-harm must be the result of (a) a mental illness or (b)
grave disability (Appelbaum & Rumpf, 1998; Werth, 2001). Although the
mental illness criterion is typically vaguely defined in laws, aDSMAxis I disorder
would likely suffice. Grave disability, in essence, means that judgment
is so impaired that the individual cannot take care of herself or himself: One
example of this may be intentional malnutrition (Appelbaum & Rumpf,
1998).

However, even if involuntarily hospitalized, a person has a right to refuse
treatment unless (a) declared legally incompetent or (b) competency is in
question and a life-threatening emergency arises. In the latter case, after stabilization,
competence must be reassessed, and treatment refusal may take
place unless a court declares the person incompetent (Appelbaum & Rumpf,
1998; Dresser 1984a, 1984b; Dresser&Boisaubin, 1986). If deemed incompetent,
a person with anorexia can be force-fed; this situation is referred to as
compulsory treatment.

Summary

Psychologists who have a client in danger of self-harm must practice up to
the standards of care, which means that they have a duty to protect the client.
Many interventions may satisfy the duty, and both the APA ethics code
(2002) and most state laws allow for (but do not mandate) the breaking of
confidentiality and attempts at involuntary hospitalization in certain situations.
However, except in rare circumstances, the client has the right to refuse
treatment.
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