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With a certain amount of hemming and hawing, the board dropped all charges—as they often do in such cases—but to save face, members required that the therapist take an ethics class anyway.

In another case, I defended a deaf therapist who worked with a deaf client with whom she'd socialized at a social club for deaf people. The charge, of course, was boundary violation and dual relationship. But as I successfully argued to the board, what other choice did the client or therapist have? Therapists who know sign language don't grow on trees. Furthermore, a boundary crossing—being a part of the same deaf community as the client—isn't the same as a boundary violation. Would it have yielded a higher level of care to hire an interpreter to sit in on sessions with a therapist who couldn't sign, but was a perfectly anonymous stranger to the client?

I've also testified on behalf of therapists accused of having sexual relationships with their clients. The basis of the accusations? The therapists had been asked about their sexual orientation by gay clients and had answered the question honestly before the first appointment. Such a conversation doesn't suggest a burgeoning sexual relationship, I found myself explaining, but rather fact-finding on the part of a client who's trying to protect him- or herself in a deeply homophobic culture, and a therapist's recognition of that need for self-protection.

 

Fostering a Culture of Fear

Welcome to the wonderful world of "risk management." Even though cases like these are quite rare, the fact that they can and do happen, and are often based on anachronistic and rigidly legalistic rules, strikes dread into the heart of most therapists. The therapists above were certainly not acting unethically or unprofessionally—quite the opposite—but they were arguably failing to follow what the malpractice insurance industry considers good strategies of risk management, or "healthy defensiveness," as some attorneys call them. Risk management is a term referring to the avoidance of certain practices and interventions by therapists—not because they are clinically ill-advised, unethical, harmful, or wrong, but because they may appear so to judges, juries, licensing boards, or ethics committees. Risk management isn't synonymous with ethical principles and good clinical practice, but, in our increasingly jumpy profession, these concepts are often regarded as synonymous.

In a culture of litigation run amok, therapists aren't the only ones afraid of legal or professional liability. We all know that many obstetricians no longer deliver babies because the threat of malpractice has run their insurance premiums through the roof. Physicians routinely practice "defensive medicine," by ordering large numbers of expensive and probably unnecessary diagnostic tests (wasting an estimated $50 to $100 billion annually), because they don't want to end up defending themselves in court. Playgrounds around the country have been stripped of monkey bars, high slides, and swings because of lawsuits filed by parents whose children were allegedly injured on them. Ministers, teachers, coaches, and youth counselors stringently avoid touching boys, girls, or women for fear of being accused of sexual misconduct and of "abusing" their professional trust.

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