Two Practical Perspectives
By Steven Frankel and Clifton Mitchell
A therapist–lawyer on what most often gets clinicians in trouble with the law and everything you need to know about the duty to report, to warn—and more.
Somewhere in the back of every therapist's mind is the nightmare scenario: although convinced of your innocence and therapeutic intent, you're sitting in a courtroom or in front of a license board, accused of failing to live up to your professional responsibilities as a clinician. While some of the transgressions that can put therapists at risk are clearly spelled out-sexual relationships with clients, billing fraud, professional incompetence that leads to physical or psychological damage-other violations may be more ambiguous. In what follows, two experts respond to common questions clarifying how therapists can avoid putting themselves in jeopardy, legally and ethically.
Legal Do's and Don'ts
A brief guide to risk management
By Steven Frankel
Q: What are the things that get therapists in trouble more than anything else?
The two most frequent problems are competence and dual relationships, including sexual transgressions. The third and fourth are personal or unprofessional conduct-violating the statutes, regulations, or rules of your license board.
By "competence" I mean learning some new techniques at a workshop and then applying them without supervision or consultation. Since you're not competent with the approach yet, you get into trouble because someone claims he or she got hurt, and that becomes a case.
Q: What are the main distinctions between a malpractice suit and a board violation?
To win a malpractice suit, an aggrieved client has to show that the therapist violated a standard of practice and that the violation caused harm, inflicted monetary or emotional damages, or whatever. By contrast, a board can act against you just by finding out that you did something wrong.
Q: What areas have seen the highest increase in lawsuits?
Suicide and sex with clients are the most frequently litigated areas these days. The suicide lawsuit can come from a client who survives the attempt and then goes after the therapist for insufficient protection, or from the client's angry family.
Q: What do licensing boards consider inappropriate personal conduct?
Actions for personal conduct are about boundaries and getting arrested for any crime. When a therapist is driving drunk and gets a DUI, the board will take action because being intoxicated is substantially related to the person's ability to function as a mental health professional. So alcohol abuse will trigger a licensing board investigation in just about every state now.
Q: Are the criminal offenses of mental health professionals monitored?
Whenever a professional therapist is arrested, the state will alert the licensing board. I've represented clinicians in California who were arrested for drunk driving, driving under the influence of drugs or chemicals, who've had shoplifting episodes, and who've had insurance-fraud issues. Those are the kinds of activities that get therapists in legal and licensing trouble.
Q: In contrast with inappropriate personal conduct, what constitutes unprofessional conduct?
Let's say you hire a student, intern, or psychology assistant: you have to pay for that yourself; the money has to come out of your own pocket. Also, you can't charge for rent when such persons are under your supervision and seeing patients that you refer to them. If you violate that rule, it's unprofessional conduct. Violating any of the rules of the licensing board, including advertising inappropriately, is considered unprofessional conduct.