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Psychotherapy And The Law - Page 2

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Q: What's fraud?

You won't see a lot of cases of fraud, but when you see one, it's serious because boards hate fraud-doing or saying something that isn't true, or withholding something important. Let's say you're billing for insurance and you use a 90847 code, which is family therapy, but you don't document the name of the family member who attended the session with your client. The insurance company will say that's fraud: you withheld the information about the person for whom you billed. You could have done an individual therapy session, but billed for family therapy, which pays more.

Licensing boards exist for the sole purpose of protecting the public from being harmed by those being regulated. A board will view somebody who's committed fraud-who basically lied-as having a moral flaw, which creates a public danger. If you commit fraud, the board is likely to revoke your license.

Q: How likely is it that mental health professionals will encounter malpractice suits?

In the world of bad things that happen to professionals, mental health professionals are blessed. We have lower rates of malpractice suits and lower rates of board actions than those of any of the learned professions. I'm in my 15th year of law practice-and I don't work with a high-risk legal population-but I carry as much legal malpractice insurance as I can. That costs me $1,000 a month. By contrast, the mental health malpractice insurance I carry for the psychology practice I've had for over 40 years costs $1,000 a year.

Q: How do therapists avoid boundary crossings or boundary violations that can get them in trouble?

A boundary crossing is a departure from the usual norms of therapy-the verbal and physical distances normally maintained in a therapeutic relationship. Beyond that, boundary violations take you out of the therapist role. But, of course, boundaries are relative. In certain cultures or instances, if you don't shake hands or touch somebody, they may feel disrespected; in other cultures or instances, if you do, they may feel disrespected. So cultural variables are important. Boundaries are all about the psychological meaning of interactions.

Q: Because cultural norms have changed so much in the past 20 years, how should you apply the guidelines about boundary crossing and boundary violation to physical contact?

I'd discuss it with clients in the context of informed consent. In one of the first sessions, I'd say, "Look, there may be times during the work that we do together when I'll be touched by something you're going through or at the end of a session I'll want to make contact and, if you're inclined and I'm inclined, maybe I could put my hand on your shoulder or we could hug. But I want to talk about that before I do it, because I want to discuss what it means to you, what it means to me, and what you think it means to me."

Q: When does self-disclosure become a boundary crossing?

Think about a client you've been seeing for a long time. Close your eyes and ask yourself: if this client were to describe everything he or she has come to know about me during all our years of therapy together, how many pages would it cover? If you feel a twinge of distress about this somewhere in your body, then shut up about yourself.

Q: How can therapists be alert to these sensitive ethical issues without becoming so guarded that they can no longer connect with their clients in a free, engaging way?

In the area of self-disclosure, there's nothing wrong with being a self-disclosing person because it's part of a therapeutic relationship. The question is whether the self-disclosure is really about doing effective therapy or is bragging about something that's going on for you personally. Those are the kinds of questions you need to be looking at.

Q: What advice can you give to therapists for keeping themselves clear of problems?

Stay with what you know, do supervision, do consultation. Keep up-to-date records: if it's documented, it happened; if it isn't, it didn't. Check on your malpractice insurance and make sure you have licensing-board insurance. Most insurance policies carry minimum licensing-board coverage, so make sure you have sufficient coverage. Other than that, be well-rounded in life and, just for the hell of it, think about what you'd do if you weren't a therapist anymore. How would you spend your time? How would you spend your energy? What kinds of things in life would you want for yourself? Then, live long and prosper.

Steven Frankel, Ph.D., J.D., is an A.B.P.P.-certified clinical and forensic psychologist, as well as an attorney at law. He's currently a clinical professor of psychology at University of Southern California. Contact: Tell us what you think about this article by e-mail at, or at Log in and you'll find the comment section on every page of the online Magazine.

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