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.
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.
The Limits of Confidentiality
The duty to report and to warn
By Clifton Mitchell
Q: Most therapists understand their responsibility to report child abuse, but what about statutory rape?
The laws defining statutory rape differ from state to state, the only similarity being in the structure of the definitions. Statutory rape laws are defined by the ages of the parties having sexual intercourse: there’s a younger party who’s between two particular ages, and an older party who’s a number of years older, and they’re having sex. When the age differences are deemed to be significant, states take away the younger party’s legal right to consent. Thus, statutory rape is socially consenting sex between two parties, but because of age differences, the state has removed the younger party’s right to consent.
Because the relationship between the parties is not a custodial-caretaker relationship, as is required for an act to be child abuse, most states have no statutory rape-reporting laws, and mental health professionals are usually not legally required to report. Unfortunately, there’s little consistency among states regarding age differences. The situation is further complicated because, even though statutory rape is legally different from child abuse, some state’s departments of children’s services still take statutory rape reports. Whether or not statutory rape reports are accepted by child services differs considerably from state to state. For example, Florida and California have enacted mandatory statutory rape-reporting laws under certain circumstances. If you live in those states, you should study the circumstances for which you’re required to report. As always, check your state’s procedures before you act.
Q: What about the duty to report rape?
In most states, there’s no duty to report rape unless it’s in the context of child abuse. This is surprising to the public and mental health professionals alike. In cases of a rape by a stranger or in a dating relationship, the rights of confidentiality reside with the person who’s been assaulted. Rape of children and other sexual behavior with children should be reported under child abuse laws. For example, in Tennessee, the department of children’s services wants to be informed of all sexual behavior for children under age 13.
Q: What are your legal and/or ethical obligations when a 16-year-old female tells you she’s having sexual intercourse with her 18-year-old boyfriend?
This is a consenting sexual relationship in a “romantic” context in virtually every state in the country, and there’s no duty to report. We should be careful lest we become the sex police. Yet again, you should check with your state’s laws for guidance and age differences. As noted, California and Florida may require reporting under certain circumstances.
Q: So what are your legal and/or ethical obligations when a 15-year-old female client reports that she’s having intercourse with her 26-year-old boyfriend?
This is statutory rape by the laws of most states, but, technically, it could be argued that there’s no duty to report. Ethical guidelines require that you report in accordance with the laws of your state and offer no specific guidance in such cases. However, Florida and California are the two states that would likely mandate reporting in this instance and, because of the age difference, most departments of children’s services would take this type of case and work with attorneys to decide whether any law had been broken.
Q: What are your legal and/or ethical obligations when a 15-year-old female tells you she was date-raped by a 17-year-old male?
That’s rape. Many people use the term “date rape,” but I can find no unique laws addressing date rape. As noted, unless it’s in the context of child abuse and thus occurs within a custodial-caretaker relationship, most states don’t have mandatory rape-reporting laws. The rights of reporting in this case go to the client, and you should consult with the client about how she wants to proceed. Of course, it would be prudent to educate the client and provide support for revealing the information as she desires.
Q: What are your legal and/or ethical obligations when a 9-year-old male reports to you that his neighbor fondled his genitalia?
This is a clear case of child abuse. A neighbor would be considered to be in a custodial-caretaker relationship simply because of being close to the family. This isn’t proper sexual behavior, and you should report it as child abuse to your local department of child services or child-protective services. Most states require reporting of sexual behavior of children regardless of context. When in doubt, consult with your local department of child services.
Duty to Warn
Q: When is there a duty to warn another person of a client’s stated intentions to inflict physical harm?
Because they were all modeled after the Tarasoff ruling, duty-to-warn laws are quite similar from state to state. Most duty-to-warn laws say that when the client communicates to a mental health professional the threat of bodily harm to an identifiable victim and has the ability, or is perceived to have the ability, to do the harm, the mental health professional must inform the victim, have the client admitted to a mental health facility-either voluntarily or involuntarily-or take some other action to discharge the duty to warn.
Gerald Corey, author of Issues and Ethics in the Helping Professions, created a set of guidelines called “Should We Act or Not?” that lists questions to ask yourself in this type of situation. He says that if you answer yes to two or more of them, you probably have a duty-to-warn obligation. While these questions aren’t legal recommendations, they do provide good guidance. The questions include:
- Has the client expressed some specific intention to commit violence, as against transitory thoughts or expressions of feelings?
- Has the client identified the kind of action he or she intends?
- Does the client have the ability to carry out the action?
- Has the client identified an intended victim and/or plan of action?
- Is the client unable to understand what he or she is doing and incapable of exercising self-control? (History of prior violence would be a negative indication.)
- Is the client incapable of collaborating with the therapist in maintaining control of his or her behavior?
Q: How should you proceed when you conclude that there’s a duty to warn?
Remind the client of your ethical and legal obligation to warn. Invite the client to participate in the process, if possible. Develop a plan with the client to surrender weapons, which are critical to being able to harm others. Inform your supervisor, attorney, law enforcement, local psychiatric hospital, and the intended victim, depending on what you can do in your state to discharge the duty. Keep careful records of all actions taken. Your records are your defense, and these are cases for which your documentation needs to be specific and detailed to show proof that you’ve done what you needed to do to discharge your duty. If you have a violent client in your office, there’s no code or law mandating that you put yourself in danger to discharge your duty to warn. If you feel that you’re going to be attacked or that you’re in danger, you don’t have to inform the client of your intended actions, and you shouldn’t bring the client into the process.
Q: Is there a duty to warn with a client who threatens to blow away the next driver who cuts him off in traffic, when you know the person carries a loaded 9 mm under the car seat?
This is a case to sit down and talk to the client seriously about your obligations: “Hey, I have a duty-to-warn obligation here. You’re scaring me, and I have legal obligations that I will honor.” Let the client know that you don’t want to be put in the position in which you’re trying to make this judgment call, and try to convince the client to get the gun out of the car. If the client doesn’t cooperate and remove the gun, and doesn’t indicate that his/her statements are only expressions of frustration, I personally would begin duty-to-warn procedures. In my opinion, the presence of the gun contributes significantly to the seriousness of your duty.
Consulting is important in a situation like this. Call your professional organization and ask what they recommend. They may give you some clarity. And document, document, document.
Q: Is there a duty to warn when a client says that she’s going to kill the woman her husband’s having an affair with, and that she’s narrowed it down to one of two people and plans to follow her husband to his “meeting” that night to find out who the woman is?
This is a clear-cut duty-to-warn case, and I wouldn’t hesitate to tell the client that. There’s an identified victim and threat of bodily harm. It doesn’t matter that there are two choices, because the victim will be whoever shows up with the husband. So there’s undoubtedly enough information to require breaking confidentiality and reporting.
Q: What are the ethical and legal duties around self-injurious behavior?
Under our codes and laws, as long as a client isn’t suicidal or doing harm that could end in death, we’re generally not obligated to report self-injurious behavior. There’s no code or law that mandates breaking confidentiality for self-injury; however, some mental health facilities and school systems may have policies that require reporting.
Don’t assume that self-injury is a failed suicide; usually it’s not. Research indicates that people often self-injure so their stress doesn’t get so bad they consider suicide. Yet because many self-injurers have indicated suicidal thoughts and attempts, you should conduct a suicide assessment to assure and maintain competent clinical practice.
Clifton Mitchell, Ph.D., conducts legal and ethical training throughout the county utilizing a stimulating game-show format, where participants play variations of Jeopardy and Family Feud with thought-provoking legal and ethical questions.
Illustration © Rex Bohn