When Ethical Standards Hold Us Back

"Forbidden" Acts May Be Among the Most Powerful Methods at Our Disposal

Ofer Zur • 6/29/2017 • 1 Comment

Recently, I defended a therapist accused by his licensing board of unethical practice. At the administrative hearing, a psychoanalytically oriented board representative aggressively questioned him, berating him for not maintaining a neutral, anonymous therapeutic presence with his client, saying this constituted a transgression of appropriate boundaries. The therapist, said his interrogator, had, in effect, engaged in a "dual relationship" with his client and "harmed the transferential relationship." The board considered the infraction so serious that they sought to revoke the therapist's license for "breaching the therapeutic frame."

What had he done that was such an outrageous affront to therapeutic ethics and professionalism? A cognitive-behaviorist, he'd departed from strict "talk therapy," and accompanied a phobic client to a bank and a supermarket—places the patient had avoided for years. The therapist had conducted a standard cognitive-behavioral form of exposure therapy, an empirically supported intervention, and was operating fully within the professional standard of care. Not to mention that the treatment worked: the client's agoraphobia completely disappeared.

I patiently explained at the board hearing that crossing a boundary from in-office treatment to out-of-office treatment wasn't the same as engaging in a dual or secondary relationship with the client—the relationship remained therapeutic, even though the geography changed. I stated that staying in the office, regardless of the presenting problem, may seem like the only correct methodology to psychoanalysts, risk-management consultants, and many attorneys, but it may not actually help people who suffer from agoraphobia or social phobia. These clients need a therapist who's willing to leave the sanctity of the consulting room and accompany them as they practice mixing with crowds in public spaces. Finally, I tactfully suggested that transference is a strictly psychoanalytic construct, neither applicable nor useful in cognitive-behavioral therapy—an entirely different but just as legitimate approach.

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.

Currently, the field is so deluged with dire warnings of imminent professional ruin that many therapists practice under a cloud of fear. There's now a huge literature on the subject of risk management, including scores of books with titles like Fifty Ways to Avoid Malpractice, by Robert Henley Woody, and On Your Side: Protecting Your Mental Health Practice from Litigation, by J. Michael Adams. The insurance industry provides its own, often pricey, version of risk-management workshops.

The Chilling Effect of Self-Watchfulness

The most frequently uttered words coming from these sources seem to be "don't" and "never." Consider the commandments regularly issued against what these experts consider dangerously risky behaviors. "Don't touch your clients—a handshake is the outer limit!" "Minimize self-disclosure; keep your anonymity intact!" "Never venture outside the office with a client!" "Don't accept gifts from a client!" "Never socialize or share a meal with a client." As Richard Leslie, an attorney specializing in psychotherapy issues and a consultant to the American Association of Marriage and Family Therapy, put it in one all-purpose rule, "If you have to ask, don't do it!"

The problem with these blanket condemnations is that many of the forbidden acts may be among the most powerful therapeutic methods at our disposal. We know that touch is one of the most elementary human ways to relate, and can have a powerful reassuring and healing effect. Self-disclosure can help fearful and defensive clients connect with us, and learn from us through modeling—a proven cognitive-behavioral intervention in itself. Sometimes going to the client, rather than making the client come to us, is the only reasonable way of doing therapy: take, for example, the empirically successful home-based family therapies with juvenile offenders, or therapy with a homebound sick or elderly client. A gift may be an important way for a client to express gratitude; refusing it could be deeply offensive and shaming. Sharing a meal with an anorexic client is often part of an effective, system-based treatment plan. "Dual relationships" with clients are often unavoidable and therapeutically helpful for a therapist who works in a small town or rural setting—your children may go to the same school as your clients' children; you may belong to the same church or synagogue. Conscientious, ethical therapists know all this, but even as we necessarily engage in these "forbidden" activities in the interest of being good therapists, we may feel a shudder of apprehension that we're somehow dangerously flouting rules written in stone.

At workshops, I regularly field questions from experienced therapists who agonize about issues that ought to be far less fraught with ominous implications. Should they accept a gift of home-baked cookies from a client at Christmas? Should they ever give a small gift to a client that they think might serve a therapeutic purpose—a blank-paged book for journaling, for example? Should they go to the recital of a child whom they've coached through paralyzing stage fright? Should they acknowledge a client in a grocery store or at synagogue or at the town's one health club, or slink away at first sighting?

This isn't to deny that most interactions between therapist and client—including touch, self-disclosure, gifts, dual relationships, boundary crossings—require from the clinician solid judgment, sensitivity, awareness of the context, critical thinking, and a certain tolerance for uncertainty, but resources are available to help therapists make decisions about unusual situations. To turn Leslie's advice on its head, "If you have to ask, consult!" Good therapists should and do consult with experts on ambiguous and complex questions of boundaries, confidentiality, and dual relationships all the time, but therapists in today's climate often seem driven by fear that's out of all proportion to the actual risk.

Even more disturbing, therapists sometimes seem on the brink of not doing what they know and feel is good therapy, in the interest of practicing hyperdefensive therapy. Always looking over their shoulders, as it were, fear leads them to commit what Arnold Lazarus called, "the worst professional or ethical violations"—taking care of themselves at the expense of their clients' care.

The Downside of Risk Management

Confusing risk management with a highly ethical and clinically sound standard of care ultimately undermines the latter and does a poor job of protecting the therapist. So, what's a therapist to do who wants to practice good therapy, but not end up on the wrong side of a trial or disciplinary hearing? First, we need to arm ourselves by learning about psychotherapy-outcome research, particularly as it applies to our own methods. Often licensing boards, investigators, and attorneys have little clinical understanding. Second, it should be obvious that we must be knowledgeable about the codes of ethics and state laws that apply to our field—psychology, social work, or counseling. And unlike the advice from the risk-management types cited above, we shouldn't be afraid to consult colleagues and appropriate experts whenever we're uncertain about something, and keep a record of the consultation.

This brings us to probably the most important single preemptive defense against getting into trouble: keeping good records. Generally, licensing boards decide whether clinicians have operated within the standard of care not by interviewing them personally, but by sifting through their records. In civil law suits and administrative hearings, it's often the client's word against the clinical records. Not only should clinicians keep good records on diagnosis or presenting problem, assessment, and mental status, but they should also keep notes on relevant biographical background information, treatment planning, crisis interventions, special phone calls, emergencies, and so on. It's particularly important to keep records of boundary crossings, dual relationships, and complex clinical, legal, and ethical issues. Make a note of anything you do that might be defined as a boundary crossing—giving or receiving gifts, extensive touch, exchanging therapy for barter, meeting a client outside the office, seeing somebody in therapy that you know in another context—and explain why you did it. What were the benefits to the client? What might have been the risk had you not accepted that gift? Would therapy have come to a screeching halt if you hadn't taken therapy out of the office? It may be helpful to remember that therapists most often get into trouble not because they did the wrong thing, but because they didn't follow (or didn't document) the right decision-making process.

If we try to combine the role of lawyer and therapist, we'll inevitably make a hash of both. The best and truest kind of "risk management" isn't motivated by fear of taking a wrong step or making a wrong move: it's based on therapeutic competence; knowledge of the laws and codes of ethics; a deep commitment to our clients' welfare; our own maturity, professional development, and common sense; and our ability to think critically, work only within our scope of practice and competence, and carry out an ethical decision-making process. Then, of course, we must bear in mind the importance of informed consent, thorough documentation, and consultations. Without these qualities, we won't be good therapists, no matter how much case law we memorize.

***

This blog is excerpted from "The Ethical Eye" by Ofer Zur. The full version is available in the July/August 2007 issue, "Is Your Waiting Room Still Waiting?: How to Create a Successful Private Practice."

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Topic: Ethics

Tags: boundaries | boundary issues | code of ethics | ethical | ethical and legal issues | ethical boundaries | ethical issue | ethical issues | ethical professional | Ethics | healthy boundaries | Ofer Zur | professional boundaries | rapport | therapeutic alliance

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1 Comment

Sunday, July 2, 2017 12:51:21 AM | posted by Margaret
A very interesting article. I think cultural issues are also very important. In the country where I live and work, a sure way to have a client discontinue therapy is to NOT acknowledge the client in settings outside the therapy room. Non-acceptance of a gift, or sometimes refusal of touch could be seen as distancing oneself from the client or being aloof from the client - the "I'm better than you" type of thing. Therapists therefore need to take cultural practices into consideration when dealing with clients and the overbearing risk management strategies of licensing boards and the legal process. Sometimes a hug can do more for a client than an hour of talking!