… One aspect of termination and referral that I have not previously written about involves the issue of follow-through after a referral is made and communicated to the patient. Referrals are usually made after the therapist or counselor decides to terminate with the patient, which may occur for a variety of reasons. Perhaps the practitioner has determined that the patient is not sufficiently benefiting from the treatment and would be better served by another practitioner – whether of the same licensure or otherwise. Therapists or counselors may terminate because the patient is no longer able to pay the previously agreed upon fee or because a conflict may have arisen requiring, in the judgment of the practitioner, a termination. Additionally, a termination may occur because the practitioner becomes ill or is otherwise incapacitated.  It is of course possible that the patient or client will unilaterally terminate treatment for one or more reasons.

Whatever the reason for termination may be, the therapist or counselor is likely to be under the ethical and/or legal duty to refer the patient or client elsewhere – whether to an individual licensed practitioner, or to a governmental agency, such as a county mental health facility, or to a nonprofit organization providing counseling or psychotherapy services. Once the referral is given and the termination occurs, there would seem to be nothing further for the therapist or counselor to do. In fact, many practitioners believe that they owe no further duty to the patient. Therapists and counselors should be sure to carefully and fully document the entire termination process. Doing so could prove critical. 

Suppose that the patient is severely depressed and that the referring professional is concerned about self-harm to the patient. Assume further that a referral was made to a psychiatrist because the therapist or counselor determined that the patient was not sufficiently benefiting from the treatment and that the problem was worsening. Would it be sufficient for the referring practitioner to have no further contact with the patient after making the referral in the last session? Might a court determine that the therapist in this case was under a duty to make a reasonable attempt to follow-through with the patient (or the psychiatrist) to see whether the new relationship has begun? Might a court determine that the termination was not handled appropriately and that the therapist or counselor has liability for the harm that came to the patient after a botched termination and referral?

These questions are not easy to answer, and much depends (as always!) on the particular facts and circumstances, and the law in the state in which such a situation occurs. The issues of termination and referral may be covered, to some extent, in state statute or regulation. More likely, common law principles involving the issues of “duty” and “negligence” will be applied to particular cases. Generally, the duty of a therapist or counselor begins when a contract for professional services is entered into – whether in writing or orally. Likewise, I believe that the duty to the patient should end concurrently with the termination of the therapeutic relationship. This of course assumes that the termination is made in a clinically appropriate manner. It is my view that a proper termination process requires the therapist or counselor to carefully consider whether a referral is necessary or appropriate, and if so, how will the actual referral be handled.

In some cases, such as the one described above, it might be appropriate for the therapist to call or otherwise contact the terminated patient, or ask the patient to communicate with the therapist, for the purpose of assuring that the patient is following through on needed treatment. In some cases, the therapist or counselor may be compelled to take other action (e.g., arrange for an involuntary commitment) when it is determined that the patient is not following through with the referral. Perhaps the post-referral contact reveals something to the practitioner that indicates a worsening of the patient’s mental or emotional condition. Unless state law or regulation dictates or specifies when the duty (to provide competent care) to the patient ends, the therapist or counselor may not be able to avoid taking some form of action after a referral is made.

... A reader has asked me to write about a narrow aspect of termination. More precisely, the reader asks about private practice clinicians and their liability for clients who “stop coming” to therapy. Does the therapist continue to be liable for suicidal behavior and safety of the client? Does the clinician need to officially "close the file” and send notification to the client? These are the questions asked.

While I have previously written about various aspects of termination in the Avoiding Liability Bulletin (see the Archives), I have not directly addressed this narrow but important aspect of termination.

Termination of therapy or counseling is a critical juncture of the clinician-client relationship, much like the initiation of the professional relationship. Practitioners should always be aware of the status of their relationships with clients. Termination initiated by the practitioner can occur for a variety of appropriate reasons. I have previously written about the usefulness of including something about termination in the disclosure statement (whatever its title) that the practitioner gives to the client prior to the start of treatment. Clients have the right to terminate at any time and for any reason. When a patient terminates with the therapist or counselor, the manner of termination and the circumstances extant will often not require the practitioner to do anything further to confirm or acknowledge the termination, other than to document the termination (and the reasons) in the patient’s records.

At other times, the fact of termination may be more questionable or ambiguous. In such situations, the practitioner needs to take steps to clarify the status of the relationship and the intent of the client. If the status of the relationship is not clear, then there remains the possibility that the client may justifiably believe that he or she is still in a treatment relationship with the practitioner and that the practitioner continues to owe legal and ethical duties to the client. Were there to be a dispute as to whether or not the therapeutic relationship had ended, an ambiguity or lack of clarity will often be resolved against the therapist or counselor by a licensing board or by a court or jury.

If clients “stop coming” to therapy, that suggests to me that there was a unilateral and perhaps un-communicated termination by the client in the form of successive missed sessions. It is dangerous to allow such situations to occur. The practitioner is liable for his or her professional negligence (acts of omission or commission) causing harm to the client. When the client fails to attend a session (or more) without a communication or indication that there is a desire to terminate the relationship, the liability of the practitioner is similar to the liability the practitioner has for actions of the client occurring between sessions. The therapist should promptly clarify with the client, or make a reasonable attempt to clarify, whether or not the client is unilaterally terminating the relationship, and if so, why. The failure to take such action, and to do so promptly, can result in liability for events that occur following one or more of the missed sessions.

When such clarity is sought, the therapist or counselor will be better able to discern what action may be warranted. If the patient informs the therapist of the intent to end therapy, the therapist may want to let the patient know that one or more termination sessions are appropriate and that there will be no charge for these sessions. The therapist will usually want to make one or more referrals and will sometimes want to document the fact and manner of termination, and the fact that referrals were made, in a carefully drafted letter. All actions and conversations during the course of seeking clarity on the status of the relationship should be documented in the records. If the client is not terminating the relationship, then the therapist or counselor should try to re-establish the treatment regimen. It may be necessary for the practitioner to terminate the professional relationship where the client is ambiguous or silent about the relationship.

The attempted suicide or other self harm to a client, or a client’s physical violence against others, taking place after one or more missed sessions, may, depending upon the circumstances involved, result in liability for the therapist. The missed session could take place at a time when the therapist knew, or reasonably should have known, that the patient’s sudden and unannounced “no show” was a signal that the patient or others may be in danger. While each case presents different considerations, an unexplained missed session at a time during the course of treatment where the therapist already has concerns about the client’s safety, should be a signal that the therapist needs to promptly take some action – rather than to do nothing but wait to see if the client shows for the next session!