Generally, there is no requirement that a therapist or counselor attend a celebration or other event involving the patient or the patient’s family. Therapists or counselors should thus feel free to respectfully decline an invitation to attend any such event, and can usually do so in a manner that is not insulting or hurtful to the patient. On the other hand, it is this writer’s view that attendance at a significant event in the patient’s life is generally permissible, lawful, and ethical – if handled appropriately. Some practitioners, because of their belief system and orientation, may want to attend. They may want to attend because of their long and meaningful professional relationship with a particular patient or in order to show respect for the family’s wishes, or for other appropriate reasons.

State laws and regulations, as well as applicable ethical standards, generally do not directly address these issues. If they do, therapists and counselors must of course abide by applicable requirements and standards. Generally, mere attendance at such an event would not constitute a dual relationship, since the therapist or counselor would be attending not as a friend, but as a caring and supportive professional. Thus, there is no secondary or “multiple” relationship. Moreover, if there is no reasonable likelihood of impairment of the practitioner’s judgment or no exploitation of the patient, the likelihood of an unethical dual relationship is minimal at best.

Attendance at an event or occurrence as mentioned above should generally be at the request of the patient or the patient’s family, and not as a result of the therapist or counselor’s request or the result of a unilateral and unannounced decision of the therapist or counselor. A therapist or counselor may be asked by relatives of a deceased patient to attend the funeral or burial of a deceased patient. Under many circumstances, attendance can occur without much ado and without any problem for the practitioner. This of course assumes that the practitioner acts discreetly and that he or she quietly “gets lost in the crowd.” Under some circumstances, survivors of the deceased patient might be offended if the therapist or counselor did not attend the funeral service. It is important to remember, however, that the duty of confidentiality generally survives the death of the patient.

Thus, if attending an event, one must be prepared to not only protect against the disclosure of confidential information or communications, but if possible, to protect against the disclosure of the fact of the relationship. This is especially important in situations where the fact of the therapist-patient relationship is not disclosed to the attendees by the patient or the patient’s family. The possibility of recognition by others should be discussed in advance with the patient or the patient’s family, especially where there is a desire to keep the therapist’s relationship with the patient from others.

When I have been asked whether or not it was permissible for a therapist to attend a patient’s wedding, I have facetiously asked one question and seriously asked two others. I have facetiously asked (to make a point) whether the therapist is going to climb up on the table when drunk or near drunk and dance with great fanfare. I have seriously asked whether the patient will be disclosing the identity of the therapist or whether the patient wants the therapist’s true relationship to the patient to be suppressed. What will the therapist say or be expected to say when someone at the wedding asks -  “how do you know the bride and groom?” The answer cannot be  - “I can’t tell you because of the nature of the work I do!”

The other serious question I have asked is whether the therapist will get a gift for the patient, and if so, how much will be spent? If no gift is to be given, how will the therapist explain the lack of a gift to the patient – who may have been paying the therapist $125 week for the past three years? These questions make the therapist think carefully about the decisions that need to be made. Depending upon circumstances, a wedding gift for the patient might be permissible and ethical. It may be preferable for some therapists, however, to find an appropriate, respectful, and straightforward way to explain the reason why no gift will be given. This becomes easier when only the ceremony is attended or the therapist declines the invitation entirely.

Whether or not therapists or counselors could get in trouble for attending such events is yet another question. The short answer is “yes.” The potential for trouble, even if attendance is lawful and ethical, always lurks. Unanticipated events can occur, so therapists and counselors must carefully examine the pros and cons of each situation. Therapists who desire to minimize risk are likely to assiduously avoid attending weddings, funerals, or other events involving the patient, former patient or deceased patient. While this may be a reasonable approach for many, exceptions do on occasion occur.

When an exception does occur, the outcome depends upon how the situation is handled. With respect to a wedding, for example, the practitioner might be wise attending only the wedding ceremony and staying away from the dinner/dance. This might be done, for instance, if the patient did not want anyone to know that he or she was in therapy. Of course, in smaller communities and even in larger urban areas it is possible that someone in attendance may recognize the therapist and put two and two together or make certain assumptions. Thus, a problem or uncomfortable situation could arise, even for the careful therapist. On the other hand, simply because someone may recognize a therapist at some quasi-public event should not be an absolute or immutable bar to attendance.

… What exactly are dual or multiple relationships? Are all dual relationships prohibited?  If therapists or counselors terminate the therapeutic relationship and then begin a separate business or other relationship, do they still have vulnerability in a licensing board disciplinary action and liability in a civil lawsuit for money damages? These are but a few of the questions that arise in this sometime murky area of practice. Of course, the easy solution is to say that you will never have any other relationship with your patient or former patient other than that of therapist and patient or ex-patient. But that reality is not always possible to achieve nor is it always necessary to achieve. 

State law, regulation, or ethical standards will often contain a definition of a  “dual relationship” or “multiple relationship” or will otherwise address this issue. It is critically important to fully understand what is prohibited and what is permissible. Of course, it is not always easy to draw that fine line. Each profession may view this issue somewhat differently – so great care must be taken and careful thought must occur before venturing into a relationship with a patient or former patient other than the professional treatment relationship.

Some definitions of dual or multiple relationships make clear that not all dual relationships are unethical. I believe that this is a very important aspect of this ethical principle. While the professions must respect and protect the integrity of the therapist-patient relationship, in my view they should not view or treat all patients or clients, including former patients or clients, as so disordered or unstable as to prevent all concurrent or future human contact. In that regard, the ethical standards for the professions of marriage and family therapy, psychology, counseling and social work all recognize, in some manner, that not all dual relationships are unethical.

For instance, the ethical standards of the California Association of Marriage and Family Therapists (CAMFT) state that a dual relationship occurs when a therapist and his/her patient engage in a separate and distinct relationship either simultaneously with the therapeutic relationship, or during a reasonable period of time following the termination of the therapeutic relationship. These standards specifically state, however, that not all dual relationships are unethical, and specifically recognize that some dual relationships cannot be avoided.

The ethical standards of the American Association for Marriage and Family Therapy do not specifically state that not all dual relationships are unethical or unavoidable, but one may infer that such is the case. The standards state that marriage and family therapists make every effort to avoid conditions and multiple relationships with clients that could impair professional judgment or increase the risk of exploitation. Implicit in such a statement is the possibility that some multiple relationships may not reasonably be expected to impair professional judgment or increase the risk of exploitation.

This kind of latitude may be necessary, for instance, in rural areas (but not necessarily limited to such areas). Suppose that the therapist shops at the local grocer who is his/her patient and that no reasonable alternative exists. If one takes too narrow of a view of this topic, and if such kind of flexible language is not present in a profession’s standards, an over zealous licensing board might take the position that the therapist and patient were also in a business relationship – albeit minimal and “at arms length.” The board might allege that such relationship constituted an unethical dual relationship, especially after something unexpected occurs and with the benefit of hindsight.

NASW’s Code of Ethics recognizes that not all dual relationships are avoidable, and provides that when such an avoidable dual relationship occurs the social worker takes steps to protect clients and is responsible for setting clear, appropriate, and culturally sensitive boundaries. Thus it appears that if this is done, the unavoidable dual relationship is permissible – not unethical. The American Psychological Association’s (APA) Code of Ethics makes clear that multiple relationships that would not reasonably be expected to cause impairment of the psychologist’s objectivity, competence or effectiveness in performing his or her functions as a psychologist or risk exploitation or harm to the patient are not unethical.

The APA ethical standards state that a multiple relationship occurs when a psychologist is in a professional role with a person and at the same time is in another role with the same person or at the same time is in a relationship with a person closely associated with or related to the person with whom the psychologist has the professional relationship. The standards additionally state that a multiple relationship also occurs when a psychologist is in a professional role with a person and promises to enter into another relationship in the future with the person or a person closely associated with or related to the person.

The American Counseling Association’s (ACA) Standards of Practice provide that counselors must make every effort to avoid dual relationships with clients that could impair their professional judgment or increase the risk of harm to clients. One can therefore infer, as with AAMFT’s Code, that not all dual relationships are unethical. In fact, the ACA standards specifically recognize that dual relationships sometimes cannot be avoided. As with other standards that recognize that dual relationships cannot always be avoided, the standards require that counselors must take appropriate steps to make sure that judgment is not impaired and that no exploitation occurs when the counselor is in such a dual relationship.

With respect to former patients, one must again look to the specific ethical standards for the various professions. From a general perspective, therapists and counselors are in a much “cleaner” position if a subsequent non-therapeutic relationship (other than a sexual relationship) develops after there has been a good faith and appropriate termination of the therapeutic relationship. In other words, the termination was in the best interests of the patient and was for clinically appropriate reasons – that is, it was not made for the express purpose of engaging in the subsequent relationship. The termination process should be well documented in the clinical records. Another key element is the amount of time elapsed between the end of the therapist-patient relationship and the commencement of the new relationship.

Even if the subsequent relationship followed a proper termination and the passage of a reasonable amount of time, the therapist or counselor remains vulnerable. Patients can always complain to a licensing board and can easily bring a civil suit for money damages. The patient might, for instance, successfully argue that the therapist or counselor selfishly foreclosed the possibility of future care because of the subsequent non-professional relationship. This is especially true with respect to a subsequent sexual relationship, since some ethical standards make clear that therapists don’t treat someone with whom they have had a prior sexual relationship.

While some ethical standards have a two-year waiting or cooling off period with respect to sexual intimacy between patient and therapist, the therapist might still encounter difficulties if a sexual relationship develops beyond the two-year period. While a successful defense may be mounted, why be put in that position. As I have stated (my rule!) many times in workshops addressing this issue, therapists and counselors can have sexual relationships with everyone in the world except patients, ex-patients, and minors. Isn’t that enough? Why take a risk with respect to ex-patients? In reality, the risk is significant. This is because it is rare that the termination is found to in all respects be clinically appropriate. Most of the time the termination comes after there has been some discussion of a romantic relationship or “feelings” for each other.

Many therapists and counselors treat more than one member of a family, either concurrently or consecutively. This occurs most commonly when a therapist or counselor sees a husband and wife in couples therapy, when a parent and child are seen conjointly and/or separately, when two or more children of the same family are seen together or separately, and in other situations too numerous to mention.

When treating multiple members of a family, the practitioner must be careful to avoid conflicts. Conflicts can sabotage the treatment and lead to the need to terminate with one or more of the participants (or all), and can generate a complaint to the licensing board or result in a lawsuit. While it is true that sometimes conflicts cannot be avoided, even by the exercise of sound clinical judgment, it is also true that sometimes conflicts can be avoided or at least the chances of them occurring can be minimized. Additionally, even when a conflict occurs, the resulting consequences for the therapist might be reduced by prudent and careful action by the practitioner.  

So, what are some of the things that a therapist or counselor should think about when working with multiple members of a family to try to control his or her exposure or vulnerability? A few basic considerations are discussed below. This discussion is not intended to be exhaustive, but is illustrative of what might be addressed in order to minimize adverse occurrences and results. Questions are raised in order to demonstrate the breadth of issues that can arise.

First, it is critical to be clear, during the course of treatment, as to who is the patient. While it may seem obvious, many of my consultations over the years have indicated otherwise. Often practitioners have treated more than one member of the family and then they have trouble telling me (I always ask) exactly who the patient is – perhaps the therapist has seen an adolescent and has also seen one or both parents in conjunction with the treatment of the minor. Did the parents consider themselves to be “the patient” or did they consider that the family was the patient? Did the therapist or counselor address this issue with the parents and/or the adolescent? What did each party believe? 

Generally, the patient is the holder of the privilege. So, when more than one person is being seen, as with a family, who is the holder of the privilege – the parents? The child? The family? What if the therapist receives a subpoena for the records of the father when he has been seen collaterally to the treatment of his child? Is the father covered by the psychotherapist privilege? These are but a few of the questions that may arise. Central to determining a proper response to any of these or other questions - the therapist or counselor must be aware of who the patient is, and must be sure that the treatment records are consistent with his/her later assertions regarding the nature of the relationship with the parties.

Record keeping becomes even more important than usual when the nature of a relationship changes. For instance, when conjoint therapy ends because one member of the couple drops out of therapy, the records should clearly reflect what happened and what is the nature of any continuing relationship. For instance, will the therapist now treat the remaining patient in individual therapy? What if the one who drops out of conjoint therapy has a change of mind and now wants to continue with the therapy? If conjoint therapy had been properly terminated and a new and different relationship has begun, it may be difficult to commence conjoint therapy again. If the situation was ambiguous because the nature of the relationship had not been addressed, this might later result in a messy situation if things “blow up “ between the parties. And, if things do blow up, will the practitioner’s records bring clarity to the situation or will they create confusion and problems for the practitioner? 

Therapists and counselors must remember that obtaining consultation is extremely important. Should there ever be litigation or an inquiry into the practitioner’s behavior, it would be helpful if the practitioner had support for his or her clinical judgment when agreeing to see multiple members of a family individually. The very act of seeking consultation is itself a sign of a careful and prudent practitioner, one could argue. Reasonable minds can differ when considering questions such as whether or not it is clinically appropriate, under certain circumstances, to see multiple members of the same family in therapy. Likewise, reasonable minds can differ when considering actions that the practitioner should take when confronted with a conflict. Consultation may help to support the decision of the practitioner should questions be raised.

The issue of termination must also be considered when discussing the topic of avoiding conflicts (or minimizing their effects) when treating multiple members of a family individually. Termination may need to be considered, for example, when a conflict does arise, whether unexpectedly and unlikely, or when the conflict should have been recognized or anticipated by the practitioner. In either event, the practitioner will want to minimize the negative effects of the conflict. Difficult decisions need to be made, some of which deal with termination. Would it be best to terminate with all members of the family affected by the conflict? How does the therapist or counselor decide which member of the family to terminate?  

The issue of termination also is involved in situations where, for example, one member of the family or the couple in treatment prematurely and unilaterally terminates. How should the practitioner deal with this situation? Should a letter be sent confirming the unilateral termination? Should the practitioner call the patient and invite him or her back into therapy? Before agreeing to see the remaining member or members of the family, must the therapist or counselor have a discussion about the end of one kind of relationship and the beginning of another?

With respect to confidentiality, special considerations are necessary. For example, when treating a couple, will there be an established “no secrets” policy? If so, will the couple be informed of this in a written document? Will each person understand that access to their records (by each of them) and authorization to release their records to a third party will require the approval of both parties? Does state law support such an approach? If these issues are not considered and discussed, the possibility of a conflict may arise.  

A different aspect of confidentiality is involved in another scenario. Suppose that the practitioner is seeing a mother and a daughter, perhaps separately. Something may occur that leads the daughter to think that the practitioner may have leaked information to the mother. Perhaps the mother, quite independently, confronted the daughter about suspected drug use, something that the daughter is talking with the therapist about. This kind of a scenario, and others, may provoke confrontations. Thus, practitioners must be careful to be clear with patients regarding how zealously they take their duty of confidentiality.

The word “conflict” is used in ethical standards with respect to marriage and family therapists who treat multiple members of a family. Applicable ethical standards (e.g., from the California Association of Marriage and Family Therapists - CAMFT) provide that when treating a family unit, an MFT shall carefully consider the potential conflict that may arise between the family unit and each individual. For example, when an MFT or other practitioner treats a couple, thought must be given to the potential conflict that may arise between the couple (as the identified patient) and the husband and wife (or the domestic partners) in their individual capacities. This same standard instructs the MFT to clarify, at the commencement of therapy, which person or persons are clients and the nature of the relationship(s) the therapist will have with each person involved in the treatment. The American Counseling Association’s (ACA) Code of Ethics contains a similar provision.

If the clarifications mentioned above are not made, an example of a conflict that could arise would be where one of the participants seeks to obtain a copy of the records from the practitioner, without the approval of the other partner involved in the couple work. It would be better for everyone involved if the practitioner had first explained that the couple is the “patient,” and that each of them in their individual capacities do not control the records, or that a signed authorization to release the couple’s records to a third party would require the signature of both participants. I have previously written about the use of a “no secrets” policy in order to minimize conflicts when treating multiple members of a family. CAMFT is soon to add a provision to its Ethical Standards that essentially states that marriage and family therapists are to take reasonable care to avoid or minimize potential conflicts when providing concurrent or sequential individual, couple, family, and group treatment.

A different kind of “conflict” that appears in some ethical standards deals with the possibility that a counselor or therapist may be faced with a conflict between an ethical standard and a state law or regulation. A provision of the Code of Ethics for the American Counseling Association (Section H.1.b.) provides that “if ethical responsibilities conflict with law, regulations, or other governing legal authority, counselors make known their commitment to the ACA Code of Ethics and take steps to resolve the conflict.” If the conflict cannot be resolved, the ACA Code gives permission to the counselor to adhere to the requirements of law, regulations, or other governing legal authority. The ACA Code of Ethics also contains a provision (Section H.2.e.) addressing conflicts that may arise within an organization – e.g., where the requirements of the organization conflict with the ACA Code of Ethics. In such cases, the Code provides that counselors are expected to specify the nature of the conflicts, express their commitment to the Code, and when possible, work toward change in the organization to allow full adherence to the Code.

An aspect of practice where the concept of conflict of interest may arise is in the area of self- disclosure. It is generally recognized that health care practitioners may self-disclose in order to enhance the doctor-patient or psychotherapist-patient relationship and thereby advance treatment outcomes. However, if only the needs of the therapist or counselor are being met, and the patient is “taking care of” the therapist or counselor, a conflict of interest arises that often leads to a deterioration of the therapeutic relationship and client assertions of unprofessional conduct. Similar issues are raised and similar considerations are necessary when assessing the appropriateness of accepting a gift (or gifts) from the client or giving one or more gifts to a client.

With respect to a practitioner’s role in the legal system and the duty to remain objective and truthful, the CAMFT Ethical Standards caution MFTs to avoid, wherever possible, performing conflicting roles in legal proceedings and to disclose any potential conflicts to prospective clients, to the courts, or to others as appropriate. Most notably, this standard applies to the situation where a therapist may be acting as a treatment provider to one or more of the parties, and at a later time is called upon to act as an independent custody evaluator. This potential conflict must be assiduously avoided. The ACA Code of Ethics provides that “counselors do not evaluate individuals for forensic purposes they currently counsel or individuals they have counseled in the past.” Additionally, the ACA Code provides that “counselors do not accept as counseling clients individuals they are evaluating or individuals they have evaluated in the past for forensic purposes.”

The American Psychological Association’s Code of Ethics, under that portion of the Code dealing with “Human Relations,” contains a section entitled “Conflict of Interest.” Section 3.06 provides that “psychologists refrain from taking on a professional role when personal, scientific, professional, legal, financial, or other interests or relationships could reasonably be expected to (1) impair their objectivity, competence, or effectiveness in performing their functions as psychologists or (2) expose the person or organization with whom the professional relationship exists to harm or exploitation.”

Following are five true or false questions that in some way involve conflict or conflict of interest. The answer to each of these questions may vary from state to state, or perhaps, by profession. Additionally, reasonable minds may differ as to the correct or most appropriate answer. Take some time to ponder each of these questions. I will address them in some detail in a future issue of the Avoiding Liability Bulletin.

1. It is not unlawful for a therapist or counselor to let his or her clients know that his or her recently published book about parenting is available for purchase from the office manager.

2. Once a conflict arises between a therapist or counselor and the client, immediate termination is necessary in order to avoid liability.

3. An agreement between two counselors or therapists to refer clients to each other whenever either is faced with a conflict may itself present a conflict.

4. If a client reveals that he backed his car into the counselor or therapist’s car in the office parking lot and caused significant damage, the counselor or therapist may be required to report this information to a governmental entity and reveal the name of the patient.

5. If a counselor or therapist is convinced by the circumstances that a client is responsible for burglarizing the counselor or therapist’s office and taking a patient file, it would be permissible for the counselor or therapist to report the burglary to the police and to reveal the identity of the suspected burglar.

Question #1 - It is not unlawful for a therapist or counselor to let his or her clients know that his or her recently published book about parenting is available for purchase from the office manager. 

TRUE - Therapists and counselors sometimes sell books, tapes, or other products that are related to their practices. When doing so, they must be careful to avoid exploitation (or the appearance thereof) or any feeling on the part of the client that there is an expectation of purchase. The sale or promotion of products or services, other than the treatment that the client came for, should be done thoughtfully and selectively. If care is not taken, it may appear that the counselor or therapist is furthering his or her own financial interests at the expense of the client. I have sometimes counseled therapists, who had products to sell that were expected to have wide appeal, to sell their products to the general public in some other locale or by some other means than at and through their private practices.

Question #2 - Once a conflict arises between a therapist or counselor and the client, immediate termination is necessary in order to avoid liability.

Question #4 – If a client reveals that he backed his car into the counselor or therapist’s car in the office parking lot and caused significant damage, the counselor or therapist may be required to report this information  to a governmental entity and reveal the name of the patient.

TRUE – In most states, there are laws that require a motorist to file a report with the Department of Motor Vehicles, or some other-named governmental entity, when the motorist is involved in a vehicular accident. These state laws will vary in detail, so careful analysis is necessary. Does the law apply to owners of vehicles or only to drivers? Does the accident have to occur on a highway or street in order to be reportable? Is there an exception for accidents occurring on private property? Must there be a personal injury or is vehicle damage over a certain amount enough to trigger a report? As an example, California law requires the driver of a motor vehicle to file a report within 10 days following a motor vehicle accident (including some which occur “off-highway”) that has resulted in damage to the property of any person in excess of $750. If the facts in the question took place in California, then luckily for the therapist or counselor, a report would not have to be filed by the practitioner because he or she was not the driver of the motor vehicle. If the incident took place elsewhere, the therapist or counselor could be placed in the awkward position, depending upon the specific circumstances, of being required to report.

Question #5 – If a counselor or therapist is convinced by the circumstances that a client is responsible for burglarizing the counselor or therapist’s office and taking a patient file, it would be permissible for the counselor or therapist to report the burglary to the police and to reveal the identity of the suspected burglar.

… The issues that are discussed in this piece are not new, nor are they limited to occurring in the current economic condition existing in the country. However, a tough economy creates pressures on therapists, counselors and clients alike, and as a result, mistakes in judgment (and worse) may be more likely during such times. Mistakes made by patients or clients are usually not actionable by the therapist or counselor, but mistakes made by practitioners are sometimes detrimental to their professional and economic welfare. I know that my words below may provoke some into thinking that I am perhaps too rigid, too lacking in empathy, too concerned about liability, and perhaps not concerned enough for the general welfare of the client.

Frankly, my concern in this article is for the practitioner. I write this from the perspective, or if you will, the bias, of wanting to protect the therapist or counselor from claims or lawsuits resulting in civil liability and from regulatory board disciplinary action. I have in the past assisted many practitioners who have gotten themselves into some difficulty, and I have been quite effective (if I may say so!) in helping therapists to develop defenses and to argue that they have done nothing wrong or nothing that is actionable. Those interventions were after the fact. I now write from the perspective of prevention.

I have often stated that the best way for a mental health practitioner to help a client is to provide competent and ethical treatment. That is what the client is paying for and what he or she expects. Beyond that, therapists and counselors must be careful how they interact with their clients. Sometimes, simple acts of goodwill may come back to “bite” the therapist or counselor. I remember one case where a therapist had found out from a patient who was a human resources executive for a major corporation that the corporation was embarking upon a large hiring initiative. When the therapist was treating a different patient who happened to mention that she was looking for employment, the therapist told her that she had heard that the XYZ Corporation was now hiring.

As it turned out, the human resources executive ultimately interviewed this woman (the other patient), and when she asked her how she found out that the XYZ Corporation was hiring, the applicant said – “my therapist told me about it.” In her next session, the HR executive was very upset with her therapist. “What are you doing telling other patients of yours about information that I share with you in my private and confidential sessions. I don’t need you doing advertising for me or for the XYZ Corporation! I’m upset with you. I don’t know if I can trust you.” The therapist consulted with me about whether or not this constituted a breach of confidentiality. My conclusion, based upon all of the facts and circumstances, was probably not. But it became a problem for the therapist nevertheless.

What if a client tells his or her therapist or counselor that he or she has been terminated from employment and/or evicted from a rented house? In these tough economic times, this can easily happen – and has happened. How should the practitioner help, if at all? If the practitioner coincidentally has a studio apartment to rent at a much more favorable rate than what the client had been paying for the house, would it be okay to rent the apartment to the client? If the client is unable to pay the practitioner’s fee, would it be okay to allow the client to do some work for the practitioner that was unconnected to the practitioner’s private practice in lieu of paying the $125 per hour fee? These few questions are just some of the questions that may arise. They involve barter and dual relationship issues.

Before directly addressing these questions, let me state my general impression of these possible relationships. I don’t like them! There is too much of a chance that something will go wrong and negatively affect the practitioner-client relationship and the work being done. What if the work performed by the client is sub par? How do you fire or reprimand your client? What if the client doesn’t pay the rent in a timely manner or at all? How do you evict your client  - perhaps to the street? What if the client complains about the rented property being sub par or in violation of housing codes? How much work (how many hours) is the client going to have to perform in order to equal the $125 charged by the practitioner for a fifty minute session? If the client were to miss a session, would he or she have to work that hour off too? How careful (or lucky) would the practitioner have to be in order to avoid a claim of exploitation (e.g., you needed a renter or an employee and you saw an easy target – you used me to your advantage)?

A dual relationship typically occurs when a therapist and his /her patient engage in a separate and distinct relationship either simultaneously with the therapeutic relationship, or during a reasonable period of time following the termination of the therapeutic relationship. The essence of a dual relationship violation is typically the presence of a reasonable likelihood of impairment of the therapist’s judgment or the exploitation of the patient. Therapists and counselors are expected to be aware of their influential position with respect to clients, and are expected to avoid exploiting the trust or the dependency of clients. To enter into a separate landlord-tenant relationship with a patient is clearly a dual relationship, as is entering into an employer-employee relationship concurrent with the therapeutic relationship. Practitioners must look closely at the written ethical standards (Code of Ethics) for their respective professions, since some standards may specifically prohibit certain dual relationships (e.g., hiring a patient or engaging in a business relationship with a patient).

While not all dual relationships are unethical, it seems to me that these would likely be found unethical. As indicated above, they may be specifically prohibited. The potential for the ongoing therapeutic relationship to be negatively impacted seems great in either example. The likelihood that the patient could prove exploitation by the therapist or counselor also seems significant. Of course, if everything worked out well – that is, if the client was relatively well adjusted and healthy, if the work was performed well, if the practitioner took great pains to be eminently fair, and if no conflict arose during any of these dual relationships, the practitioner might get lucky. If no complaint or lawsuit is filed because everything worked out, the practitioner comes out unscathed. But you might not get lucky. And if you don’t, you face significant difficulties in your professional life. All it takes for that to happen is for something to go wrong with any of the relationships. The likelihood of that happening seems significant.

Some comment on the issue of barter is warranted. Most professional associations do not prohibit barter nor do they make barter, in and of itself, unethical. If a practitioner were to engage in barter, it would be very important to first carefully review the ethical standards of his or her profession to see what limitations, caveats, or requirements may be present. Reference to state law and/or regulation is also necessary. In the examples described above, however, it seems to me that the central issue is not whether or not the barter arrangement is fair – but rather, the fact that a dual relationship exists, and that such dual relationship may well be unethical on its face. Additionally, a barter arrangement that involves the performance of personal services is more likely to wind up distorting the professional relationship than an arrangement involving the exchange of goods or personal property only.  

Forgetting about legalities and the questions asked in the prior paragraph, let me first make a few comments about how I feel about gifts exchanged between patients and therapists. I start with the position that generally (there are exceptions), gifts should not be accepted nor should they be given. Without careful thought and analysis, such activity can often lead to unexpected trouble for the unwary practitioner. Even where careful thought has occurred, trouble may bubble up unexpectedly. I lean in favor of this position because it forces the person I am speaking with to overcome my bias against gift giving or receiving by articulating why such activity, in a given instance, may fall within an exception to the general rule and may be both supportable and appropriate.

Much of my exposure to the issue of gifts has occurred when a therapist was in some degree of trouble because he or she received one or more gifts from a patient (or the patient has received one or more gifts from the therapist), and later the patient or someone in the patient’s family complains about some aspect of the gifting and may misinterpret its meaning or purpose. Often, there is more involved in the matter than a mere gift. Each case is different. Each question presented is different because everything depends upon the particular facts and circumstances involved – such as the issue, problem, or disorder the client/patient is being seen for, the nature of the relationship between therapist/counselor and patient/client, the theoretical orientation of the practitioner, and cultural factors.

Giving or receiving a gift, depending upon circumstances, may be lawful and ethical. It does not necessarily have to be avoided at all costs, unless there is a specific prohibition in state law, regulation, or a controlling ethical standard. But licensing boards and ethics committees, as well as any number of expert witnesses, often take the positions that there are problematic “boundary issues” connected with gifting and that gifting may be evidence of an improper dual relationship. Because of this perception, therapists and counselors would be wise, in my view, to generally avoid giving or receiving gifts if they want to maximize the avoidance of risk. If gifting does take place, the results of a complaint or lawsuit often depends upon the factors mentioned above, as well as such other factors as the nature and frequency of the gifting, the value and form of the gift, and whether other problematic conduct is occurring.

Too rigid an approach (as with the issues of touch and dual relationships) is stifling for the mental health professions and for the patients or clients they serve. But, sometimes, state agencies (e.g., licensing boards) are overly zealous, for any number of reasons, in their efforts to protect the public. Litigants (including state agencies) can easily hire expert witnesses to testify to just about anything. Because of possible injustice, or because of issues involving the costs and expenses of litigating, or just recognizing how the system works, therapists and counselors must be cautious.

Ponder this scenario: A wealthy deceased patient leaves her former therapist a $10,000 bequest in her will in appreciation for her work with the patient and other family members over a long period of time. The gift is first disclosed to the therapist two months after the patient’s death and one year after the termination of therapy. The deceased patient’s spouse is supportive of the bequest and is the one who tells the therapist about it. Is it okay for the therapist to accept the bequest or must (should) it be returned to the estate? What would your lawyer say? What would your professional association say? What would be the position of your licensing board?

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