September 2008

In the July 2008 issue of the Avoiding Liability Bulletin, which was devoted to the topics of conflict and conflict of interest, I asked readers to ponder each of the following true or false questions and indicated that I would address them in a future issue of the Bulletin. My brief answers to these questions follow below. As I stated in the July Bulletin, the answer to each of these questions may vary from state to state, or perhaps, by profession. Additionally, I stated that reasonable minds may differ as to the correct or most appropriate answer. The answers that follow reflect my views only. They should not be taken as legal advice in any particular situation that may be encountered by a therapist or counselor. In such situations, therapists or counselors will want to consult with a colleague and/or with an attorney. State law or regulation may impact upon some answers, as will the ethical standards that may be applicable in a particular case.

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.

FALSE –Conflicts do arise during the course of counseling or therapy, and part of the clinical process involves dealing with and working through a variety of conflicts. While termination may be appropriate in some circumstances, not all conflicts need to be resolved by immediate termination. Even where termination is appropriate, the manner in which it is done can also result in problems for the therapist or counselor. Perhaps one or two sessions with the client will resolve the conflict or provide appropriate closure. Some conflicts may be of a minor or inconsequential nature, and others may be more serious. Even with respect to serious conflicts, immediate termination could in some cases lead to allegations of abandonment. Clinical and/or legal consultation would be wise if one is faced with a serious conflict. (I have previously written more on the issue of termination, which can be found in the Avoiding Liability Bulletin “Archives” on this website. The items are entitled “ Termination – Who Is the Patient” and “Termination of Treatment.”)

Question #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.

TRUE – Such an arrangement appears to be unlawful. Some states have laws that essentially prohibit the payment of any consideration as compensation or inducement for referring clients or patients to any person. Violation of such a law may constitute a crime. Such a mutual agreement to refer would seemingly mean that referrals would not be made based upon the particular needs of the patient, but rather, the financial needs or interests of the therapists or counselors involved. Referrals ought to be made after careful thought about what the needs of the patient are and not on the basis of some prior agreement, whether formalized in writing or the result of an informal arrangement, between the two practitioners.

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.

TRUE – If a client commits a crime against a therapist or counselor, the practitioner is not prohibited from reporting the crime and the identity of the actor. Generally, health care practitioners are permitted to report the crimes committed against them – whether to their person or their property. If the law were otherwise, health care practitioners could have crimes committed against them and be without recourse. Sometimes the crime is committed in the presence of the therapist or counselor, or there may be an admission (after the fact) by the patient or client, or there may have been a prior threat by the patient or client. The practitioner must be very careful, in situations like this, that he or she is using good judgment before making disclosures to the police regarding the suspect’s identity. Disclosing the identity upon mere suspicion is unwise. The “evidence” of the patient’s guilt must be substantial before a disclosure can be safely made. Additionally, the therapist must take care to limit the amount of information (relative to treatment issues) given to the police.


Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

Have Questions? click here, We’re happy to help!