AVOIDING LIABILITY BLOG

Dual Relationships

May 2013

… Suppose a therapist or counselor allows the payment of a patient’s bill to be either fully or partially deferred at the request of the patient who is experiencing financial difficulties. Suppose further that the patient’s problems are serious and that the practitioner feels an ethical obligation to continue to treat the patient. Because of the length and frequency of the treatment, and because of the regular and customary fee of the practitioner, the amount owed by the patient soon spirals above $15,000. Later, when therapy ends, the patient refuses to pay the monies owed. What vulnerability, if any, does the therapist or counselor have? If the practitioner files a lawsuit against the patient to recover the monies owed, could he or she lose? Did the therapist unwittingly allow a dual relationship to occur – that is, did the therapist allow a debtor-creditor relationship to be established?

I remember reading about one trial court decision involving a therapist who sued the patient for a large amount of money owed for past sessions. The court ruled that the therapist, by allowing the patient to be put in a position where he was now in a debtor-creditor relationship with his therapist, waived his right to the recovery of any money. The lesson to be learned from this non-binding case is that therapists should think about either referring the patient to a low or no cost counseling entity, whether private or public, or perhaps continue to treat the patient for a while longer on a pro bono basis. While there may be some cases where the circumstances may warrant the unpaid bill to increase over some period of time, this can be a dangerous practice.

One area of vulnerability for the practitioner might be that it can be claimed that the therapist engaged in exploitive behavior toward the patient by allowing the unpaid bill to mushroom. It can also be alleged that such conduct created a different and distinct relationship between the therapist and the patient – that is, a debtor-creditor relationship. I remember a consultation where a therapist asked me if I knew the name of a good collections attorney. He was going to sue the former patient for monies owed. I asked – “How much does the patient owe you?” He replied, “$30,000.” I replied – “I don’t know the name of a good collections attorney, but I think you may need the name of a good malpractice defense attorney.”

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"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.

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