AVOIDING LIABILITY BLOG

Helping the Client in Tough Economic Times?

April 2009

… 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.

What should the practitioner do in order to help the client who comes upon tough economic times? First and foremost, and as mentioned above, provide competent and ethical services. That is what the client came for, and that is what should be delivered. Secondly, the practitioner could lower his or her fees or suspend them for a while. Professionals of all kinds are expected to provide some amount of pro bono services to needy clients. If this is done, the practitioner needs to be clear with the client as to the duration of the reduced or waived fee. Documentation is of course important for everyone’s protection. Additionally, the practitioner should be in a position to make referrals to relevant social service organizations or governmental entities that might be able to help with temporary shelter, work, benefits, or other support.

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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