AVOIDING LIABILITY BLOG

Hypnosis/Hypnotherapy

January 2008 

… Suppose that a counselor or therapist is treating a woman who was the victim of a rape. Assume further that the practitioner is experienced and competent in the use of hypnosis or hypnotherapy (and is allowed by state law to utilize hypnosis in his or her practice) and has advertised that fact. After the client/patient tells the practitioner in some detail about the rape, but is unable to recall some important aspects of the vicious crime, she asks the practitioner to use hypnosis with her in order to assist in her recollection of some of the aspects of the rape. The practitioner believes that such recollection, in the long run, will be helpful to the treatment of the client/patient. Is the therapist or counselor allowed to do this? Are there any potential problems that must first be considered and addressed?

The answers to these questions may not be easy to find – and they are likely dependent upon state law. In one state, for example, the treating therapist would be allowed to hypnotize the patient in order to help her recollect the details of the rape that she cannot recall. However, the therapist is first required to follow procedures set out in law. Failure to comply with these procedures would jeopardize a later criminal prosecution of the alleged rapist. In fact, failure to follow the procedures set out in the law would mean that the victim of the rape would not be allowed to testify in the criminal prosecution about the details of the rape that she did remember prior to any hypnosis being used! This would likely mean that a conviction would, at a minimum, be very difficult.

Even if the procedures are followed, this particular state law (and I suspect other states have similar laws) makes clear that the witness is only allowed to testify about those matters that the witness recalled prior to the hypnosis. In other words, even when the procedures are followed, the witness (victim) is not allowed to testify about the memories recovered as a result of the hypnosis. Thus, the purpose of the specified procedures is to preserve the right of the witness to testify to those matters that she remembered prior to the use of hypnosis by showing that there was no contamination by the hypnosis.

The state law referred to requires that the substance of the pre-hypnotic memory be preserved in written, audiotape, or videotape form prior to the hypnosis. It also requires that the hypnosis is conducted in accordance with the following procedures: a) a written record is made prior to hypnosis documenting the subject’s description of the event, and information which is provided to the hypnotist concerning the subject matter of the hypnosis; b) the subject gives informed consent to the hypnosis; c) the hypnosis session, including the pre- and post-hypnosis interviews, is videotaped recorded for subsequent review; and, d) the hypnosis is performed by a licensed medical doctor, psychologist, licensed clinical social worker, or a licensed marriage and family therapist experienced in the use of hypnosis and independent of and not in the presence of law enforcement, the prosecution, or the defense.

As if this weren’t enough, the state law in question also provides that prior to the admission of the testimony, the court must hold a hearing at which the proponent of the evidence proves by clear and convincing evidence that the hypnosis did not so affect the witness as to render the witness’ pre-hypnosis recollection unreliable or to substantially impair the ability to cross-examine the witness concerning the witness’ pre-hypnosis recollection.

What is the law in your state? While many of the readers may not utilize hypnosis during the course of their work, some do. And, to the unwary, imagine discovering, after it is too late, that the hypnosis performed in a situation such as this has jeopardized the prosecution of the person who perpetrated this horrendous act. Be prepared – find out how this issue is addressed by the laws in the state where you practice.

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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