AVOIDING LIABILITY BLOG

Self Disclosure – Personal Blogs

January 2009

… The topic of self-disclosure was briefly addressed in the August 2007 (Volume 1) issue of the Avoiding Liability Bulletin under the title of “Self Disclosure.” As with many discussions about self-disclosure, the assumption in that piece was that the disclosure takes place during the therapist-patient or counselor-client relationship. In that context, self-disclosure by the practitioner is typically and appropriately used to improve the practitioner-patient relationship and is made with the intent to benefit the patient rather than to satisfy the needs of the therapist or counselor. The article pointed out that in many dual relationship cases where a therapist or counselor gets in trouble, there has been too much personal disclosure by the practitioner.

I have been asked by a reader to comment about the issue of self-disclosure as it relates to blogging by a therapist or counselor. Some of my comments and thoughts follow. First, and for purposes of this short piece, I accept the definition that a blog is an online journal or diary where one can post messages and others may view and respond to these posts. It has also been defined, rather simply, as a frequent or chronological publication of one’s personal thoughts, including web links. The disclosures by the therapist or counselor blogger will typically (but not always) take place before there is a professional relationship.

When a person becomes a therapist or counselor he/she does not give up his/her basic personal rights or civil liberties. Whether a lawyer, brain surgeon, holistic health practitioner, financial advisor, or elected official, the personal right to fully participate in our society is generally not forfeited upon licensure or upon pursuing a particular career. Thus, if someone wants to publish and maintain a blog wherein he/she shares his/her thoughts about particular topics, he or she is generally free to do so. This is the personal right and privilege that we all enjoy. Principles of freedom of speech and expression and the right to assemble and associate with others are embedded, in my view, in this broad right to live one’s life unconstrained by arbitrary restrictions or by unreasonable fears.

It is, of course, the content of the blog that is critical to the determination of whether or not anything has been done that will subject the therapist or counselor to some jeopardy. Therapists and counselors must use their good judgment before publishing material that will be distributed so widely. For instance, they must be concerned about such things as defamation (e.g., libel), copyright infringement, and plagiarism. An obvious area to stay away from would be discussing clients and using actual case examples to make certain points. Even if the identity of the patient or client is hidden, the patient or client may recognize his or her “story” and may be angry because of the publication itself and the “exploitation” of the story.

Another area to stay away from is anything approaching the provision of therapy, counseling, or advice giving – or anything that reasonably could be interpreted as such. Once a therapeutic relationship is established, even if unintentionally, substantial duties are imposed upon the blogger. Depending upon the nature and extent of the blogging, disclaimers regarding the provision of therapy or counseling services or advice may be necessary or appropriate. Because of the interactive nature of blogging, practitioners should be mindful of the possibility that a patient might also be interacting with the practitioner, perhaps under a fictitious name, in the blogging community. This possible dual relationship could, under some circumstances, present problems for the practitioner and for the therapeutic relationship.

As to the amount of personal disclosure, that too must necessarily be left to the good judgment of the practitioner. Artificial limits are neither necessary nor easily drawn. Of course, the subject matter of blogs will vary widely. One may write about his or her views of the world, politics, sports, health care, or horseshoes! Blogs that are directed to the general public or that focus on subject matter like horseshoes, seem less problematic when compared to blogs that focus on subject matter like mental health care or those that are directed to mental health consumers or mental health practitioners, although even with the latter subjects, the potential dangers seem to me to be slight.

What if a therapist or counselor published a blog that was dedicated to and focused upon lambasting health insurance companies and HMOs? What if a prospective client was aware of the practitioner’s blog and sought treatment services from the blogger, in part, because the prospective client agreed with the positions taken by the blogging practitioner? Does sharing this kind of information present problems for the mental health practitioner? Or, what if the blogger focused on his or her emotional well-being and used the information to educate the public? Suppose, for example, the practitioner, blogged about his own personal processing of the issue of emotional eating. How might this personal “sharing” be viewed by the public (including the licensing board) or by existing or future clients/patients?

There is nothing wrong, in and of itself, with self-disclosure. The fact that patients or prospective patients know something about the views of the practitioner is not necessarily problematic. Therapists and counselors do not have to perform their services in anonymity – they can have views and personalities and passions. It is important, however, that their own “stuff” does not become the focus when in treatment relationships with clients or patients. For instance, with respect to the blogger focused on insurers and HMOs, will the therapist or counselor try to influence the patient to behave in a certain way toward HMOs? Will the patient or client get caught up in the practitioner’s cause? If so, this can be problematic for the practitioner.

The blogging about emotional eating is somewhat different and somewhat problematic, although there may be nothing unlawful or unethical about it. Perhaps some patients or prospective patients exposed to such viewpoints would find it helpful or interesting personal information about the practitioner. Licensing boards and ethics committees are not likely to try to prevent or interfere with therapists or counselors expressing themselves as bloggers – even if the topics relate to mental health care issues and even if the therapist or counselor discloses personal information. They are more likely to act if there is a complaint from a consumer that involves self-disclosure by the practitioner that has had an alleged negative effect upon either the quality of the therapy or counseling, or upon the relationship itself.

Often, as stated in my earlier piece, complaints involving self-disclosure also include dual relationship issues. The therapist or counselor typically shares so much personal information that the client then becomes caught up in the practitioner’s personal issues – sometimes to the extent that the patient is satisfying the needs of the practitioner. The “doctor-patient” relationship is affected in a way that puts the needs of the doctor ahead of the needs of the patient. Eventually, when the patient realizes what is happening or learns that the nature of the professional relationship has changed so dramatically, the patient may complain to an ethics committee or licensing board or may threaten suit. In defense of the therapist or counselor, and depending upon the circumstances and the jurisdiction, there may be no laws or regulations that prohibit self-disclosure or that limit or define it. There may, however, be ethical cautions or guidance concerning the nature, extent, or purpose of self-disclosure.

In summary, it seems to me that blogging is generally not problematic for mental health practitioners. Nor is self-disclosure. Good judgment must of course be used, but beyond that, patients are generally allowed to know whatever is in the public arena concerning their therapist or counselor. It is conceivable that a patient who discovers the blog, either before or during the therapeutic relationship, will mention the blog content during the course of therapy or counseling. While practitioners must make sure that the primary focus is upon treating the client and addressing his or her problems and issues – and not upon other extraneous matters or controversies – they would certainly be expected to respond to patient inquiries or comments. Practitioners must be cognizant of the possibility that a client may be a reader of the blog (or one who posts) and that prospective clients may present themselves as a result of the blog.

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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