Advertising, Statute of Limitations, Yelling at a Client

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Avoiding Liability Bulletin – June 2014

Note: In the February 2014 issue of the AVOIDING LIABILITY BULLETIN, I raised many questions for the reader’s thought, research, and discussion with colleagues. The questions were on a variety of topics, arranged alphabetically. Some of the questions, with my answers, follow. The answers are brief and are not intended to be a thorough exploration of the topic.

In the March 2014 issue of the Bulletin, I answered questions raised on the topics of barter, neglect, violence toward patient, and taking a zoo trip with patient. In the April 2014 issue of the Bulletin I answered questions raised on the topics of confidentiality (group therapy), fees, and HIPAA, and in the May issue I answered questions on dual relationships.

A. ADVERTISING: What disclosures should a pre-licensed person make in advertisements? What disclosures must be made? Who should pay for such advertising – the pre-licensed person or the employer? Whose business is being advertised?

With respect to the disclosures that should be made, the pre-licensed person and the employer should be concerned with providing the consumer (the prospective patient or client) with accurate and adequate information in order for the consumer to know, at a minimum, who the owner of the business (the practice) is, the name and pre-licensed status of the person performing the services, and the name and license of the supervisor if the person performing the services is required by law or regulation to work under supervision. Full and accurate disclosure will help those involved with the treatment to avoid liability for false or misleading representations (or the failure to make adequate disclosures).

As to disclosures that are required to be made, reference must be made to applicable laws, regulations, or ethical code provisions. This will likely vary from state to state. With respect to the issue of payment for the advertising, it has long been my view, despite practices by some to the contrary, that the “employer” (whether the pre-licensed person is a paid employee or a volunteer) should pay for the advertising since ultimately it is the employer’s business that is being advertised. Furthermore, the employer should decide whether or not the pre-licensed person’s services are desired to be advertised. The employer should review the wording of any advertisements to be certain that the advertisement meets the employer’s standards and the requirements of law and regulation.

S. STATUTE OF LIMITATIONS: Is there a statute of limitations applicable to disciplinary or enforcement actions by your licensing board? May the Board pursue a complaint if the event complained about occurred more than ten years earlier?

While there is likely a statute of limitations applicable to negligence or other civil actions against therapists or counselors in every state, there may not be a statute of limitations applicable to disciplinary or enforcement actions by the licensing or regulatory board. A statute of limitations bars actions against alleged wrongdoers after the passage of a specified period of time. Even in a state where there is a statute of limitations applicable to a regulatory board action, there will likely be exceptions that allow licensing board action for a specified period of time or for an unlimited period of time. For example, if fraud is involved, such as where a licensee submits fraudulent information during the application process, the licensing board might be able to bring its enforcement action without a time limitation. A similar exception, or a longer period of time within which an action may be brought, may involve enforcement actions related to sexual relations or sexual misconduct with a patient.

The reason why statutes of limitation exist is because fundamental fairness demands that complaints or other causes of action should not be so old or stale as to deprive the accused person of the ability to recall events, obtain witnesses and records supporting the accused, or otherwise mount a defense. Those who would accuse others of wrongdoing, including licensing boards, have an obligation to file a complaint or bring the appropriate action within a reasonable period of time. The legislature of the particular state sets that time in the statute. Statutes of limitation are tolled (the time within which a licensing board must bring an action does not run during the period of tolling) for a variety of reasons. An example of when the period of time (the statute of limitation) will be tolled is where the wronged person is a minor; the time will not typically run during the period of minority.

In California, the licensing board that regulates MFTs, LCSWs, and LPCCs ordinarily must file its formal Accusation within three years from the date the board discovers the alleged act or omission that is the basis for the disciplinary action, or within seven years from the date the alleged act or omission that is the basis for disciplinary action occurred, whichever occurs first. The seven year period of time is extended to ten years if the matter involves sexual misconduct with the patient.

Is there a statute of limitations applicable to an enforcement action by your licensing board, and if so, do you know how old or stale the complaint and formal accusation may be?

Y. YELLING AT A CLIENT: Does it constitute unprofessional or unethical conduct to yell at a patient? If you admitted to a licensing/regulatory board that you yelled at a patient, would it consider the reasons and circumstances – or would they believe that yelling at a patient is never justified?

I doubt whether any licensing law or regulation directly addresses the issue of yelling at a patient /client. Typically, there will be prohibitions against gross negligence or incompetence in performing a licensee’s professional duties, as well as prohibitions against the intentional or reckless causing of physical or emotional harm to a client. While yelling at a client is not the way psychotherapists are expected to act under ordinary circumstances, everything depends upon the particular facts and circumstances involved. Hopefully, the licensing or regulatory board will consider the reasons for any alleged yelling and the facts and circumstances involved, and they will not conclude or assert, based upon a so-called “expert” opinion, that yelling is never justified.

During the course of one’s career as a mental health practitioner, unusual or extraordinary circumstances may arise that necessitate the raising of one’s voice, even yelling, in order to deal with a particular situation with a patient. I remember one case where a patient began to knock over, damage, and break things in the therapist’s office, including some art work. The therapist yelled! Moreover, the mere raising of one’s voice might be interpreted by a patient as “yelling,” and it is far from inconceivable that an angry patient will exaggerate!

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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.

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