AVOIDING LIABILITY BLOG

Patient Reveals Sex With Prior Therapist – Protecting the Public?

Download PDF

Avoiding Liability Bulletin – March 2019

In California, when a patient reveals to a psychotherapist that during the course of a prior treatment the patient engaged in sexual intercourse or other sexual behavior or sexual conduct with the previous psychotherapist, there is a requirement to give the patient a specified brochure (a government publication) and to discuss the contents of the brochure with the patient. Some may ask why there is no requirement for the subsequent therapist to report such alleged unlawful or criminal behavior on the part of the prior therapist. The simple answer is that the patient’s confidentiality and privacy should be protected and should not be breached by the treating practitioner. The patient should be the one who chooses to report the wrongdoing after the patient has been made aware of information regarding therapist sex with patient and the several options that can be pursued. Not all states address the situation similarly, and some may require more of the therapist, such as making a report to the board, seeking the patient’s authorization to report, or other action aimed at encouraging that a report be made. What is the law in your state?

A question that consumer advocates in California and elsewhere may ask is why the brochure must be given only in the limited circumstance indicated above. They might ask why there is no requirement for the brochure to be given to all patients at the outset of all psychotherapist-patient relationships. If the brochure was distributed at the outset, consumers would be made aware of this important information in a timely manner and throughout the universe of those seeking mental health care – rather than the select few who receive the brochure after the wrongful act or crime has been committed. They might argue that since this behavior is not the result of negligence, but rather, an intentional act, and since this is one of the worst violations which can cause great psychological harm to patients, early and widespread distribution of the brochure would serve to protect consumers – some of whom may be vulnerable when commencing psychotherapy. Moreover, the brochure has for years contained a so-called “Patient Bill of Rights,” which seemingly applies to all patients (but is only distributed to a select few) and is largely unrelated to the issue of sexual involvement with a prior therapist.

Suppose a patient revealed to her current California therapist that her prior therapist told her that because he was attracted to her, it was his ethical duty to terminate the therapeutic relationship and to refer the patient to another practitioner. The sexual relationship then began a few weeks after the referral was made and the new therapeutic relationship had commenced. While the current therapist could discuss the situation with the patient and choose to give her the brochure, there appears to be no mandate to give the brochure under such a circumstance. Even though it is unlawful and unprofessional conduct (in California) to engage in sexual relations with a patient during or within the two years following termination, this specific behavior apparently does not warrant the mandatory giving of the brochure. Terminating therapy and making a referral, and then engaging in sexual relations, was formerly and for many years a way for therapists to attempt to avoid being held accountable. The enactment of “the two year rule” was an attempt to stop that practice.

DISCLOSURES TO PATIENT

Some of the common questions that licensed mental health practitioners ask revolve around the specific content and extent of disclosures that are or should be made to patients prior to or at the commencement of treatment – usually in an office policy document or what some describe as an informed consent document. On more than one occasion, I have written (in the Avoiding Liability Bulletin) about the important distinctions, sometimes misunderstood by licensees and regulators, between the doctrine of informed consent and voluntary or mandated disclosures. Some practitioners seem to want to throw everything into a disclosure statement in order to avoid a later claim by the patient that he or she was not made aware of something and that the failure to disclose it constituted negligence or some kind of wrongdoing or malpractice. Other practitioners are comfortable disclosing whatever is required under state law or regulation plus selected and limited information.

Following is a partial list of disclosures that practitioners may want to include (or if required, must include) in a disclosure statement of some kind: a) something about the nature of therapy or psychotherapy – including something indicating that there is no guarantee of a cure, b) something about the practitioner’s licensure, qualifications, and clinical orientation c) something about confidentiality and the most common exceptions thereto – both mandatory and permissive exceptions, d) something about the practitioner’s availability in general and in cases of emergency, e) something about termination of therapy by the practitioner and by the patient, f) something about the fee for services to be performed, including any policy regarding raising fees, “sliding” fees, and fees to be charged when the patient cancels an appointment or fails to show, g) the practitioner’s policy re: insurers/managed care and other third party payers, and h) something about the practitioner’s “no secrets policy” (if there is one) regarding family therapy or couple therapy.

Other disclosures that some inquire about that may be questionable, or that may require careful and nuanced discussion and drafting, include such things as 1) the likely or expected outcome of therapy, 2) the likely length of therapy, c) the nature and extent of the therapist’s record keeping system and the patient’s access to the records, 3) a statement regarding the various rights of the patient, 4) the potential risks of psychotherapy or couple therapy – including such things as the possible separation and divorce, 5) the alternatives to treatment with the licensee, including the alternative of no treatment, self help, or referral to a higher level of care, 6) the patient’s right to not use the available sessions, 7) attaching  a copy of the Code of Ethics of the applicable professional association, 8) the right of the practitioner to sue the patient or refer the matter to collections if payment of fees owed is not made, and 9) something about the psychotherapist-patient privilege. If there is a required disclosure that addresses any of these issues, that disclosure must of course be made.

CONVICTION OF CRIME AND PROTECTING THE PUBLIC

Licensing boards throughout the country, in varying degrees, emphasize that their primary duty is to protect the consumer – the public – from incompetent or unprofessional licensees (those engaging in prohibited or “unprofessional conduct”) and from some who are pursuing the license. While this is a worthwhile and appropriate mission, the zeal with which protection of the public is pursued can sometimes become excessive and unfairly onerous upon those licensees that the board pursues or those applicants blocked from unfettered entry into the profession. Legislators who from time to time review the performance of licensing boards not only examine how effectively  and efficiently the board processes applications for licensure, but they always concentrate on the enforcement statistics that the board presents –and licensing boards know this well.

I have previously written about concerns that some have regarding the situation where an applicant or a licensee has been convicted of a crime that appears to be unrelated to one’s practice of psychotherapy or if related, it is of a minor nature or well in the past. It is believed by some that licensing boards have been overzealous in their pursuit of applicants and licensees, including the imposition of onerous probationary terms and conditions, when the conviction of a crime is reported to the board. In California, recently enacted laws impose a variety of limits on occupational licensing boards with respect to this conviction of crime issue and to other conduct of licensees or applicants. The law also addresses the tendency of licensing boards to determine crimes to be substantially related to the qualifications, duties, or functions of particular licenses when such a relationship may be tenuous at best.

This successful legislative effort recognized that there was a need to set reasonable limits on the power of licensing boards to prevent qualified people from entering a wide variety of professions or to revoke or otherwise limit an existing license to practice. The legislation was opposed by the Board of Behavioral Sciences (it licenses LMFTs, LCSWs, LPPCs and Educational Psychologists), the Board of Psychology, the Medical Board, the Department of Consumer Affairs, and other occupational licensing boards. The legislation was supported by a wide array of community based and human rights organizations, including the American Civil Liberties Union. Licensing board activities (e.g., supporting or opposing legislation, promulgating rules/regulations) must be monitored closely in order to protect against overreach – despite the good intentions (protecting the public) of the regulators. This California legislation (AB 2138) was passed in 2018.

ABOUT THE AUTHOR

Avatar

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.

Have Questions? click here, We’re happy to help!