Duty to the Patient – When Does it Begin?

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Avoiding Liability Bulletin – September 2010

…Therapists and counselors often discuss the issue and process of termination of treatment, including the question of when the termination becomes effective, but not as much discussion occurs with respect to the question of when the therapist-patient or counselor-client relationship begins. When I write about this topic I do have a bias in thinking about the consumer of mental health services as the “patient,” and not as the “client.” Lawyers have clients. Prostitutes have customers. Retail establishments have consumers. Practitioners who provide mental health services, or who seek to diagnose and treat mental or emotional conditions or disorders, do so, in my view, with patients. The psychotherapist-patient privilege is granted to patients, not clients. “Patient,” for purposes of the privilege, may be defined as a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his or her mental or emotional condition. Thus, I discuss the duty to the patient below!

Some may think that the relationship with the patient begins when the first session begins, or perhaps when it ends. Others may peg the beginning of the relationship to when the patient pays for the first session. Others may argue that the relationship begins when there is an oral (or written) agreement to provide services at an agreed upon fee, or after the patient receives the therapist’s disclosure or “informed consent” form. While this is a rather technical question and usually not of great importance, I am reminded of the situation where a therapist receives a telephone call from a prospective patient referred by a former patient of the therapist. The prospective patient tells the therapist that his wife has just informed him of her desire for a divorce, that he needs some help during this trying period of time, and that the therapist was highly recommended. The therapist tells him that he has an opening on Friday afternoon and that his fee is $125 per hour. The prospective patient makes an appointment for Friday, some four days later.

Suppose that on Wednesday before the scheduled meeting the “prospective” patient calls in crisis – talking of possible violence aimed at his wife and her new companion. Suppose further that the therapist has second thoughts about taking on such a difficult case and thinks about telling the “prospective” patient” of his reluctance to proceed and his desire to make a referral to a therapist who deals with this kind of acute problem. Finally, suppose that the “prospective” patient insists upon seeing the therapist that evening. What is the duty of the therapist?

My view is that the therapist is under a duty to see the new patient, to assess the situation, and by doing this, to thereby commence “treatment” (hold a first session). Consultation may be needed. Referral for appropriate reasons may soon be necessary. However, the failure to see the patient for the initial visit, for which an appointment was made, could result in liability for the therapist. An effort to refer the patient prior to the first session, under these facts, would in my view create a liability problem for the therapist in the event that the patient was to object.


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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