Gifts – To and From Patients

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Avoiding Liability Bulletin – October 2007

… I have been asked to comment on how I feel about a therapist or counselor giving or receiving a gift from or to a patient. Is it legal? Is it ethical? Is it wise? Is it to be avoided at all costs? Can one get in trouble? As I cautioned in last month’s Bulletin regarding hugging and informed consent, the answer to such questions are not as easy as they first appear to be, and accurate and helpful answers depend upon the precise question asked – as well as the context. Is the mental health professional primarily interested in avoiding risk, or is he or she desiring to act in a certain manner – so long as it lawful and ethical – even if controversial or unconventional.

Forgetting about legalities and the questions asked in the prior paragraph, let me first make a few comments about how I feel about gifts exchanged between patients and therapists. I start with the position that generally (there are exceptions), gifts should not be accepted nor should they be given. Without careful thought and analysis, such activity can often lead to unexpected trouble for the unwary practitioner. Even where careful thought has occurred, trouble may bubble up unexpectedly. I lean in favor of this position because it forces the person I am speaking with to overcome my bias against gift giving or receiving by articulating why such activity, in a given instance, may fall within an exception to the general rule and may be both supportable and appropriate.

Much of my exposure to the issue of gifts has occurred when a therapist was in some degree of trouble because he or she received one or more gifts from a patient (or the patient has received one or more gifts from the therapist), and later the patient or someone in the patient’s family complains about some aspect of the gifting and may misinterpret its meaning or purpose. Often, there is more involved in the matter than a mere gift. Each case is different. Each question presented is different because everything depends upon the particular facts and circumstances involved – such as the issue, problem, or disorder the client/patient is being seen for, the nature of the relationship between therapist/counselor and patient/client, the theoretical orientation of the practitioner, and cultural factors.

Giving or receiving a gift, depending upon circumstances, may be lawful and ethical. It does not necessarily have to be avoided at all costs, unless there is a specific prohibition in state law, regulation, or a controlling ethical standard. But licensing boards and ethics committees, as well as any number of expert witnesses, often take the positions that there are problematic “boundary issues” connected with gifting and that gifting may be evidence of an improper dual relationship. Because of this perception, therapists and counselors would be wise, in my view, to generally avoid giving or receiving gifts if they want to maximize the avoidance of risk. If gifting does take place, the results of a complaint or lawsuit often depends upon the factors mentioned above, as well as such other factors as the nature and frequency of the gifting, the value and form of the gift, and whether other problematic conduct is occurring.

Too rigid an approach (as with the issues of touch and dual relationships) is stifling for the mental health professions and for the patients or clients they serve. But, sometimes, state agencies (e.g., licensing boards) are overly zealous, for any number of reasons, in their efforts to protect the public. Litigants (including state agencies) can easily hire expert witnesses to testify to just about anything. Because of possible injustice, or because of issues involving the costs and expenses of litigating, or just recognizing how the system works, therapists and counselors must be cautious.

Ponder this scenario: A wealthy deceased patient leaves her former therapist a $10,000 bequest in her will in appreciation for her work with the patient and other family members over a long period of time. The gift is first disclosed to the therapist two months after the patient’s death and one year after the termination of therapy. The deceased patient’s spouse is supportive of the bequest and is the one who tells the therapist about it. Is it okay for the therapist to accept the bequest or must (should) it be returned to the estate? What would your lawyer say? What would your professional association say? What would be the position of your licensing board?


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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