Hugs and Other Touching

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Avoiding Liability Bulletin – September 2007

I have been asked for my opinion about hugging that may occur between a patient and a therapist or counselor. Is it proper? Is it lawful? Can I get in trouble? Should I do it only on special occasions or never at all? What about informed consent – is it necessary? These are interesting questions and are not easy to answer – even though it might appear that the answers are not that difficult. Some might say – “of course you can engage in non-sexual hugs with a patient. Hugging is simply a way to greet someone. It shows more warmth than a mere handshake or a nodding acknowledgment. We are allowed to be human with our patients and do not have to treat them like they have the plague or that they are so disordered as to not be able to engage in a common custom and practice. Some patients may initiate a non-sexual hug, and for the therapist to be forced to reject that gesture is both unnecessary and possibly hurtful to the patient.”

One can certainly make such an argument. But here is a scenario that presents a bit different perspective. “I was taken aback when my therapist hugged me at the beginning and end of sessions. During a few sessions when I was grieving over my deteriorating personal situation, my therapist again hugged me. I began to wonder if the hugs were something that my therapist needed. I didn’t feel comfortable saying anything because I thought that the therapist might take offense, think less of me, and think that my reaction was now grist for the therapeutic mill. I wondered why the therapist didn’t say anything to me about the touching that would occur before we started our therapeutic relationship. I never thought that touch was a part of therapy. My friend said that the therapist should have first obtained my written and informed consent.”

Which camp (perspective) do you fall into? Whatever your leaning, let me now address the questions asked above. Before doing so, it is important to understand that the advice a therapist may receive about any particular legal issue depends in large measure upon the question asked. For instance, there is a big difference between a question that asks whether a particular act is legal, and a question that asks whether there is a reasonable likelihood that one can get in trouble even though the act may have been lawful. Additionally, it is important to keep in mind that some who seek advice want to lean in favor of conservatism (keep me out of trouble at all costs!), while others are willing to be more liberal, as long as their actions are lawful or likely defensible. They may believe that the practice of the “art” of therapy provides them with a reasonable degree of freedom.

Once the variables cited above are clear and understood by the therapist or counselor, the answers to the questions may become easier. Thus, if the therapist wants to avoid risk at all costs, don’t hug and don’t touch. Just do talking therapy or counseling, and if a patient were to ever initiate or attempt a hug, be prepared (because you have thought about this topic in advance) with a clinically appropriate and respectful declination or statement of preference. As to the question about getting in trouble, I once spoke with a therapist who was charged with sexual misconduct – the patient alleged that during a hug, the patient became aware that the therapist had an erection. The therapist vehemently denied the allegation. If the therapist did not hug, the allegation might not have been made. When the therapist is questioned by the attorney representing the state (the licensing board) or by an opposing attorney in a malpractice case, the questioning may make the therapist look bad – even though his acts may have been lawful and proper.

For example, an attorney might ask with a challenging and sarcastic tone: “Do you routinely hug your patients? Isn’t it a fact that you hug female patients only? Can you please explain where each part of your body was when it touched the body of the complainant? Do you know what an A-frame hug is? Did you learn that in your practicum? Did you learn about hugging in your educational program? Is it recommended for clinical purposes in the professional literature? No? Then why did you do it? Is it something that perhaps you needed, doctor?” This kind of case and questioning should illustrate that “yes” – you can get in trouble for doing something that is lawful and proper. Sometimes patients lie (or they are mistaken) – and they may take innocent acts and turn them into false allegations.

One other situation might be helpful to consider. I have spoken with therapists who have asked me whether they can get in trouble if they use their therapy license in conjunction with their license (or other authority) to practice massage by combining massage with the psychotherapy. In other words, massage the client and talk about personal and mental health problems. Their position is that both activities, in and of themselves, are lawful and proper, so why can’t they be combined? My advice is that if they want to practice both professions separately, in separate offices, with separate clients, they can do so. But marriage and family therapy, for example, does not involve rubbing the patient’s shoulders and other parts of the body for the purpose of relaxation or ameliorating pain or discomfort!

As to the issue of hugging on special occasions, that presents a different dynamic. Circumstances may arise during the course of a therapeutic relationship that may result in some touching (e.g., hugging). A patient may break down in tears over some tragedy that has befallen him/her, or a patient may be celebrating a marriage or birth of a child. If a therapist were to hug the patient on such an occasion, the risk is certainly less than it would be during a regular hugging “regimen.” Likewise, adverse inferences that others may draw should certainly be minimal. Touching in and of itself is not illegal. After all, therapists do on occasion shake hands with patients!

As to the issue of informed consent, it is my view that therapists and counselors who incorporate some form of touch or physical contact within their practices should first obtain some form of “informed consent.” The precise form of the informed consent may depend upon state law requirements. Just as a therapist might first ask a patient whether or not it is okay to call the patient at home, or at work, if necessary, or to send a bill or correspondence to the patient at his or her address, so too should the therapist find out from the patient whether or not it is permissible to touch the patient on a regular basis. In other words, if hugging routinely occurs or other forms of touch are incorporated into the counseling or therapy, why not provide the patient with a written and signed informed consent, where the nature and purpose of the touch is disclosed.

The exact content of the informed consent must be carefully considered and drafted. The content will of course vary with the nature and purpose of the prospective touch. The patient should be given an opportunity to consent or object to the touch, and the patient should be assured that if consent is not given (e.g., for hugging before and after sessions), the therapist will fully respect the decision and no negatives will flow from the refusal to consent. If the touching is in any way related to treating the patient or is in any way intended to help the patient, then the informed consent document should disclose the clinical rationale and support for such an approach. The potential risks and benefits of the approach should be fully and accurately disclosed.


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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