Avoiding Liability Bulletin – February 2012
… In the January 2012 issue of this Bulletin, under the title of Termination Of Therapy When the Client Stops Attending Sessions, I wrote about the situation where the client stops coming to therapy. A reader had asked about the therapist’s liability for suicidal behavior and safety of the client and whether the therapist had to “close the file” and send notification to the client. As described in the article, these situations occur when the client may have unilaterally terminated without communicating a termination to the therapist – there are simply successive missed sessions without any communication. I pointed out that it is dangerous to allow such situations to occur because there can be liability, depending upon the circumstances, for acts that occur after or between the missed session(s). The therapist should want to seek clarity about the status of the professional relationship. As far as the therapist may know, there has been no termination.
In the article, I explained that when clarity about the relationship is sought by the therapist, the patient may then inform the therapist of the intent to end therapy. I also indicated that the therapist will be in a better position to discern what action may be warranted, and I indicated that the therapist may want to let the patient know that one or more termination sessions are appropriate and that there will be no charge for these sessions. The reader wrote to express dismay at my statement regarding the free sessions, indicating that I was essentially stating that the offer of free sessions was required. To the contrary – such an offer is not required.
The offer of one or more free termination sessions, however, is something that therapists have used with patients in such situations. These situations may involve patients who are, for one or more reasons, upset with the therapist or the therapy and who simply walk away – they do not attend one or more successive sessions. These situations may be more likely to result in some kind of claim, complaint, or lawsuit against the therapist or counselor. Practitioners in such situations should know that their conduct may come under scrutiny. It is in this context that the therapist or counselor may decide to offer the patient (who may already be reluctant to attend further sessions) one or more free sessions in order to seek appropriate closure.
The practitioner may believe that the patient will be unwilling to accept the offer, but may want the patient’s treatment records to reflect that the offer was extended and refused. Such action, by no means required, may help the therapist feel more confident that when his or her actions are later reviewed, he or she will appear to have acted reasonably and ethically. Moreover, if the patient accepts the offer, this may provide the therapist with an opportunity, not otherwise available, to repair the relationship.
ABOUT THE AUTHOR
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.
