Avoiding Liability Bulletin – October 2006
… There are situations that may arise in the course of practicing therapy where a therapist or counselor may need or want to confront a patient very directly and may do so in a manner that the patient dislikes. Depending upon circumstances, the practitioner may or may not have difficulties with his or her licensing board. In an interesting case in New Hampshire, a physician had a complaint filed against him with the New Hampshire Board of Medicine, which first tried to settle the matter but then forwarded it to the Attorney General’s Office for investigation. The case involved insensitive statements made by the doctor to his overweight patient.
The doctor admitted that he “told a fat woman that she was obese.” The woman claimed that the doctor was hurtful and not helpful. She claimed that the doctor said words to the effect that she was so obese that she would only be attractive to black men. In defense of that statement the doctor said that he had read polls that indicated that black men prefer overweight women. A Superior Court judge stopped the Board from taking any action against the doctor, relying upon the doctor’s constitutional right to free speech. The judge indicated that calling a patient fat or unattractive to men – though it may be offensive – is permissible.
Some ethics “experts” opine that becoming verbally aggressive to get a patient’s attention is not unethical. There are, of course, opposing views. Therapists must be careful how they talk to their patients. They should not, however, be handcuffed or intimidated from “getting real” with their clients, if necessary. Since practicing psychotherapy is both an art and a science, licensing boards should show restraint in areas like this and should not hamper practitioners from being expressive, directive, or even confrontational.
ABOUT THE AUTHOR
"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.