There are over 450 schools of psychotherapy currently in existence (Simon, 2001, p. 90). New schools continue to emerge. Amidst this diversity, basic clinical–legal principles generally apply to most, if not all, forms of psychotherapy. Psychotherapists need to have a working knowledge and comfort managing clinical–legal issues arising in psychotherapy to avoid maladaptive defensive practices that may interfere with treatment. Moreover, legal issues can often be turned to the benefit of the patient's therapy.
It is said that psychotherapy is an ‘impossible task’, sometimes complic-ated by litigation (Simon, 1991). In recent years, negligence claims against psychotherapist have substantially increased. Table 41.1 lists typical malpractice claims filed against psychotherapist.
Patients have the right and psychotherapists the duty to have spoken or written communications during the course of treatment kept confidential. In the US, there is no legal obligation requiring therapists to provide information, even to law enforcement officials, absent statutory disclosure requirements, or judicial compulsion (Simon, 2001, p. 90).
The therapist's duty to safeguard confidentiality arises from four sources:
The ethical codes of the mental health professions.
States recognize the right of confidentiality through provisions in professional licensure regulations or in confidentiality and privilege statues.
The common law has long recognized an attorney-client privilege. Developing case law has carved out similar protection for psychotherapists, although not as stringent.
The right of confidentiality derives from various constitutional guarantees. An explicit constitutional right of privacy does not exist.
In Jaffe v. Redmond (1996), the US Supreme Court ruled that communication between the psychotherapist and patient are confidential. The psychotherapist is not required to disclose them in federal trials. The decision does not, however, apply to state courts where most psychotherapist–patient confidentiality matters take place.
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Table 41.1 Typical malpractice claims against psychotherapists
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The psychotherapist's duty to maintain confidentiality is not absolute. Circumstances arise where it is both ethical and legal to break confidentiality. In the US, for example, ‘The Principles of Medical Ethics with Annotations’ especially applicable to Psychiatry (American Psychiatric Association, 2001) states: Psychiatrists at times may find it necessary, in order to protect the patient or the community from imminent danger, to reveal confidential information disclosed by the patient (Section 4, Annotation 8). Patients wave confidentiality in a variety of situations; for example, employment and disability examinations, insurance applications and licenses of various kinds. A limited waiver of confidentiality exists when a patient participates in group therapy. In managed care settings, the therapist should inform the patient about any limitation on maintaining confidentiality. In the US, new federal regulations and existing state statutes mandate disclosure by the therapist in a number of situations (see Table 41.2).
In a number of US jurisdictions, therapists have a legal duty to warn and protect third parties endangered by their patients. The therapist is frequently caught in the conflict between warning and risking a breach of confidentiality suit or keeping silent and risking a suit for failure to warn and protect endangered third parties (Herbert and Young, 2002). As no standard of care exists for the prediction of violence, careful assessment of the risk of violence should inform the therapist's decision whether to breach confidentiality and warn (Simon, 2001, pp. 179–80). Warning by itself, however, is usually insufficient. The duty to protect allows for clinical interventions (e.g., increase frequency of outpatient visits, adjust or add medications, hospitalization) that may obviate the need to breach patient confidentiality.
In the UK, by contrast, there is no binding requirement on clinicians to disclose dangerousness. The decision to disclose always is based on the judgment that the responsibility to protect the public outweighs the duty to the patient to protect confidentiality.
Case example: A patient suffering from a personality disorder, with a history of pedophilic offences, and currently living with a divorced woman with two young daughters, disclosed during a psychotherapy session that he experienced the dilemma of standing on the landing and being unsure which bedroom to enter—the mother's or the girls.’ The therapist chose not to disclose the situation to the social services department immediately, but tried instead to use interpretation to remedy the situation. He suggested that the patient was asking the therapist to help curb his impulses. The therapist linked this with the absence of the patient's father who had been killed in actions during the war, and whose uniform he sometimes donned in order to give himself a sense of power and authority. The therapist suggested that the patient was asking him to help find the authority (the ‘uniform’) within himself to do the ‘right’ thing. To the therapist's relief, the patient reported at the next session that he had moved out of the house and did not, in fact, reoffend for a further 13 years.
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Table 41.2 Statutory disclosure requirements: some examples
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Clearly, the therapist was taking a great risk in delaying disclosure. The justification for this delay was that by doing so he was facilitating a developmental step which might otherwise have been swept aside by instigating the legal process. This example dates from the 1980s. In today's zero tolerance climate, the therapist might have handled the situation differently. Nevertheless, in the UK, the clinician continues to be accorded the respons-ibility to make a considered decision whether or not to infringe the right to confidentiality. Statute law (e.g., notification of diseases) determines when the clinician must infringe that right; case law when he may do so. Most psychotherapy falls under the latter. Each case must be considered on its merits, although the courts would expect that the clinician would discuss any difficult or marginal decision with a colleague, and record accurately the reasons for any course of action (or inaction).
Valid, informed authorization for the release of information provides legal protection for the therapist. State laws and mental health confidentiality statues specify the requirements for valid authorization. Consent for the authorization of release of information should be written, not just verbal. Blanket consent forms should be avoided. Instead, consent should be given for the nature of information released, whether a one time or ongoing release and the specific individual or entity that is authorized to receive this information.
An unauthorized or unwarranted breach of confidentiality can cause a patient great harm. In such situations, the therapist may be held liable for the breach under four legal theories:
malpractice (breach of confidentiality)
breach of statutory duty
invasion of privacy
breach of implied contract.
Testimonial privilege provides the patient the right to prevent the therapist from disclosing confidential information in a judicial proceeding. Privilege statutes recognize the importance of protecting confidential information revealed by the patient during the course of treatment.
A number of exceptions exist to testimonial privilege. These include involuntary hospitalization, child abuse reporting, court-ordered evaluations, and the patient-litigant exception that occurs when patients place their mental state at issue in litigation. This exception usually arises in malpractice claims, personal injury actions, child custody disputes, workers’ compensation cases and will contracts.
Therapists often confuse confidentiality with testimonial privilege. Although protected by common or statutory law, maintaining confidentiality is an ethical duty of the therapist with a long and venerable history. Testimonial privilege is established by state statute and belongs to the patient.
Therapists who also act as expert witnesses for their patients risk breaching confidentiality and disrupting treatment. Expert and treater roles do not mix. Once the therapist is on the stand and takes the oath, he or she may be required to answer questions that may reveal embarrassing, damaging information about the patient. Such revelations may not only damage the therapist–patient relationship, but also the patient's legal case. The expert-treater role conflict is discussed in greater depth by Strasburger (1987; Strasburger et al., 1997).
Minors are considered by law to be 18 years of age or younger. However, the general rule is that confidentiality follows the ability to legally consent to treatment (Simon, 2001, pp. 45–7). Young minors, usually defined in mental health confidentiality statutes, require parents or guardians as the legal decision makers. Parents or guardians have a right to know about diagnosis, treatment, and prognosis. Minors may be judged to be mature minors by therapists when they possess sufficient maturity to understand and consent to treatment. Minors may be considered emancipated when they are living away from home or are able to support themselves. Consent of parents is not required in emergencies.
In the US, all states, the District of Columbia, and other federal jurisdictions require healthcare providers, as mandated reporters, to report child abuse. Child abuse laws require the reporting of any physical injuries suspected of being inflicted by other than accidental means or where a child is believed to have been injured by a parent.
Psychotherapy that takes place in correctional facilities or court-mandated outpatient treatment settings present challenging confidentiality issues. The therapist in these situations must grapple with the problem of double or triple agentry, otherwise known as conflicting loyalties (Weinstein, 1992). For example, the therapist working in a prison often is confronted with choosing to serve the prisoner-patient, prison officials, or society.
In practice, there is very little confidentiality in a correctional facility (Metzner, J. L., 2002, personal communication). The staff and prisoners usually know who is receiving mental health treatment. However, the content of treatment may or may not remain confidential. Prisoners may be informed about the limitations of confidentiality. Most treatment is behaviorally directed in group settings. Prisoners can be harmed if highly sensitive information is revealed in group therapy and then disseminated among the prison population. When a prisoner-patient's treatment plan is reviewed, many of the prisoner's psychological issues are discussed. There is no guarantee that this information will be kept strictly confidential.
Some prisoners want it explicitly known that they are receiving therapy. Their aim is to create the impression of being ‘crazy,’ which affords some protection against predatory prisoners who avoid them. Other prisoners seek therapy in order to shorten their length of sentence or gain special favors. The lack of confidentiality in correction facilities harms prisoners who genuinely want treatment. Bifurcating treatment content from administrative oversight, whenever possible, may provide some measure of con-fidentiality for the prisoner-patient. In correctional facilities, the therapist can talk with anyone, if he or she thinks it is appropriate. Such communications are constrained only by the therapist's good judgment. The prisoner-patient should be informed of all disclosures to third parties.
A number of professional organizations attempt to clarify the separation of forensic and therapeutic roles in prisons through standards and guidelines. Confidentiality issues are also addressed in: ‘Standards for Health Services in Prisons’ by the National Commission on Correctional Health Care (National Commission on Correctional Health Care, 1999), the ‘Ethical Guidelines for the Practice of Forensic Psychiatry’ (American Academy of Psychiatry and the Law, 1987), and the ‘Principles Governing the Delivery of Psychiatric Services in Lock-Ups, Jails and Prisons’ published by the American Psychiatric Association's Task Force on Psychiatric Services in Jails and Prisons (American Academy of Psychiatry and the Law, 1989).
‘Forced’ treatment may occur as a condition for offenders to be diverted from adjudication or incarceration, such as with sex offenders and juveniles (Melton et al., 1997). The maintenance of confidentiality so essential for successful treatment is observed in the breach. Offenders do not reveal information that might lead to their incarceration.
The therapist must issue reports about the offender's participation and progress in treatment. Again, the therapist should not release highly personal information to parole officers or other supervisory personnel that is irrelevant. The offender should be informed of all disclosures, unless informing would create a threat of harm to the therapist. If a realistic threat of harm exists to the therapist, appropriate officials should be informed and treatment should be terminated.
In the noncriminal context, psychotherapists may become involved in ‘forced’ treatments when they agree, for example, to treat impaired healthcare professionals. As a means of retaining or reinstituting the professional's license to practice, psychotherapy must be undertaken by approved therapists. Licensure boards try to respect the confidentiality of therapist–patient relationship by requiring general reports of attendance, progress in therapy and suitability to practice. Confidentiality is preserved to the greatest extent possible, unless the patient presents a danger of harm to self or to others. Maintenance of confidentiality in ‘forced’ treatment of healthcare professionals is not substantially different from the usual therapist–patient relationship.
Good clinical care is facilitated by explaining in ‘forced’ treatment the limitations of confidentiality and sharing with the patient any information released to the third parties, including family members (Simon, 1992a, pp. 133–4). The therapist as a double agent presents formidable challenges to maintenance of confidentiality and the therapeutic alliance, evoking powerful transference and countertransference challenges (Gabbard and Lester, 1995).
Case example: A mental health professional is required by the licensure board to undergo psychotherapy for sexual misconduct with a patient as a condition for regaining the license to practice. During therapy, the therapist discovers that the patient abuses alcohol and drugs. The patient adamantly objects to the therapist reporting the abuse to the licensure board. The therapist feels caught between her reporting responsibilities to the board and preserving the therapeutic alliance essential to the patient's treatment. The therapist decides to maintain her treatment role and to handle the patient's refusal as a treatment issue. Eventually, the patient acknowledges the destructive personal and professional consequences of polysubstance abuse, he voluntarily enters a detox and rehabilitation program approved by the licensure board.
As psychotherapy is a ‘talking’ treatment, is informed consent necessary? The answer is yes, because all psychotherapies have risks and benefits that patients need to understand. Few therapists warn patients of the risks of a proposed psychotherapy, although the potential benefits may be emphasized. Untoward transference reactions, mismanagement of transference and countertransference, regressive dependency states, and general worsening of a patient's clinical condition are some of the risks of psychotherapy.
Informed consent is important in psychotherapy. Through increased participation of patient—consumers in treatment decisions, the potential for the use of harmful treatments is lessened. Therapists must be prepared to consider thoughtfully the risks and benefits of any treatment they recommend to patients. Informed consent doctrine provides a basis for legal recovery of compensation for patients who are harmed by failures of therapists to obtain informed consent. Some states that have informed consent statutes declare the failure to obtain informed consent to be negligence (Slovenko, 1989).
In recent years, courts have demonstrated a willingness to compensate patients for nonphysical injuries that arise from psychotherapy. Therapists have an increased risk of liability under informed consent doctrine. The concept of informed consent is being applied increasingly to ‘nonmedical’ treatment situations. As the scientific study of psychotherapeutic efficacy goes forward, therapists are better able to inform patients about the qualitative and quantitative outcome data of alternative therapies.
Two distinct legal principles form the basis of the informed consent doctrine: the patient's right of self-determination and the therapist's duty as a fiduciary. A fiduciary acts for another person in a capacity of confidence or trust. The therapist has a legal duty to disclose the requisite facts to the patient about his or her condition. The purpose of the informed consent doctrine is twofold: to promote individual autonomy and to facilitate rational decision making (Appelbaum et al., 1987). Although informed consent is a legal requirement, it also has an ethical dimension that respects the patient's autonomy in healthcare decision making. Clinically, it promotes collaboration between therapists and patients (American Psychiatric Association, 1997).
Case example: A patient with a prior history of depression during stressful life situations desires to undertake insight psychotherapy. The therapist informs the prospective patient that insight psychotherapy can be stressful, possibly precipitating a depressive episode potential benefits are also discussed. The prospective patient considers the risks and benefits of insight psychotherapy. She desires to enter therapy, noting that she was able to function during prior depressive episodes without the benefit of treatment. The therapist and patient agree to an extended period of evaluation before a final decision is made to begin psychotherapy.
The essential elements of informed consent are competency, information, and voluntariness. The therapist assesses the patient's healthcare decision-making capacity. Competent informed consent also requires that reasonable information be disclosed to the patient. There is no consistently accepted set of information to disclose for any specific medical or psychiatric disorder or condition. Generally, the following information is provided:
diagnosis: description of disorder, condition, or problem
treatment: nature and purpose of the proposed treatment
consequences: risks and benefits of the proposed treatment
alternatives: reasonable alternatives to the proposed treatment, including risks and benefits
prognosis: expected but not guaranteed outcome with and without treatment.
An increasing number of courts have adopted the material-risk approach (reasonable-man standard). This standard imposes upon the therapist a duty to disclose all the information that a reasonable patient would need in order to make an informed decision about a procedure or treatment. This approach is more consistent with the ascendance of patient autonomy (Canterbury v. Spence, 1972). In a minority of jurisdictions, a truly patient-oriented standard is used, the so-called ‘subjective lay standard’ (what a particular patient would want to know). Furrow (1980) proposes the subjective lay standard of informing for psychotherapy because professional opinions about risks and benefits appear to be too uncertain and diverse. Moreover, patients may require quite specific information not ordinarily provided. For example, in a managed care setting, restrictions on psychotherapy visits may require the therapist to inform the patient that more sessions may be needed to treat his or her condition than are provided by insurance coverage. Beahrs and Gutheil (2001) recommend that, as a guiding principle, psychotherapists should convey information to a prospective patient that is material to the particular patient's decision.
Slovenko (1985) quotes Freud who advised against ‘lengthy preliminary discussions before the beginning of treatment.’ Freud felt that the patient should know of the difficulties and sacrifices of analytic treatment so that the patient would not be deprived ‘of any right to say later on that he had been inveigled into a treatment whose extent and implication he did not realize.’ Some psychodynamic therapists continue to express concern that sharing detailed psychological information about the assessment or the diagnosis may scuttle the fledgling psychotherapeutic process.
An initial period of evaluation allows the patient time to assess the therapist, the therapist's technique, and the interactional process between therapist and patient. A period of evaluation also allows the therapist time to make a reasonable diagnostic assessment and suitability for psychotherapy before committing to treat the patient. The nature of the patient's difficulties can be described in plain language using descriptive terms that form the basis of diagnostic nosology.
Anticipated benefits of treatment may be discussed as altering maladaptive defenses and resolution of underlying conflict, providing symptomatic relief, or instituting crisis intervention, according to the patient's clinical needs and situation. Obviously, no promises of cure can be made. Therapists who are prone to promising too much to patients should keep in mind Freud's well known comment that the object of psychoanalysis (therapy) is to substitute for neurotic misery ordinary human unhappiness, to temper therapeutic overzealousness. As treatment outcome studies become increasingly available, the findings can be shared with patients.
The risks of psychotherapy are more difficult to define when the evaluation reveals past regressive episodes occurring during a personal crisis. The therapist may want to consider with the patient the possibility of a similar recurrence during the course of psychotherapy. A history of serious psychosomatic illnesses, marked dysfunctional periods, or intense transference reactions toward others should alert the therapist to a possible recurrence of the patient's symptoms in psychotherapy. Previous episodes of regression provide indicia of potential risks to the patient. Although major life changes can occur as the result of psychotherapy, specific events such as divorce or occupational reverses that may seriously stress other family members usually are not foreseeable risks. Unpredictable events that are extremely traumatic may arise at anytime to destabilize a patient.
Prognostic statements should be made with great caution. The expected outcome with and without treatment of a particular mental disorder is extremely difficult, if not impossible, to determine. Many unforeseen life factors and the inherent course of any given mental disorder may determine outcome considerations. Spontaneous remissions are not uncommon. Nevertheless, certain mental conditions such as affective disorders and the schizophrenias have a recurrent, chronic course.
Alternative treatments should be discussed with patients. Although therapists may not be fully competent in using more than a few treatment approaches, they should be up to date in their knowledge of the standard treatments used by competent, ethical therapists. Therapists have an ethical and legal duty to stay abreast of new developments in their field. For example, the phobic patient may be treated by cognitive-behavioral therapy, psychodynamic therapy, medications, group therapy, or by a combination of therapeutic modalities. As more outcome studies become available, therapists will be able to better inform patients about the efficacy of specific treatments.
Many therapists employ a combination of treatment modalities. The therapist who primarily uses dynamic, insight-oriented psychotherapy should be reasonably knowledgeable about the methods, indications and contraindications of behavior therapy, cognitive therapy, medications, and group therapies. In Osheroff v. Chestnut Lodge (1985), the plaintiff claimed that he was inappropriately treated with psychotherapy instead of medication for depression. He alleged that the psychotherapy needlessly extended his hospital stay for many months, causing him emotional, professional, and financial harms. Patients have a right to know about alternative therapies that may be reasonably expected to help their condition. In malpractice cases, allegations of lack of informed consent usually accompany other claims of negligence.
Finally, the patient must be able to voluntarily consent or refuse the proposed treatment or proposed procedure. Coercion must not be used. Subtle differences exist between coercion and persuasion (Malcolm, 1986). Persuasion uses the patient's reasoning ability, while coercion undermines and manipulates the patient's ability to reason.
There are advantages and disadvantages to employing consent forms (Simon, 2001, pp. 82–3). Using forms alone makes obtaining informed consent more of an event than a process. Consent forms can introduce an adversarial tone to the therapist–patient interaction. Documenting the informed consent that occurred verbally with the patient is much more likely to obtain competent informed consent than a robotic ‘formed’ consent. Although a few states specify by statute that a written consent form be utilized; ordinarily, no legal requirement exists for a written consent form. Informed consent statutes in some states, however, do give written informed consent forms the status of presumptive evidence that competent informed consent was obtained (Simon, 1992, pp. 536–8).
Innovative therapies may be indicated when standard treatment methods fail (Simon, 1993). Innovation is very important for the development of new treatments that hold promise for the alleviation of mental suffering. Therapists should be aware of judicial decisions and regulations that govern innovative therapies. Patients must be informed for all foreseeable risks, including less risky, alternative treatments. Informed consent requires telling the patient that the therapy is untried, innovative and has possible unforeseeable risks. Written consent should be obtained for innovative therapies.
Innovative therapies, unless egregious, may fall within the ‘respected minority rule’ (Reisner and Slobgin, 1990). This rule states that therapists are free to choose from any of the available schools of therapy, even from those that most therapists would not use, provided a respected minority of therapists would employ the same therapies under similar circumstances.
The landmark psychiatric battery case is Hammer v. Rose (1960). Battery results from intentional, nonconsenting physical contact that would be offensive to a reasonable person. Dr John Rosen originated the innovative but controversial therapy—direct analysis—whereby schizophrenic patients were initially bombarded with id-type interpretations. The psychotherapist assumed took the position of an all-powerful parent who would use physical methods to make contact with severely regressed patients. The court stated that the beatings Alice Hammer received over the course of 7 years of treatment with Dr Rosen constituted improper treatment and malpractice.
In Abraham v. Zaslow (1972/1975), a 22-year-old graduate student agreed to undergo an experimental treatment called ‘rage reduction’ or Z-therapy. This treatment was designed primarily for autistic children. The patient is restrained, tickled, and poked when unsatisfactory answers are given to questions asked by the therapist. Ms Abraham was continually poked and abused for 10–12 hours, suffering extensive bruising and acute renal failure. She was awarded $170 000 in damages.
The United States Department of Health and Human Services (DHHS) (1981) has issued informed consent guidelines for research activities with mentally ill individuals. The DHHS disclosure requirements include: the fact and purposes of the proposed research; reasonably foreseeable risks; reasonably expected benefits; appropriate alternatives; a statement about the maintenance of confidentiality; an explanation about possible com-pensation if injury occurs in research involving more than minimal risks; information about the process of obtaining answers to pertinent questions; and a statement that participation is voluntary and refusal results in no penalties or loss of benefits.
To prove malpractice, the plaintiff (e.g., patient, family, or estate) must establish by a preponderance of the evidence (more likely than not) that:
A therapist–patient relationship existed creating a duty of care to the patient.
There was a deviation from the standard of care.
The patient was damaged.
The deviation directly caused the damage.
These elements of a malpractice claim are sometimes referred to as the four Ds. All elements must be present to pursue a successful malpractice claim. For example, a patient sues her therapist for going on vacation without having arranged for adequate coverage in his absence. The patient is involved in a serious automobile accident that she blames on being upset over the therapist ‘abandonment’ of her. Although the therapist deviated from the standard of care in not providing adequate coverage in his absence, he was not found to be the cause of the patient's automobile accident and the patient's injuries. Evidence was presented by the defense that the patient's first time use of cocaine while driving was the direct cause.
Establishing a general standard of care for therapists when so many schools of psychotherapy exist is very difficult. Therapists disagree among themselves concerning the indications and effectiveness of the many psychotherapeutic modalities now available.
In recent years, malpractice suits against therapists have increased substantially. Generally, legal liability in psychotherapy cases is based on negligence. Negligent psychotherapy results from the deviation in the standard of care that harms a patient. Intentional torts play a secondary role in litigation. The intentional torts are assault and battery, false imprisonment, invasion of right of privacy, misrepresentation or fraud, and the intentional infliction of emotional distress.
The most common malpractice suits against therapists claim negligence for suicides, boundary violations, and sexual misconduct.
Claims against therapists for suicide attempts generally allege failure to monitor, failure to reasonable assess suicide risk, failure to formulate and implement an appropriate treatment plan, and failure to hospitalize the patient, either voluntarily or involuntarily.
Patients who are at risk for suicide require the therapist to take full charge of the treatment and management of the case. Especially, in ‘split treatment arrangements’ where the psychiatrist provides medication and the therapist performs the psychotherapy, monitoring and treatment may become fragmented and ineffective for the patient at risk for suicide. Communication and collaboration between treaters are essential for the effective treatment and management of patients. Some patients at risk for suicide may not be suitable to ‘split treatment’ arrangements.
There is no standard of care for the predication of patient suicides. However, the standard of care does require that therapists perform adequate suicide risk assessments (Simon, 2000). Courts carefully scrutinize suicide cases to determine the reasonableness of the risk assessment process and whether the patient's suicide was foreseeable. Foreseeability is a probabilistic legal term of art, not a scientific construct.
Foreseeability is the reasonable anticipation that harm or injury is likely to result from certain acts or omissions (Black, 1990). Only the risk of suicide can be assessed. Therefore, only the risk of suicide is foreseeable. Foreseeability should not to be confused with predictability for which, as stated above, no professional standard exists. Foreseeability must be distinguished from preventability. In hindsight, a suicide may have been preventable but not foreseeable at the time of assessment. Suicide risk assessments, when properly performed, inform the appropriate treatment, safety, and overall management requirements of the patient. Suicide risk assessment is a process, not an event.
Most patients at risk of suicide are treated as outpatients. As determined by the patient's clinical condition and the level of suicide risk, the patient may be seen more frequently, medication increased or changed and situational adjustments made. If the patient is at high risk for suicide and acutely distressed, hospitalization is usually required. However, a patient at high risk for suicide may continue to be treated as an outpatient, if a solid thera-peutic alliance exists and a number of protective factors are present. Clinical judgment is determinative. In managed care settings, only patients with serious psychiatric conditions who are at high risk for harming themselves or others are hospitalized.
Involuntary hospitalization is a critical clinical–legal intervention for severely ill suicidal patients who refuse voluntary hospitalization. Some therapists fear damaging the therapeutic alliance by initiating certification of the patient for involuntary hospitalization. At this point, there may be little or no therapeutic alliance between therapist and patient when a very sick patient is refusing critical care. A battle over hospitalization may also emerge because of a therapist's intense negative countertransference. Inappropriate involuntary hospitalization of the patient may result.
Some therapists worry about being sued for false imprisonment. States have provisions in their commitment statutes that grant therapists immun-ity from liability, if reasonable judgment and good faith dictates petitioning for involuntary hospitalization. The therapist is much more likely to be sued for failure to involuntarily hospitalize a suicidal patient in critical need of treatment and protection, but who refuses voluntary hospitalization. Good clinical care, not fears of being sued, should direct the therapist's decision about involuntary hospitalization. In outpatient suicide cases, it is difficult for the plaintiff to prevail against the defendant therapist because the latter has much less control over the patient.
Maltsberger and Buie (1974) describe complex therapists’ reactions to suicidal patients, such as anger, despair, frustration, and hopelessness. Therapists may experience countertransferential hate toward the suicidal patient because the suicide of a patient is perceived as raising significant doubts about their competence. Abandonment of the patient may occur, substantially increasing the patient's risk for suicide. Negative countertransference is an important clinician factor that may increase the risk of patient suicide. Other clinician factors associated with increased risk for patient suicide include physical and mental impairment, ‘burn out,’ fatigue, indifference, and placing monetary considerations ahead of patient care (Simon, 2004).
Gabbard and Lester (1995) warn that the therapist may use the psychological defense of reaction formation in an effort to deny hostile feelings toward the suicidal patient. Another countertransference reaction is evident when the therapist assumes the role of the ‘good patient’ rescuer. The therapist feels responsible for the patient's life instead of maintaining a concerned clinical focus on treatment and management. The patient must take responsibility for his or her life, ultimately making the decision to live or die. Therapists cannot stop patients who are determined to commit suicide. Not surprisingly, the ‘love and save’ approach ends in futility and despair for the therapist, interferes with clinical judgment, dooms the therapy, and may increase the patient's risk for suicide.
A desperate therapist at an impasse with a suicidal patient may seek legal solutions. The focus shifts from the clinical stalemate to a hoped for legal resolution. Although legal consultation may be useful in certain situations, consultation with a respected colleague is often the best initial step in helping the therapist maintain clinical focus. Lawyers tend to be risk averse, providing competent legal opinions that may not necessarily be appropriate clinical interventions for the patient at risk for suicide. Verbal consultations should be documented. In addition, a written report should be requested from the consultant.
The treatment and management of patients at suicide risk can be one of the most difficult clinical challenges encountered in the therapist's practice. The strong emotional reactions evoked by the suicidal patient must be identified and managed. Most therapists cannot treat more than a few suicidal patients at any given time. The uncertainty of treatment outcome; the potentially devastating personal, professional, and legal consequences for the therapist; the intense anguish of bereft, angry suicide survivors—these and other factors can create anxiety that interferes with effective clinical care. Therapist must realistically gauge their ability to tolerate the inevitable anxieties and vicissitudes encountered in treating patients at risk for suicide (Simon, 1998).
Under the rubric of negligent psychotherapy, the most common allegations involve sexual and nonsexual boundary violations. The latter usually include business, employment, personal service, or social relationship with patients.
Treatment boundaries are set by the therapist that define and secure the therapist's professional relationship with the patient (Simon, 1992b). Once treatment boundaries are established, boundary issues arise from the patient's testing of treatment boundaries. Dealing with boundary issues is an important part of therapeutic work. Boundary violations, however, usually harm the therapy and the patient. Boundary crossings are less serious departures from boundary maintenance that can be rectified and become grist for the therapeutic mill (Gutheil and Gabbard, 1993).
Effective treatment boundaries define a reasonably fluctuating, neutral, safe place that enables the dynamic psychological interaction between therapist and patient to unfold. Boundary setting depends on the nature of the patient, the type of treatment, the personality, training and clinical experience of the therapist and the interaction style between patient and therapist. An absolutist position regarding treatment boundaries cannot be taken, so long as patients or their treatment is not harmed.
Boundary violations that are precursors to therapist–patient sex occur gradually. Sexual exploitation of patients by therapists has a ‘natural history’ of progressive personal involvement by the therapist with the patient that is remarkably similar from case to case (Simon, 1989). Gutheil and Simon (1995) posit that during the segment of therapy that occurs ‘between the chair and the door,’ patients and therapists are more vulnerable to committing boundary crossings and violations. They suggest that inchoate boundary violations first appear during this interval, providing an early warning sign for the therapist. The reader is referred to other works addressing the problem of treatment boundaries (Gabbard, 1989; Epstein, 1994; Pope, 1994).
Boundary violations that harm patients may lead to civil liability, criminal sanctions (sexual exploitation), and professional disciplinary actions. Boundary violations that lead to sexual and nonsexual exploitation of patients are often caused by the therapist's mismanagement of transference and countertransference feelings.
Courts may have difficulty understanding the clinical concepts of transference and countertransference in claims of harm from therapists’ boundary violations. This point is well illustrated in the case of Hess v. Frank (1975). The patient alleged that during a regularly scheduled session, “without just cause”, the psychiatrist became abusive to the patient. He uttered various words and phrases that the psychiatrist knew or should have known, in his professional capacity, would cause grave mental anguish and be injurious to the mental health of the patient. The alleged abusive statements were uttered during the course of an argument over fees as well as the appointment schedule. The patient sought $100 000 in damages.
The court dismissed the patient's case against the psychiatrist. The court held that the argument was outside of the professional treatment relationship. From a clinician's perspective, however, the court's position that discussions or even arguments about billing somehow exist outside the scope of therapy is a legal fiction. Scheduling and fee matters that arise in the course of therapy are initially treatment issues. The court stated: ‘The conduct complained of, however, was not part of the course of treatment and there is no claim or indication that defendant failed to provide medical services in accordance with accepted standards or that he did not exercise requisite skills in the treatment of the plaintiff.’ Apparently, the court did not consider the possibility that countertransference was the cause of patient mismanagement by the psychiatrist who, after treating the patient for 8 years, “without just cause”, became abusive to the patient.
Attention to early boundary violations can alert the therapist to reestablish appropriate treatment boundaries, obtain consultation, or, if necessary, refer the patient. The rule of abstinence is a basic principle underlying boundary maintenance. It states that the therapist must abstain from using the patient for the therapist's personal gratification. The therapist's main source of pleasure is derived from the professional gratification obtained from the psychotherapeutic process and the satisfaction gained in helping the patient. When the therapist's gratification is derived from a personal rather than a professional relationship with the patient, boundary violations invariably occur. However, some therapists do obtain gratification from the ‘personal’ aspects of the therapeutic relationship but carefully monitor countertransference problems to avoid any exploitation (personal communication, Glen O. Gabbard, M. D., November 3, 2002). Exploitation of a patient rarely occurs in the absence of other negligent practices and deviations in care.
Readings in the prevention of malpractice in psychotherapy include: recovered memories of sexual abuse (Gutheil and Simon, 1997); abandonment (Simon, 2001, pp. 21–2); split treatment (Meyer and Simon, 1999); breach of confidentiality (Slovenko, 1992); duty to warn and protect endangered third parties (Herbert and Young, 2002).
In psychotherapy, therapists try to help patients to better understand their problems and to learn more adaptive ways of coping. For therapists, understanding and coping with the legal requirements governing psychotherapeutic practice should facilitate the provision of good patient care. A working knowledge of the legal regulation of the mental health professions allows therapists to integrate clinical and legal issues, thereby avoiding unduly defensive practices that can inhibit the therapist's ability to conduct effective psychotherapy. Initially, legal issues should be addressed as treatment issues. Often, legal requirements can be handled in such a way as not to harm treatment and, whenever possible, to beneficially facilitate treatment.
Risk management is a reality of clinical practice. Clinically based risk management is patient centered, supporting the treatment process and the therapeutic alliance. It provides the therapist with a helpful measure of practical comfort. Unduly defensive practices must not be allowed to erode the therapist's affirmative professional, ethical, moral, and legal duty to provide adequate care to the patient. Knowledge and insight into the causes of litigation can help psychotherapists preserve the tranquility and composure so necessary for the practice of psychotherapy.