Presented at the CAMFT 2004 Annual Conference
By Bonnie Benitez
former General Counsel
The following is a list of things therapists commonly do, or fail to do, which tend to create exposure to liability, complaints to licensing boards, and unnecessary conflict between therapists and their patients. The list is based upon the author's experience with CAMFT member questions, BBS complaints, and other information.
Number 10: Talking to Attorneys
As a general rule, therapists should not speak with their patients' attorneys or in anyway involve themselves in their patients' litigation. For some reason, many therapists have been lead to believe that they have an ethical or legal obligation to involve themselves in the legal disputes of their patients. Further, some therapists believe that they are required to be advocates for their patients, in a broad set of circumstances. However, the CAMFT Ethical Standards merely require that therapists "advocate for mental health care they believe will benefit their patients." And when appropriate, "challenge denials of care, or denials of payment for care, by managed care organizations, insurers, or other payers."
As it pertains to the legal matters of patients, the Ethical Standards require that therapists "recognize their role in the legal system and their duty to remain objective and truthful…avoid making misleading statements…base their opinions and conclusions on appropriate data…acknowledge the limits of their data or conclusions in order to avoid providing misleading testimony or reports…avoid, wherever possible, performing conflicting roles in legal proceedings and disclose any potential conflicts to prospective clients, to the courts, or to others as appropriate…remain objective and do not compromise their professional judgment or integrity. There are some exceptions to this rule, however, such as communicating with court appointed counsel representing a minor child, or discussing procedural issues regarding a subpoena with a patient's attorney, or even the opposing counsel.
Number 9: Failing to obtain written authorization from a patient before releasing confidential information
There is no such thing as verbal authorization/consent to release information. If you don't have it in writing, you really don't have it.
A sample authorization form is available in the members only section of the CAMFT website.
Number 8: Using clinical or diagnostic terms when referring to third parties
Although unintended, therapists will sometimes loosely use diagnostic terms to describe persons they have never evaluated or treated (e.g. "Your ex-wife sounds like she may have a borderline personality disorder" or "my supervisee is narcissistically wounded, and therefore…"
The CAMFT Ethical Standards make clear that therapists are not to "express professional opinions about an individual's mental or emotional condition unless they have conducted an examination of the individual, or unless they reveal the limits of the information upon which their professional opinions are based, with appropriate cautions as to the effects of such limited information upon their opinions."
Therapists in California have been disciplined for making such statements in court testimony and other documents.
Number 7: Failing to Properly Respond to a Subpoena
Therapists should be mindful that the patient is (almost always) the holder of the psychotherapistpatient privilege. The privilege does not belong to the therapist. And the patient (through his/her attorney) must act to assert the privilege, often by filing a motion to quash the subpoena with the court. This is not to say that the therapist has no responsibility when served with a subpoena, but ultimately, the patient and patient's attorney will decide, and instruct the therapist, as to whether the privilege will be asserted or waived.
There are several myths regarding subpoenas, including:
- A judge must sign a subpoena or I need not respond. Attorneys are officers of the court, and have the authority to issue subpoenas.
- Parents hold the psychotherapistpatient privilege for their minor children. Although there are some circumstances in which a parent could hold the psychotherapistpatient privilege for his/her minor child, this is usually not the case. Typically, a parent will be the holder of the privilege only when he/she has been appointed guardian ad litem in a particular case. A guardian ad litem is a special guardian, appointed by the court, to represent a minor, usually in a civil suit.
- I can submit a summary, in response to a subpoena for records, in lieu of my actual records. A subpoena is different than a patient's request for his/her records.
Number 6: Treating Minors Without Appropriate Consent
In most circumstances, it is wise for therapists to seek and obtain the consent of both parents prior to treating a child. This is generally true regardless of the marital status of the parents. Many therapists fail to require the consent of both parents when treating a child. This situation can have the unintended consequence of alienating the parent whose consent was not obtained. Therapists, and their minor patients, are best served when being aware and respectful of the rights and needs of both parents.
Number 5: Writing Letters
Approximately 90 percent of letters written by therapists should never have been written. Therapists are not required to write letters on behalf of their patients, and should seek legal consultation prior to agreeing to write any letter or report at the request of a patient or parent of a patient.
"To whom it may concern" letters should NEVER be written. Therapists should always know to whom they are addressing a letter, even if it is to the patient him/herself.
Assuming a letter is written, the content of letters should be limited to information about which the therapist has first-hand knowledge. Alternatively, the therapist should clarify the source of the information (e.g. "the patient reports…"). When writing letters, or making statements to third parties, therapists should avoid discussing or speculating about persons they have not assessed or treated, making custody or other recommendations, and signing declarations or affidavits drafted by someone else. Where possible, a therapist should merely provide the patient with a summary of treatment. The patient can then choose to share the summary with whomever he/she chooses.
Number 4: Treating Multiple Members of a Family in Conflictual Situations
As a general rule, therapists should avoid wearing multiple hats when working with families. For example: If you're the therapist for the mother, do not then become the therapist for the child. If you are treating an individual adult, do not then treat that patient with his/her spouse/partner. Be willing and able to refer.
Number 3: Poor Record Keeping
In 1999, the legislature put the final nail in the coffin of the "no records are good records" school of thought, when it added to the list of things that constitute unprofessional conduct. Business and Professions Code section 4982(v) defines as unprofessional conduct "failure to maintain records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered." No one can dictate exactly what a patient's records should contain. However, from a liability perspective, it is very important for therapists to include clinical process and treatment planning. In a nutshell, document what you are doing and why you are doing it.
Therapists should never alter their personal style, or omit relevant information from the record at a patient's request.
Be aware that your records should be your first and best defense against an allegation of unethical or unlawful conduct.
Number 2: Trying to Help Too Much
Take care to avoid the false notion "I'm the only one who can help this patient." Recognize when a patient will benefit from termination and referral to another therapist. Appreciate that your ability to help a patient is limited by professional boundaries. Understand not only the boundaries, but also the reason the boundaries exist. Be constantly vigilant regarding transference and countertransference issues. Know when to seek clinical consultation.
One of the ways therapists can avoid falling into the trap of helping too much is through clinical consultation. A trusted colleague or mentor, who is uninvolved with the case, may provide insight and guidance to a therapist who may have become too close. Regular participation in individual or group consultation is strongly encouraged throughout your professional career.
Number 1: Calling CAMFT After Taking Action
CAMFT members are entitled to an unlimited number of legal, ethical and business consultations. Our toll-free telephone number is (888) 892-2638. However, we may be unable to help you if you call us after you have done something that you shouldn't have.