HEALTH LAW SUPPLEMENT Spring 2011

Supervision and Consultation: The Legal Differences: The training of psychotherapists includes clinical mentoring that is usually characterized as “supervision.” When a therapist who is independently licensed is seeking the mentoring, however, the relationship is more accurately characterized as “consultation” most of the time, although there are exceptions. Students, those working with Limited Permits in a profession, LMSW’s practicing clinical social work, and LCSW’s when gaining experience required for the additional “R” credential must all be supervised. Otherwise though, most mentoring relationships among mental health professionals are actually, from a legal perspective, consultative rather than supervisory.

There are important legal distinctions between supervision and consultation, especially in the area of legal liability. A consultative relationship poses less risk of legal liability to the consultant than a supervisory relationship. And contrariwise, a supervisory relationship offers greater protection to the supervisee.

A consultant who simply offers advice based upon information provided by a consulting colleague usually will not be subject to legal liability for the treatment of the colleague’s patient. The basis for the consultant’s lack of liability is his or her lack of control. The consulting clinician remains in control and retains the option to either follow the consultant’s advice or to disregard it. A consultant’s role is considered educational, and primarily for the benefit of the consulting colleague. It is only secondarily for the benefit of the patient. A consultant does not bill the patient and usually has no direct contact with the patient.

On the other hand, a supervisor often does assume responsibility for the evaluation, diagnosis, and treatment of patients of the supervisee. A supervisor undertakes a much greater role than a consultant in the treatment and progress of patients. If a supervisor and supervisee both expect the supervisee to rely on the supervisor’s specific recommendations regarding evaluation and treatment, then the supervisor may be liable to the patient, even if the supervisor has no direct contact with the patient. A supervisee ordinarily is not free to ignore the supervisor’s advice. Due to the expanded nature of the supervisor’s responsibilities, the law may view him or her as jointly or even primarily liable for services provided to the patient.

One New York court offered guidelines to distinguish consultative from supervisory roles. A consultant:
■does not know the patient or, often, even his or her identity;
■does not examine the patient;
■does not speak with the patient;
■is not referred the patient for in-person consultation or treatment by the consulting colleague;
■gives opinions only and directly to the consulting colleague; and
■gives recommendations for the consulting colleague to follow or not as the consulting colleague decides. (Gilinsky v. Indelicato, 894 F.Supp. 86, 92 , EDNY 1995)

Thus, between therapists, both of whom are licensed, most of what is called “supervision” is in fact, by legal definition, consultation. So:
■For consultants, it is legally wise to name and bill for your services as consultations if that is what they truly are. Keep in mind though that if you really act as a supervisor, you will be legally responsible to the patient regardless of what you call the relationship.
■But here’s some conflicting advice for supervisees. If you are relatively inexperienced, it may be to your advantage, in case your decisions are questioned in a legal proceeding, to present yourself as one who was following the directions of a supervisor. Your responsibility will be diluted and your supervisor will share liability and damages, if any are found.
■If you are a psychotherapist who hires other therapists as independent contractors, do not provide the independent contractor with supervision. (Consultation is acceptable, indeed is recommended or even required for certain fee arrangements, e.g., those involving fee-splitting between contractors of the same profession.) But presumably, you want the independent contractor to be solely responsible and liable for his or her actions to the fullest extent possible; don’t contradict that intention by stating in a written contract that you are supervising him or her.

Consultants should bear in mind that in acting and labeling themselves as such, although they may avoid liability to patients for the negligence of the consulting colleague, it is possible, albeit unlikely, that they may still be liable to the consulting colleague for negligence in consulting. Lawsuits by consulting colleagues against consultants are quite unusual, and the standard of care of consultants to consulting colleagues is different from and less than that involved in professional-patient relationships. Some courts have found that a consultant’s duty to a consulting colleague is to advise and make appropriate recommendations based solely on information provided by the consulting colleague, and not based on the patient’s actual condition or needs. Some courts have refused to find that medical consultants have any duty at all to their consulting colleagues. Still, it’s probably wise to avoid what are sometimes called “curbside consultations” with colleagues, informal consults for which liability is unlikely, but which can result in involvement in a lawsuit brought against the colleague by a patient.

Confidentiality and consent requirements are also implicated in supervisory and consultative relationships. Patients are usually informed of supervisory relationships and the identity of supervisors. Usually, patients need not be informed of consultative relationships because no identifying information about them is released to the consultant. There are tax ramifications as well: in most circumstances supervisees must be employees, while consultants may be independent contractors.

Whether consultation or supervision, documentation must be maintained by both parties. Notation of supervision or consultation should contain the date, time, issues, questions, suggestions and decisions. Please call our office if you’d like a template of a Consultation/Supervision Note.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFICS OF YOUR SITUATION.

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