HEALTH LAW SUPPLEMENT Summer 2008

A change in the law for reporting child abuse and neglect in New York State. A change in the law took effect late last year . Prior to the change, mandated reporters at schools, hospitals, mental health clinics, and other institutional settings were required to report suspected abuse or neglect to a person designated by the institution who then would make the mandated report to the State Central Registry (SCR) of Child Protective Services (CPS). Now, mandated reporters must themselves make the report to SCR. Institutions are prohibited from requiring prior notice of reports from employees, from imposing conditions on reports, and from retaliating for them. The change is not intended to require more than one report. The purposes are to enhance the timeliness of reports, and to improve their accuracy by ensuring that first-hand reports are made whenever possible. Employees must still notify designated staff when or after a report has been made, and designated staff are then responsible for consequent internal administration and liaison with CPS. New York Social Service Law §413, Chapter 193 of the Laws of 2007.

Boundary crossings and violations: caution. An area of potential professional, ethical and legal risk for psychotherapists is non-sexual boundary violations. The “boundary” of psychotherapy is formed by the therapist’s implicit agreement to act (i) to benefit the patient (and no one else to the detriment of the patient) (ii) by providing the agreed upon professional service, and (iii) to be compensated through customary professional payment arrangements. Boundary violations may be singular, apparently innocuous and clinically justifiable (often called boundary “crossings”) or frequent, plainly exploitative and likely to be harmful to patients. Boundary crossings and violations often involve some type of dual relationship with a patient. Some actions are always improper. Others may be justifiable if certain criteria are met, but regardless, may still carry certain professional risks for therapists.

Practices that are always improper include: engaging in dual personal, social or business relationships with current patients or accepting as patients persons with whom the therapist currently has such relationships; collusion with insurance fraud even if by silence; and using information gained from patients for financial gain, for example, in the stock market.

Practices that may be permissible, depending on individual circumstances, include: accepting as payment in barter the patient’s services or something of indefinite value; touching patients other than handshakes; accepting or giving other than token gifts; accepting as new patients family members or close friends of current patients; accepting as patients persons with whom the therapist has had prior but since ended, personal, social or business relationships; seeing patients in both individual and couples or family therapy; serving as both evaluator of and therapist to a patient; self-disclosure to patients of the therapist’s personal problems; special treatment such as seeing the patient out of the office, extending the length of sessions, or forgiving or delaying payment; and making referrals from which the therapist stands to gain without having disclosed this to patients and having offered them other options which they feel free to choose.

Boundary violations involving dual relationships have the potential for harm to patients even though some may seem harmless or even helpful to patients at the time, e.g., helping patients financially. With any sort of dual relationship, even ones entered into with the best of intentions, patients can mistake the meaning of the therapist’s actions, with the result that they feel aggrieved when an attempt is made to re-establish customary boundaries for the therapeutic relationship. Practically, dual relationships give rise to lawsuits because attorneys for potential plaintiffs can easily obtain opinions from experts that the ethics of such actions are questionable, as indeed they are, and because they are tainted by the sensationalism that surrounds sexual boundary violations and the “slippery slope” that supposedly precedes them.

Questions to ask before permitting boundary crossings, or criteria for when boundary crossings might be allowable, are the following:

● Might this action impair the therapist’s professional objectivity?
● Might it interfere with or distort the therapy?
● Might confidentiality be threatened?
● Might it harm the patient?
● Is it in any way exploitative of the patient?
● Is it clinically contraindicated?
● Is there some way to achieve the end desired without taking this action?

Only if all of these questions are answered negatively should a boundary crossing be considered. The standard to use is whether any negative outcomes are reasonably foreseeable as a possible consequence of the crossing. Most of the time, it’s best to discuss the issues first with a consultant, and if the result of the consultation is that the crossing may be justifiable, then discuss the issues with the patient as concretely as possible. If the patient objects or equivocates, then the action should not be taken. If the patient agrees, then you still must interpose your judgment. Note in the patient’s clinical record that the issues have been discussed with the consultant and patient, their reactions, and all of the considerations, using the above criteria, for the decision. Sometimes, a consultation is not just recommended but critical: if a boundary crossing inures to the financial benefit of the therapist, this may be seen as tainting the therapist’s judgment in assessing it.

While the standard enunciated by ethics codes and licensing boards is reasonable foreseeability of adverse consequences, in my experience, the actual standard they impose is often one of strict liability where dual relationships are concerned. That is, if the patient is harmed or claims to have been harmed by a dual relationship, then regardless of the care taken by the therapist in deciding whether to proceed with the dual relationship, he or she will be found liable or negligent. This is the reason that dual relationships almost always carry some measure of professional risk for psychotherapists.

Suppose a former student requests therapy. The therapist first consults with the ethics committee of a local professional association and is told that the therapy may be conducted if no harm can be foreseen to the patient or to the therapeutic relationship. It would then be incumbent on the therapist to discuss with the patient all possible ramifications for the therapy of the prior teacher-student relationship. Would the former role of student prevent or hinder the development of a productive therapeutic alliance? Are the student’s expectations unrealistic because they’re based on the idealization of an admired teacher? Relatedly, is the student prone to splitting, suggestive of borderline qualities that might clinically contraindicate any boundary crossing? Does the prospective patient expect special treatment based on the prior relationship? Might the patient want to take another of the therapist’s courses in the future and be prevented from doing so? Will the therapist, as a former teacher, be making any future academic evaluations of the prospective patient? Might the patient wish at some point to have a letter of recommendation from the therapist as a former teacher?

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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