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The Risky Business Of Risk Management
How risk management guidelines can increase risk
By Ofer Zur, Ph.D. To cite this page: Zur, O. (2007). The Risky Business Of Risk Management:
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One of the worst professional or ethical violations is that of permitting current risk-management principles to take precedence over human interventions. (Lazarus, 1994, p. 260)
Don't touch your clients! These don'ts and many others whisper to us every time we emerge from one more risk management workshop or ethics and law seminar. They haunt us as we read with trepidation a bulletin from our malpractice carrier or review one more attorney's column in our professional organization's newsletter. Recent graduates still tremble with fear remembering those ethics classes warning us of the dangers lying on our career paths that we must vigilantly avoid. Under the guise of risk management and self-protection, we are told never to touch beyond a handshake, never to disclose "too much", always to stay in the office and to avoid gifts and bartering. Watch out who we schedule as the last appointment of the day, be careful when we extend sessions beyond the 50-minute hour and always steer clear of dual relationships. Beware! The slightest deviation from these ersatz commandments will set us on the 'slippery slope' to perdition. Linda Jorgenson, a Cambridge, Massachusetts lawyer and member of the state legislative commission on sexual misconduct lists the following on her web site: A therapist may perform negligent acts that are not sexually oriented. For example, did the therapist have the patient perform services for the therapist such as performing office tasks, repairing personal property, baby-sitting, house cleaning, chauffeuring, writing or editing? Did the therapist treat the patient in a special way? Did the therapist frequently extend therapy sessions? Was the patient scheduled for the last appointment of the day? Did the therapist have frequent and lengthy telephone conversations with the patient? Did the therapist reduce normal fees? Did the therapist direct the patient's career, academic choices or personal life? Did the therapist invite the patient to join in extra-therapeutic activities, such as dining or social visits? (Jorgenson, 2004, Sec. 3 para 2.) This is an example of a personal injury attorney informing the public, potential litigating clients and/or therapists of what she calls, "negligent acts." I beg to differ - with these and many other risk management prohibitions, as we shall see. This paper critically examines how the concept of risk management has been articulated, disseminated and put into practice in psychotherapy. It explores its origin, its influence on psychotherapists' attitudes, its effect on therapists' behavior, its impact on clinical effectiveness and its effect on the field at large. The main concerns that have prompted this paper are what I see as the potentially devastating effects of risk management practices on psychotherapy practices. I believe that behaviors that are known to help clients, facilitate healing and increase therapeutic alliance are being eliminated and, in fact, criminalized (Zur, 2007a). Basic behavior, like touching a distressed client, accepting a simple Christmas gift, bartering with a cash-poor artist, providing pro-bono services to the poor, talking to a hardworking single mother late at night after she has put her children to bed or scheduling a person who works out of town as the last appointment of the day, have been deemed suspicious by risk management experts and attorneys. The real risk is that by following risk management advice, psychotherapists will attempt to protect themselves at the expense of their clients. In this paper, I readily acknowledge that therapists face a number of hazards in their line of work. Recognizing that some clients pose an imminent danger to themselves, to others and/or even to therapists, this paper neither denies that therapists face real risks nor opposes the idea that therapists should minimize the risk to their clients, the community and themselves. But this paper focuses on the appropriate and inappropriate, ethical and unethical and moral and immoral use of risk management approaches as promoted by many insurance companies, attorneys and a growing cadre of risk management experts. The paper also questions the effectiveness of the most commonly used risk management practices and goes on to explore whether it may put therapists at higher risk rather than lower. Finally, the paper offers guidelines for ethically and clinically responsible ways to minimize risk to psychotherapists without compromising clinical integrity.
The Concept of Risk Management Also relevant to the concept of risk management is the obvious fact that all actions involve some risk. Driving, taking a shower, practicing medicine or painting a house all involve some risk, however minor. Practicing psychotherapy is not any different. What is often ignored is the fact that inaction can be risky, as well. Avoiding certain foods or medication, neglecting to pay taxes, not your brushing teeth or buckling up are examples of inaction that may increase health or financial risks. Similarly, this paper argues that not making a needed home visit and avoiding touching or bartering with clients may also pose a risk. While risk management, in general, and particularly in psychotherapy, is undeniably reasonable, this paper will show that it has been largely implemented in an unreasonable manner. From the playground to medicine to psychotherapy, risk management has gone too far. Risk management in psychotherapy is an appropriate practice if it is done thoughtfully, employing critical thinking, applying sensible clinical and ethical judgment and assuring that the welfare of the client is the prime commitment. Doverspike (2004) describes an ideal situation where "Reasonable clinicians protect themselves by protecting their patients" (p. 210). This is easier said than done. This paper discusses these concerns: that risk management is now often regarded as the standard of care, that it is equated with the professional codes of ethics, that it is confused with state law, and that it has replaced clinical judgment. Additionally, this paper discusses the concern that paranoia and a passion for risk reduction have frequently induced therapists, often unethically, to eschew critical thinking, thus reducing risks at the expense of their clients' welfare. Further complicating the risk management issue is the disagreement among psychologists, counselors, analysts and psychiatrists as to what constitutes risk or threat in the first place. Tied to this lack of agreement is the prevalent failure to differentiate between clinically helpful boundary crossing and harmful boundary violation. For example, self-disclosure, a hug, flying with a client who suffers from fear of flying or a home visit to a bedridden client are viewed as boundary violations by traditional, psychoanalytically oriented therapists. They see such therapists' behaviors as not only risking clients but also, actually damaging to therapy and to clients (Simon, 1994; Langs, 1976, 1978). The prominent psychiatrist, Menninger, even asserts that physical contact with a patient is "evidence of incompetence or criminal ruthlessness of the analysts (cited in Horton, et. al., 1995, p. 444). On the other hand, the same therapists' behaviors are prescribed and endorsed, when appropriate, as legitimate clinical interventions by humanistic, cognitive-behavioral, feminist, family or group therapists. What constitutes risk or danger is apparently in the eyes of the beholder. (Lazarus & Zur, 2002; Williams, 1997, 2003). Risk management has been defined in more realistic and pragmatic terms by Gutheil and Gabbard (1993) and Williams (1997, 2000) as the course by which therapists refrain from implementing certain interventions because they may be misinterpreted and questioned by boards, ethics committees and courts. This approach is similar to what has also been called preventative medicine. These practices serve to protect the practitioners, not the consumers. The stated aim is to prevent or preemptively defend the health care provider against lawsuits, criminal charges or allegations by licensing boards or ethics committees. This approach seems to dominate all aspects of medicine, including behavioral health, and has evolved as a reaction to a litigious culture. In order to minimize risk, this approach advocates several reasonable steps that therapists should consider. These steps include the employment of good record keeping, use of clinical, ethical and legal consultation and establishing well-articulated treatment plans. However, this approach also advocates the avoidance of certain therapists' behaviors regardless of their scientific basis or clinical effectiveness. Topping the list of risk management behaviors to be avoided are: any form of touch, dual relationships, gifts, bartering, self-disclosure and any intervention that requires therapists to leave the office (Zur, 2007a).
From the Horse's Mouth "Risk management procedures can save a career by helping practitioners avoid the appearance of impropriety. It has become necessary to think legalistically about even the most seemingly unimportant interactions, because the mere hint of a perception of irregularity, residing as it does in the eye of the beholder, can lead to an accusation in today's cultural climate." (Adams, 2001, p. 276) The Risk of Risk Management
Williams (2004) notes three additional and important negative aspects of risk management, as follows:
In summary, current risk management policies pose several serious risks to our professional effectiveness. It may erode the foundation of healing, i.e., the therapeutic alliance, flexibility and creativity.
The Generation Gap and the Prevalence of Risk Management The biggest proponents of risk management are obviously the insurance companies that understandably are motivated to reduce the occurrences of lawsuits or board complaints. They promote the practice of defensive medicine through their own numerous risk management workshops and seminars. For example, the American Professional Agency, Inc., a professional liability insurance company, publishes a regular newsletter called, Insight: Safeguarding Psychologists Against Liability Risks. Psychotherapy Finance and other professional newsletters have regularly published risk management columns. Along the same lines, in the late 1990's, The Psychotherapist Risk Advisor was published. Many professional organizations have jumped on the risk management bandwagon. While some of the information they disseminate is helpful and informative, there is often a tinge of fear coloring parts of their newsletters, journals, books and seminars. Some psychotherapists' professional organizations have provided attorneys with regular monthly advice columns in their newsletters or journals. Within the field of psychology and counseling, we have seen the birth of a whole new industry comprised of post-graduate seminars, continuing education workshops and texts all engendered by the concept of risk management. Austin (1998) entitled his book, Danger for Therapists: How to Reduce Your Risk. Woody (1998), an attorney, has published several books on risk management, one of which is, Fifty Ways to Avoid Malpractice. Doverspike (1999) published a book titled, Ethical Risk Management: Guidelines for Practice. Hedges, et al 1997, published a book, that does not take a strict and rigid risk management approach but the title, nevertheless, is, Therapists At Risk: Perils of the Intimacy of the Psychotherapeutic Relationship. Adams (2001) uses a pen name in his book, On Your Side: Protecting your Mental Health Practice from Litigation. More recently, Younggren and Gottlieb (2004) publish an article title "Managing risk when contemplating multiple relationships" and Vandenhey et. al. (2003) wrote "Recommendations for Risk-Management Practices." The American Psychological Association Insurance Trust (APAIT) has been sponsoring numerous popular risk management continuing education workshops across the country. The National Association for the Advancement of Psychoanalysis mounted a conference in 2004 entitled, "Facing the Challenge of Liability in Psychotherapy." Most professional organizations' annual conferences include one or more risk management workshops. As risk management becomes more prevalent, its effect is clearly seen on newer and younger therapists. In the numerous "Ethics with Soul" workshops I have conducted across the country for the last fifteen years, I, like Williams (2003), have noted that older (non-analytically oriented) therapists seem to be less concerned about risk management practices than the young therapists and recent graduates. The survey by Borys and Pope (1989) found a significant relationship between therapists' years of experience in practice and their concerns with the ethics of maintaining dual professional roles with patients. Alarmingly, due to the present orientation of most graduate schools and their ethics professors, many of the newer therapists mistakenly believe that risk management practices are part of the codes of ethics, state laws and the standard of care.
Confusing Ethics, Law and Risk Management The American Psychological Association Insurance Trust (APAIT, 2004) issued the following statement relative to its position on risk management. It exemplifies how ethics and risk management have been intermingled in the classroom. The APA Insurance Trust recognizes the importance of a student's early exposure to the concept of ethics and risk management. Ethics courses have been an important part of graduate training in professional psychology. It is only recently, however, that we have begun to recognize that an ethical practice in psychology must also be a risk-managed practice. The APA Insurance Trust has provided risk management workshops, written materials, and phone consultation services for licensed psychologists. These practitioners are better informed about the legal and ethical complexities of modern-day practice. Based on the success of these early efforts, the APAIT Trustees, both practicing psychologists and educators in graduate professional psychology, acknowledged the importance of extending risk management information to graduate psychology programs. We then conceived the idea of creating instructional modules on issues in ethics and risk management that could assist faculty in bringing this important information to the students. (APAIT, 2004, p. 1. para 6) APAIT clearly states that, "It is only recently, however, that we have begun to recognize that an ethical practice in psychology must also be a risk-managed practice" (APAIT, 2004, p.1, para 6). While one can understand why an insurance company would advocate an overlap between ethics and risk management, we must also be careful that such fusion is not generalized to the entire field. Like many expert witnesses, many graduate and postgraduate continuing education courses do not differentiate between ethical principles, laws and risk management guidelines. The instructors of these courses are often attorneys whose focus is, predictably, the law and risk management rather than ethical and clinical considerations. They teach these constructs as if they were one, thus indoctrinating students in this defensive professionalism. Another example comes from Grosso's (1997) ethics text in which he quotes the position of attorney Richard Lesley, the former renowned legal counsel for the California Association of Marriage and Family Therapists (CAMFT), on dual relationships, saying, "If you have to ask, don't do it!" (p.18). Obviously, this advice is in direct contrast to most clinical and ethical guidelines that encourage therapists to routinely seek advice, consultation and supervision on complex or unusual situations. Grosso reflects on this advice and states: "Though some may experience this approach as severe, it sure is preventive in scope" (p.18). Woody (1997) in his book, Legally Safe Mental Health Practice, gives numerous pieces of clinical advice, such as: "All gifts should be avoided because gift giving redefines the relationship" (p.58). Another "legally safe' and often impossible and clinically ill-advised stricture is about small town dual relationships where he states, "The risk will exist, and there is no safe solution except to serve as a referral source when a dual relationship is apparent." Again and again, we see how clinical advice is confused with risk management advice. In summary, most ethics, legal and risk management literature seem to confuse the legal, ethical and clinical domains and treat them as one. As an unwanted result, risk management is being confused with the standard of care. What is lacking is a clear differentiation between these domains and a way to attend to them separately. When such differentiation takes place, one may find that tensions and conflicts are likely to arise in situations where the ethics and law clash or the clinical and risk management approaches are in opposition. Such tensions or conflicts are inevitable and should not be circumvented by endless numbers of prohibitions. These tensions, while complex, ought to lead to a creative inquiry based on critical thinking and awareness of the differences among these domains. When this process is well articulated and guided by what is best for the client, it is very likely to lead to a creative solution that ultimately will also protect thoughtful and ethical clinicians.
Risk Management vs. Clinical Effectiveness: A Flasher in Alaska For example, no one that I am aware of disputes the fact that touch is one of the most elementary ways that humans relate to each other and is also a powerful method for healing (Field, 1998; Hunter & Struve, 1998; Montagu, 1952; Smith, Clance & Imes, 1998). Nevertheless, Gutheil and Gabbard (1993) claim that, "From the viewpoint of current risk-management principles, a handshake is about the limit of social physical contact at this time" (p. 195). In other words, regardless of the enormous healing and therapeutic potential of touch, therapists are instructed to avoid it in order to protect themselves despite any benefits their clients might derive (Nordmarken & Zur, 2005). Obviously, touch is only one of many interventions frowned upon by risk management experts even though they are known to be clinically effective. Except for strict psychoanalysts, very few would challenge the fact that self-disclosure is a highly effective way to help some clients relate to us therapists as full human beings and to learn from us through modeling, a proven scientific cognitive-behavioral intervention (Lazarus & Zur, 2002). No one, even the strict analysts, challenges the indisputable fact that a home visit is, at times, the only way to care for the elderly, the sick or those who are home-bound due to severe agoraphobia. Very few will disagree that a simple gift can be an important way for a client to express gratitude and connectivity, especially in the humanistic or feminist-oriented therapies and in many non-European cultures (Zur, 2007b). Nevertheless, we have been frightened out of all of these and many other behaviors by the so-called "risk management" experts. Cognitive Dissonance theory (Festinger, 1957) can further explain why therapists comply so readily with risk management practices. The fear of licensing boards, attorneys and litigation has led most therapists to abide by risk management guidelines and to adhere to only-in-the-office, detached therapy. As the Cognitive Dissonance theory would predict, such fear-based avoidance behaviors also alter clinicians' attitudes towards risk management practices. In order to justify their compliance with rigid rules, even clinicians who do not believe in them will, according to this theory, ultimately come to view them as helpful and appropriate. Consent, in this case, has been manufactured by instilling fear; this results in alteration of behavior and the subsequent change of attitudes to justify the behavior. The detrimental effect of risk management on clinical work is, in fact, significant. For example, flying with a client who has a fear of flying is a mandated exposure-intervention to the behavioral therapist, but a no-no from a risk management point of view because is involves an out-of-office experience (Zur, 2001). A nature walk with a depressed client might be part of a strategically planned intervention for a behavioral or biologically based therapist, but another no-no from a risk management point of view. Staying in the office regardless of the presenting problem may seem right to analysts, ethicists or attorneys, but may not help those who are home-bound or suffering from agoraphobia, social phobia, fear of flying or depression. Treating these clients often requires leaving the office and going to open places, mixing with crowds, getting on an airplane or making a home visit. Practicing risk management by staying in the office - aloof and reserved - is like the story about the flasher in Alaska - it was too cold to flash, so he just described it. It didn't work for the flasher and it doesn't work for our clients. The conflict between fear-inducing messages by attorneys and risk management experts and interventions beneficial to clients seems to be at the heart of the imbroglio in the ethics of risk management. As Lazarus' asserts in the opening quote of this paper, "One of the worst professional or ethical violations is that of permitting current risk-management principles to take precedence over human interventions" (1994, p. 260).
The Frightening Power of Fear Fear is often invoked in texts, lectures and seminars by way of clinical vignettes. These vignettes typically describe an innocent, well-meaning, caring therapist who sincerely but naively tries to help a client in any way possible. However, by not following risk management practices of physically and emotionally distant, only-in-the-office therapy, they end up entangled with their clients in an unprofessional and messy web. As a consequence, these well-meaning therapists find themselves enmeshed in lengthy administrative, civil or criminal litigation and ultimately lose their licenses, professional standing and their life savings. The literature is filled with hundreds and probably thousands of such vignettes. Koocher and Keith-Spiegle (1998) organized their entire widely read ethics text on such vignettes. In the same way, Grosso, (1997), Nagy (2000) and many others use such fear-inducing vignettes to frighten therapists into compliance. Similarly, risk management and ethics classes are filled with such frightening vignettes aimed at influencing therapists to comply with risk management principles. Williams (2004) eloquently articulated the relationships between fear and risk management practices: As I have discussed elsewhere (Williams, 2000), the actual likelihood of a lawsuit or licensing complaint for any given practitioner is very low. Because these high cost events are unlikely ever to occur in a given practitioner's career, the stage is set for psychotherapists to engage in various superstitious behaviors. Hence, the therapist who curtails hugging his or her patients, for example, may well believe that this risk management decision will have prevented a lawsuit over the course of his or her career. In fact, that psychotherapist may never have been sued regardless of whether or not risk management changes were made to his or her practice. Many psychotherapists who currently believe that they are protecting themselves with risk management restrictions to their practices may be doing nothing more effective than throwing salt over their shoulders. Because the likelihood of a suit is so low, and because the risk management rhetoric is so prevalent these days, one may be too easily convinced that risk management is highly effective. Risk management behavior, like all phobic avoidance behavior, becomes its own reward-convincing the phobic individual that the avoidant behavior (e.g., the flight phobic individual's not getting on the airplane) has averted catastrophe (p. 202). In summary, fear is the strongest motivator. The risk management industry has successfully struck fear into the hearts of many, if not most, clinicians. They, in turn, are wedded to phobic avoidance behavior that gives them the illusion of protection and safety. While most paranoid people who engage in such behaviors primarily hurt themselves, in the case of psychotherapists, they primarily hurt their clients by providing sub-standard care.
A Culture of (Litigating) Victims Flowing directly from this trend, fear-induced risk management has driven physicians to practice "defensive medicine' and to routinely order a huge number of diagnostic tests, such as lab and radiology procedures, not because they believe they are medically necessary but as part of their risk management strategy. The rationale is that the physician will not be accused of having failed to do everything in his power to rule out even the most unlikely diagnosis. Some estimate that doctors waste a shocking amount - between $50 to $100 billion annually - on defensive medicine (Taylor & Thomas, 2003). Even worse, as previously quoted, some also estimate that this is the amount that could buy health insurance for the forty million uninsured Americans. While many attorneys laugh all the way to the bank, our risk management-intoxicated, phobic culture ends up settling for inferior care of every kind; children are deprived of touch and opportunities for play; spiraling medical costs continue to burden the country; and mental health clients often receive sub-standard care.
Forces Behind Risk Management
In summary, risk management practices have been supported and promoted by four elements, each of which is to some degree self-serving. The insurance companies would like to save money, many attorneys have fueled the litigation culture as it serves them financially, many expert witnesses have a financial, theoretical-ideological and/or professional investment in their stated position, and many psychotherapists, while primarily operating out of fear and ignorance, are also likely to benefit financially, emotionally and professionally from the increased isolation advocated by risk management guidelines. Concern with Boundaries Risk management experts have been influenced primarily by psychoanalysis and its rigid attitude towards any type of boundary crossing, such as non-sexual touch, self-disclosure or out-of-office experiences (Zur, 2007a). Most traditional analysts conceive boundary crossings to be intrinsically negative and invariably to interfere with and undermine clinical work (Epstein & Simon, 1990; Langs, 1976; Simon, 1992). According to traditional analysts, effective management of transference and other therapeutic work requires clear and consistent boundaries that enable the therapist to preserve the analytic frame of therapy (Langs, 1988). Transgressions that detract from therapists' neutrality are said to contaminate the transference and hence are a detriment to analysis. Langs (1976) is an avid believer in the necessity of unyielding boundaries for therapeutic progress. His work has been widely quoted by ethicists, risk management experts and those who view dual relationships as harmful. He asserts that "poor boundary management" impedes transference work and has other serious ramifications, such as the dilution of the therapist's influence. Simon (1995) operates from a similar perspective and has numerous publications that glorify the case for rigid boundaries. Adhering to traditional analytic principles, his main guidelines state: Maintain therapist neutrality. Foster psychological separateness of the patient. Obtain informed consent for treatment and procedures. Interact only verbally with clients. Ensure no previous, current, or future personal relationships with patients. Minimize physical contact. Preserve relative anonymity of the therapist. (Simon, 1994, p. 514) The concern with boundaries is not limited to analytically oriented therapists. Most ethics texts also advocate rigorous adherence to strict boundaries. Koocher and Keith-Spiegel (1998) claim in their widely used ethics text, " . . . we are convinced that lax professional boundaries are often a precursor of exploitation, confusion and loss of objectivity" (p. 171). Borys & Pope (1989), Brown (1985), Kagle & Geibelhausen (1994), Katherine (1993), Kitchener (1988), Pope and Vasquez (1998), Simon (1995), Sonne (1994) and many others, generally view professional distance between therapist and client as essential, indeed, as a sine qua non for effective clinical work. Risk management proponents, like their analytic colleagues have consistently failed to distinguish between boundary crossings and boundary violations. Boundary violations refer to actions on the part of the therapist that are harmful, exploitative and in direct conflict with the preservation of clients' dignity and the integrity of the therapeutic process. Examples of boundary violations are sexual or financial exploitation of clients. A boundary crossing is a benign, and often beneficial departure from traditional therapeutic settings or constraints. Examples of boundary crossings are: making home visits to a bedridden client; taking a plane ride with a client who has a fear of flying; attending a client's wedding, bar mitzvah, or other function; or conducting therapy while walking on a trail with a person who requests it and seems to benefit from it. Risk management experts have also failed to recognize that rigid boundaries often conflict with acting in a manner that is clinically helpful to clients. Rigidity, distance and coldness are incompatible with healing. Lambert (1992), Williams (2003) and many others affirm, through outcome research, the importance of rapport and warmth for effective therapy. Boundary crossings are likely to increase familiarity, understanding and connection and hence increase the likelihood of success for the clinical work. The exclusive reliance of risk management on analytic theory has resulted in the avoidance of virtually all boundary crossings and consequently has been detrimental to the overall impact of psychotherapy. Behavioral, cognitive-behavioral, humanistic, group, family and existential therapeutic orientations are the most practiced orientations today. These treatment approaches tend to endorse what are considered clear boundary violations by most ethicists, psychoanalysts and risk management advocates (Williams, 1997). In fact, feminist, humanistic and existential orientations view the tearing down of artificial boundaries as essential for therapeutic effectiveness and healing (Greenspan, 1995). Another obvious fact that has eluded most risk management experts is that the maintenance of rigid boundaries between therapists and patients in many close-knit communities is unrealistic and impossible. These communities include the military (Hines, Ader, Chang, & Rundell, 1998; Johnson, 1995; Staal & King, 2000), rural (Hargrove, 1986; Jennings, 1992; Schank & Skovholt, 1997), religious (Geyer, 1994; Montgomery & DeBell, 1997), feminist (Greenspan, 1995; Lerman & Porter, 1990; Stockman, 1990), gay (Brown, 1991; Smith, 1990), and ethnic minorities (Sears, 1990). Social norms in these communities include flexible and permeable boundaries and often favor mutuality between professionals, including therapists, and their clients. In summary, the unduly restrictive risk management, analytically based emphasis on clear, rigid and inflexible boundaries often interferes with sound clinical judgment, which ought, on the contrary, to be flexible and personally tailored to clients' needs rather than to therapists' dogmas or fears. The biggest risk of risk management is that it may impose an analytic standard on the entire field.
Out-of-Office Experiences Zur (2001) published a paper entitled, Out-of-Office Experience: The paper attempts to shed a new light on the rarely discussed issue of deliberate and strategic crossing of the office boundaries. It identifies three types of out-of-office experiences. The first type is where the out-of-office experience is part of a considered, carefully constructed, research-based, treatment plan. Here are a couple of vignettes illustrating the argument. This is the case of a woman, age 30, who is now my patient, who lost her first and only infant son in a drunk driving accident. At the time of this tragedy, the pain of her loss was, of course, immense. She could not stop crying and the pain seemed unbearable. Her family was aware that she was contemplating an escape from her agony through suicide. At their insistence, she agreed to an emergency appointment with a psychiatrist. In this grief-stricken state, barely able to stand, she entered the doctor's office and sobbed uncontrollably. In her desperation and isolation she begged the psychiatrist to hold her. He instructed her to sit down and explained that therapy is about talking, not touching, and cited something about professional boundaries. At the end of the session, he pulled out his prescription pad, prescribed Valium for her and set an appointment for a couple of days later. Eight years later, addicted to Valium and alcohol, divorced and with two failed rehab programs behind her, she began therapy with me. After an intense few months of therapy, we went to her son's grave. It was the first time she had ever visited the grave. There we stood, holding each other tight and both weeping. We stood there for a long time as she cried and I cried. She had finally begun facing her baby's death and mourning for him and grieving for the years lost in drugged denial. That psychiatrist followed risk management guidelines to perfection. He took the "safe" path that forbids touch. In his mind, he probably also followed the dictum of "do no harm" when he refused to hold her in her grief. However, undoubtedly, by practicing risk management, adhering to the "no touch" dogma, he inflicted needless additional suffering on this woman. He sacrificed his humanity and the core of his professional being to the demands of a heartless and destructive protocol. Following are several more examples, taken from the Zur (2001) paper, illustrating situations where out-of-office experiences are carried out as part of a treatment plan: By the time he sought my services, John was on the brink of bankruptcy; his business was suffering gravely due to his debilitating fear of flying. I outlined behavioral, biological, and psychodynamic treatment options for him. His sense of urgency induced him to start with systematic desensitization. Following the standard behavioral protocol, I introduced him to gradual, progressive exposures to anxiety-eliciting images culminating with an in-vivo experience of flying. To carry out this last step, he booked us on a round trip flight from San Francisco to Los Angeles with an hour layover in LA. He was able to fly thereafter and salvaged his business. The second type is where the out-of-office experience is geared to enhance therapeutic effectiveness. Here are a couple of vignettes from Zur's (2001) paper exemplifying this approach: After three months of pre-marital, system-based therapy, a couple invited me to their wedding. I accepted the invitation and was surprised and honored when they publicly acknowledged my role in cementing their nuptial commitment. The third type of out-of-office experience is comprised of encounters that naturally occur as part of normal living in one's community. While the first two types do not constitute dual relationships, this third one does. Following are a couple of examples of this approach taken from the Zur (2001) paper: Susan and I have children the same age. We have chaperoned field trips and sat on committees together at school. At the outset of therapy, we discussed the complexities and potential difficulties of our multiple relationships. She made it clear that she chose me because she knew and trusted me and appreciated my parenting methods and the importance I attach to marriage, family and community. She thought that my knowledge of her would speed up therapy. The daily "Good morning" greetings at school neither interfered with therapy, which progressed well, nor with psychodynamic and transference work. In summary, therapists must avoid leaving the office if there are compelling clinical, ethical or safety reasons. As Lazarus and Zur (2002) and Zur (2007a) emphasized, crossing boundaries with a borderline or highly paranoid client is often ill advised. Of course, if leaving the office causes the client embarrassment, inappropriately revealing the fact that they are in treatment, or if it may be harmful in any other way, it should be avoided. The decision must not be based on fear or risk management or analytical advice, such as that given by Simon (1991) and various risk management experts, but founded rather on clinical and ethical judgment.
Slippery Slope - Sloppy thinking Kenneth Pope, a psychologist who has almost single-handedly popularized the notion of the slippery slope and risk management, makes a statement that has been confused with the standard of care: " . . . non-sexual dual relationships, while not unethical and harmful per se, foster sexual dual relationships" (1990-b, p. 688). Similarly, Strasburger et. al., (1992) conclude, "Obviously, the best advice to therapists is not to start (down) the slippery slope, and to avoid boundary violations or dual relationships with patients." (p. 547-548). Also in agreement is Simon (1991), who decrees that: "The boundary violation precursors of therapist-patient sex can be as psychologically damaging as the actual sexual involvement itself" (p. 614). These poignant restrictive statements summarize the risk management stance that the chance of exploitation and harm is significantly reduced or nullified by simply refraining from engaging in any boundary crossing regardless of its clinical effectiveness. A careful review of the 'slippery slope' argument reveals that it is founded primarily on the paranoid assumption that any boundary crossing, however trivial, inevitably leads to boundary violations and sex (Lazarus & Zur, 2002; Zur (2007a). To assert that self-disclosure is likely to lead to social relationships, that an appropriate hug is most likely to end with intercourse or accepting a gift is the first step towards inevitable business relationships is irrational and illogical. Sonne (1994) discusses how a therapist and client who are sports teammates can easily move their relationship to encompass activities, such as carpooling or drinking. She concludes that, "With the blurring of the expected functions and responsibilities of the therapist and client comes the breakdown of the boundaries of the professional relationship itself" (p. 338). The risk management literature is saturated with articles and books describing therapists' behaviors (e.g. self-disclosure, hugs, home visits, socializing, longer sessions, lunching, exchanging gifts, walks, playing in recreational leagues) that the authors contend are precursors to or on the slippery slope to sexual or other harmful dual relationships (Austin, 1998; Borys & Pope, 1989; Craig, 1991; Kitchener, 1996; Keith-Spiegel & Koocher, 1985; Lakin, 1991; Pope, 1991; Pope & Vasquez, 1998; Rutter, 1989; St. Germaine, 1996). This is a part of the more widespread cultural and professional problem which includes risk management experts' tendency to sexualize all boundaries (Dineen, 1996). Woody (1998) asserts, "In order to minimize the risk of sexual conduct, policies must prohibit a practitioner from having any contact with the client outside the treatment context and must preclude any type of dual relationships" (p. 188). The 'slippery slope' argument is even more pronounced in the work of Evans (1997), who contends that from an ethical, legal and clinical perspective, non-sexual and sexual dual relationships are absolutely equal and ought to be dealt with in the same manner. In a critical examination of the slippery slope argument, Zur (2000) reflects that to assert that self-disclosure, a home visit, a hug or accepting a gift are actions likely to lead to sex is like saying that doctors' visits cause death because most people see a doctor before they die. Lazarus calls this thinking "an extreme form of syllogistic reasoning" (1994, p. 257). We learn in school that sequential statistical relationships (correlations) cannot simply be translated into causal ones. Despite the popularity of the term, the 'slippery slope' is a paranoid, baseless and illogical construct claiming that any deviation from risk management or rigid analytic guidelines is likely to lead to harm, exploitation and sex.
Transference Abuse Jorgenson, an attorney, and her colleagues (Jorgenson, et. al., 1977) state that, "Negligently mishandling the transference phenomenon can also result in civil liability for therapists and other health care professionals" (p. 59). They cite an example where the court stated that the plaintiff, Dr. Freeman, departed from "recognized professional standards" (p. 59) when "He mishandled the transference phenomenon" (p. 59). What is shocking is that a pure psychoanalytic theoretical construct, such as transference is being used as a weapon against therapists who are neither trained in nor practice psychoanalysis. As Gutheil (1989) has pointed out: It seems that professionals who belong to a school of thought that rejects the idea of transference, behaviorists, or psychiatrists who provide only drug treatment, are being held to a standard of care they do not acknowledge. (p. 31) At the heart of the problem are attorneys and boards who hire psychoanalytic expert witnesses to inform the courts and the boards about the standard of care (Gutheil, 1989; Lazarus & Zur, 2002; Williams, 1997). They convince courts and boards that the standard of professional psychotherapeutic care is indeed similar to the analytic guidelines. They ignore the fact that most psychotherapists in the US are not psychoanalytically oriented (Williams, 1997) and that these therapists do not utilize the construct of transference in their work. As a result, therapists are unjustly convicted, fear reigns and the extreme/paranoid form of risk management flourishes.
The Codes of Ethics and Risk Management Following is a brief summary of how the different codes of ethics relate to some of the most important elements of risk management, such as dual relationships, bartering, touch and boundaries in therapy. Codes of Ethics on Dual Relationships: The National Association of Social Workers (NASW) Code of Ethics (1999), Standard 1.06.c, states: "In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries. (Conflict of Interest Section, para 3). California Association of Marriage and Family Therapists (CAMFT) Ethical Standards for Marriage and Family Therapists (1997), Section 1.2 states: "Not all dual relationships are unethical, and some dual relationships cannot be avoided. a dual relationship cannot be avoided, therapists take appropriate professional precautions to insure that judgment is not impaired and that no exploitation occurs." As the above clearly demonstrates, among the codes of all major psychotherapists' organizations, there is no blanket prohibition of non-sexual dual relationships. Many risk management principles falsely imply that their dual relationship prohibition guidelines are based on the codes of ethics. As this section clearly documents, they are not. There are unified principles among the codes of ethics of all major professional organizations concerning dual relationships in psychotherapy. Once the hindering factors of misinformation and prejudice are discarded, the platform of these codes is clear: a. Sexual dual relationships with present clients are always unethical. b. Non-sexual dual relationships are not always avoidable. c. Non-sexual dual relationships are not always unethical. d. Therapists must avoid only the dual relationships that might impair their judgment and objectivity, interfere with performing therapy or supervision effectively or harm or exploit patients. Codes of Ethics on Bartering: California Association of Marriage and Family Therapists (CAMFT) 2002 Code of Ethical Standards for Marriage and Family Therapists refers to bartering of services in section 1, Responsibility to Patients, where it states in section 9.5: "Marriage and family therapists ordinarily refrain from accepting goods, services, or other non-monetary remuneration from patients in return for professional services. Such arrangements often create conflicts and may lead to exploitation or distortion of the professional relationship" (CAMFT 2002, Section 1, para 5). The National Association of Social Workers (NASW) 1999 Code of Ethics in section 1.13, Payment for Services, provides the following lengthy paragraph about bartering: "Social workers should avoid accepting goods or services from clients as payment for professional services. Bartering arrangements, particularly involving services, create the potential for conflicts of interest, exploitation, and inappropriate boundaries in social workers' relationships with clients. Social workers should explore and may participate in bartering only in very limited circumstances when it can be demonstrated that such arrangements are an accepted practice among professionals in the local community, considered to be essential for the provision of services, negotiated without coercion, and entered into at the client's initiative and with the client's informed consent. Social workers who accept goods or services from clients as payment for professional services assume the full burden of demonstrating that this arrangement will not be detrimental to the client or the professional relationship" (Section 1.13, para 2). Like so many other professional codes, the above, strongly cautious statement gives a double message. On the one hand the code surprisingly forbids bartering of services, (which creates dual relationships) and on the other it reluctantly allows it acknowledging that it may be appropriate under specified circumstances. The above statement on bartering seems to be in direct contrast with the statement regarding Section 1.05, Cultural Competence and Social Diversity, which states: "(a) Social workers should understand culture and its function in human behavior and society, recognizing the strengths that exist in all cultures. (b) Social workers should have a knowledge base of their clients' cultures and be able to demonstrate competence in the provision of services that are sensitive to clients' culture and to differences among people and cultural groups" (NASW, 1999, Section 1.05 para 1-4). In summary, while the most recent APA Code of Ethics is more accepting of bartering practices, the CAMFT and NASW codes are more wary of it. These codes, like most other codes reluctantly face the reality that bartering is a common and normal arrangement in many communities and cultures and can be the only way that cash poor clients can get counseling or therapy. Consequently, they grudgingly imply that bartering may not always be avoided and give certain conditions when bartering may be acceptable. These provisions usually include an assurance of what is obvious, i.e., that the bartering is acceptable if it is not exploitative or potentially harmful to clients.
Codes of Ethics on Non-Sexual Touch: The National Association of Social Workers (NASW) Code of Ethics (1999): Standard 1.10 Physical Contact: "Social workers should not engage in physical contact with clients when there is a possibility of psychological harm to the client as a result of the contact (such as cradling or caressing clients). Social workers who engage in appropriate physical contact with clients are responsible for setting clear, appropriate, and culturally sensitive boundaries that govern such physical contact." Apparently, none of the above codes, nor most other professional codes, set forth a clear prohibition of non-sexual physical touch in psychotherapy.
Codes of Ethics on Boundaries:
Ethics Codes Online: Following are direct links to the online texts of
In response to many concerns that the prior code of ethics could too easily be inappropriately aggressively over-interpreted, those responsible for revising and adopting the current American Psychological Association (APA) Code of Ethics of 2002 attempted to reduce the ambiguity and more explicitly define illusive terms, such as "reasonably", "appropriate" or "potentially," that have troubled therapists for quite some time. An example of how such terms currently appear in the code is Section 3.05 on Multiple Relationships of the American Psychological Association (APA) Ethical Principles of Psychologists and Code of Conduct (2002), which states: "A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist's objectivity . . ." The question that haunted psychologists and other therapists has been "reasonably" according to whom? Over the years many risk management specialists, attorneys and expert witnesses have told licensing boards and courts that some interventions often used by behavioral and humanistic practitioners are unreasonable or below the usual professional standard of care (Williams, 1997, 2000). Finally, the 2002 revision of the APA code, in its section of Introduction and Applicability, has shed some light on these terms: As used in this Ethics Code, the term reasonable means the prevailing professional judgment of psychologists engaged in similar activities in similar circumstances, given the knowledge the psychologist had or should have had at the time. (par. 5). The importance of this new section is that it will, hopefully, reduce the injustice by focusing on the testimony of experts familiar with ethical principles and the standard of care in the specific practice at hand. Many people hope that this paragraph will prevent inappropriate criticism of rural therapists who inevitably have routine social encounters with their clients; behavioral therapists who accompany clients experiencing fear of flying on board a plane; humanistic psychologists who hug their clients supportively; or therapists who made home visits. According to the new code, complaints against practitioners should no longer judged by rigid and arbitrary analytic or risk management guidelines but must be evaluated in the context of standards and practices commonly applied by therapists with similar orientation working in comparable types of situations and communities. It will be up to the test of time to see if so-called expert-psychologists who continue to apply rigid, iconoclastic, analytic or risk management based criticism or employ excessively narrow ethical lenses will be deemed unethical and sanctioned accordingly.
Standard of Care and Risk Management The standard of care in courts and licensing board hearings is primarily determined by testimonies from expert witnesses. Attorneys on both sides often present conflicting expert testimonies about the standard of care. Adding to the complexity, in recent years one of the biggest problems is that risk management practices, spurred on by the insurance companies, have often been confused with the standard of care (Williams, 1997, 2003). The fact that there are hundreds of different psychotherapeutic orientations (Lambert, 1991), and many different types of communities and cultures, make the concept of the standard of care extremely complex, illusive and controversial. Besides the agreement never to harm or exploit clients, to treat them with respect and dignity, and to protect their privacy and autonomy, there is little agreement among practitioners in the field about what constitutes proper care. A New York City psychoanalyst's treatment of anxiety is likely to be very different than an existentialist's treatment of the same condition in rural Idaho or the local counselor's treatment on the Indian reservation in Arizona. In order to operate within the standard of care, obviously one must first understand it and the complexities therein. Regrettably, most therapists have only a vague notion of the standard of care (Caudill, 2004). Even more disturbing and dangerous is when expert witnesses themselves do not understand the essence of the standard of care, and in their court and board testimonies erroneously equate risk management or analytic guidelines with the standard (Lazarus & Zur, 2002; Williams, 1997, 2003). The field in general has been led to view the standard of care in a narrow and inaccurate way, primarily through the influence of attorneys' presentations and columns in professional newsletters, risk management expert's teaching at continuing education seminars, and by graduate school and continuing education ethics instructors. Following are the six elements from which the standard of care is derived. Several of these elements, have also been described by Caudill (2004), Doverspike (1999), Reid (1998) and Williams (1997, 2003), among others.
The standard of care has often been viewed in inaccurate ways. Following is a non-exhaustive list of what the standard of care is not.
The proliferation of risk management practices, regrettably, is also likely to influence the standard of care. Following is a borrowed example from gynecology, where there is a requirement that a woman chaperone be present during a pelvic exam. Williams (2003) describes how the chaperone's primary role is to protect the physician from false accusation, criminal complaint or lawsuit. Before chaperoning became part of the standard of care, some women preferred not to have such a witness, especially if they had a long, trusting relationship with their physician or if the physician was a woman. However, today, not having a witness is considered practicing below the standard of care. This kind of trend is likely to lead psychotherapy towards an extremely narrowly defined standard of care, which will tie the hands of most practitioners who are not wedded to analytic or risk management practices. Lazarus reflects on this trend. "One of the worst professional or ethical violations is that of permitting current risk-management principles to take precedence over human interventions" (1994, p. 260). One of the most disturbing developments in regard to the standard of care has been its increased susceptibility to influences from insurance companies and litigating attorneys. As with the example from gynecology above, we see slow but steady influences of risk management practices on the standard of care. Because there is no single text that articulates an agreed upon standard of care, the standard is primarily determined in courts and licensing board hearings by testimonies of expert witnesses. Attorneys on both sides often present conflicting expert testimonies about the standard of care. Hired by the boards or the plaintiffs' attorneys, many experts apply narrow analytic principles, limited ethical codes and rigid risk management principles to determine what actions fall below the standard of care. As a result, many legitimate clinical, ethical and legal behaviors, such as touch, gifts, bartering, extended length of session, and pro bono services, often fall below the standard of care according to these experts. Therapists who barter with clients who are poor, make home visits to those who are homebound or employ the behavioral intervention of flooding with an agoraphobic patient by leaving the office have being unjustly accused of operating below the standard of care (Lazarus, 1994; Williams, 1997, Zur, 2001, 2004). The danger is not only for therapists who are unjustly judged by the risk management yardstick, but in fact, for the entire profession. As therapists are being frightened by risk management experts, attorneys and insurance companies into avoiding touch, bartering, home visits, gifts, non-sexual dual relationships and other boundary crossings there is an increased chance that a new standard of care may develop. As more and more practitioners, especially young ones, practice risk management, there is increased risk that it will become the standard of care (Lazarus, 1994; Williams, 2003). In summary, the standard of care has been defined by some as the usual and customary professional standard practice in the community. There is no one textbook or set of rules that define the standard of care and some suggest it is nothing more than a perception. One of the biggest problems with risk management practices is that they have often been confused with the standard of care. Attorneys and expert witness often treat the two as the same. As a result, prudent and competent therapists who adhere to professional principles, follow the precepts of their orientation and community standards but do not follow strict analytic guidelines or fear-based risk management practices, are unjustly accused of practicing below the standard of care.
Tort - Elements of Malpractice There are four basic elements that must be fulfilled in order to win a civil malpractice suit: a) a professional relationship must exist (i.e. therapist-client relationship), which establishes the therapist's duty of care; b) there must be a demonstrable standard of care and an illustration that the practitioner breached this standard or operated below this standard; c) the client must demonstrate that s/he was harmed or injured; and, d. the client must demonstrate that the breach of the standard of care caused the alleged injury. Risk management is primarily geared to avert problems or risks such as those described above. It is aimed to either prevent clients from assessing that they have been wronged in the first place or provide a pre-emptive defense in the event of administrative, civil or criminal proceedings. Laws and Risk Management (with emphasis on California law) Beside criminal and other laws under which all citizens are governed, mental health professionals are regulated by civil laws that define malpractice, and by three other laws: (1) Statutes, such as the Elder or Child Abuse Reporting Law. Obviously, the statute or the law must be followed according to the provisions of each state. (See below for California laws and regulations.). A therapist who does not conform to the law is clearly operating below the standard of care. (2) Case Law: The most famous one, probably in the entire country is the 1976 California Supreme Court case of Tarasoff v. Regents of the University of California. This case articulated the duty to warn of a patient's threat to harm a third party. Other states have split over whether they will impose such a duty on mental health professionals. And, (3) Administrative Law and licensing board regulations: In several states, such as California (see details below), there are extensive regulations, which govern numerous aspects of psychotherapy practice. This may include rules about how one may qualify for a professional license, what defines the license, scope of practice, rules about supervision, continuing education, etc. (Caudill (2004). In general it is important to understand that risk management is not part of any state or federal statue. While some states may mandate continuing education courses in certain areas, risk management is not one of them.
Following is additional information for California Psychologists, MFTs and Social Workers on California Regulations of the Practice of Psychotherapy and Counseling The concept of risk management is not part of any California law or statue. While there are clear requirements for courses on law and ethics, these requirements should not be confused with the teaching of risk management.
Law and Ethics CE Requirements in California: Any person renewing his or her license on or after January 1, 2000 must provide evidence of completion of a continuing education course of not less than four hours in length in the subject of laws and ethics for each license renewal cycle. This course shall cover laws and regulations related to the practice of psychology: recent changes/updates in ethics codes and practice: current accepted standards of practice; and application of ethical principles in the independent practice of psychology. Please refer to section 1397.61(b) of the Board's regulations. BBS web page states: Any person renewing their license on or after January 1, 2004 is required to have completed no less than six hours of continuing education in the subject of Law and Ethics for this and each subsequent renewal. The six hours shall be considered part of the 36 hour CE requirement. MCEP-CA web page states: For all renewals, as of January, 2000, psychologists will need to have completed a four-hour (single session) course on the ethics and laws specifically pertaining to the practice of psychology in California. In addition to reviewing changes/updates to :1) ethics codes and practice, 2) laws and regulations pertaining to the practice of psychology and 3) current standards of practice; the intent of the BOP's requirement is for a course that will focus on ethical decision making, i.e., the application of ethical principles in the practice of psychology. This requirement is ongoing, and must be taken within the two years prior to each renewal period. You, as the licensee, will determine if any given course meets this requirement and will report your compliance directly on your BOP license renewal form.
Business and Professional Code of California:
For regulations online:
Brochures by California Department of Consumer Affairs:
Additional online resources: |