and/or Unethical Dual Relationship?
Not all dual relationships are unlawful or unethical; in fact, some cannot be avoided. The dual relationships that therapists should avoid, however, are ones that are reasonably likely to exploit patients or reasonably likely to impair professional judgment. But, which ones are those? On the lush, green fairways of therapy, these two ideas of patient exploitation and impairment of professional judgment represent the deep rough that adroit therapists want to avoid with their actions. But, how does a therapist keep his or her conduct out of the deep rough and on the fairway?
Education and personal conviction are the keys to legal and ethical behavior. A good therapist knows the rules and then keeps his or her conduct within acceptable boundaries. The purpose of this article is to educate you about problematic dual relationships, i.e., the ones that can result in civil liability and/or punishment from the BBS. To stay on the fairway and out of the deep rough, education is only half the battle, however. A good therapist practices legally and ethically. There is a choice to be made! The deep rough is always present; it's just that you don't have to practice in it.
A WORD TO THE WISE
Some practitioners praise the virtues of dual relationships, and they are a little more risktaking in their interactions with clients. For instance, they see nothing wrong with taking vacations or recreating with patients. Such practitioners claim that such trips allow them to get a more complete view of their patients and their interpersonal relationships, which then furthers the patient's treatment. This is somewhat of a gamble, although some practitioners may disagree with this conclusion. Admittedly, we play things conservatively in dual relationship cases. The wise therapist, however, will heed our counsel. He or she will not see our counsel as a restriction on his or her professional responsibilities or as selling out to the false god of risk management. Conversely, he or she will see our counsel as guideposts for ethical and legal conduct and as a way to help demarcate the fairway of legal and ethical conduct from the deep rough of legal and ethical trouble.
The Accusation or Statement of Issues is served on the respondent following an investigation by the Department of Consumer Affairs, Division of Investigation and following a review of the investigative report by the applicable licensing board and the Attorney General's office. An Accusation is filed against a licensee and a Statement of Issues is filed against a pre-licensed person. In terms of dual relationships, the charge of unprofessional conduct means that the individual, whether licensed or pre-licensed, has committed gross negligence, which is a term of art meaning that the individual has done something that no reasonably competent therapist would do, or that the individual has recklessly caused harm to a client. A dual relationship case in which the licensing board takes action will proceed along one or both of these theories, i.e., the respondent has engaged in gross negligence and/or has recklessly caused harm to a client.
Thus, the Accusation and the Statement of Issues set forth the alleged wrongdoing of the therapist. By focusing on the facts underlying the Accusations and the Statement of Issues, all of which resulted in some form of discipline being meted out against the practitioner, I hoped to get at the core of these cases to find out what exactly therapists did to get themselves into trouble. What behavior was the BBS or the BOP punishing?
Based on the factual allegations in the Accusations and the Statements of Issues, it is possible to get a fairly detailed picture of legal and ethical behavior in the dual relationship milieu. However, my analysis is certainly not exhaustive. Given the vagaries of human nature and our evolving, complex society, all sorts of illegal or unethical dual relationships that do not appear in the cases are possible. Consequently, if you are thinking about some sort of secondary relationship with a patient, but you do not see it referenced in this article, do not assume that the relationship will be considered legal and ethical. It may be, or it may not be. This article is not intended to be exhaustive. It is meant to educate about the signposts that we do know are there. Such signposts will guide us about what to do about other situations.
EXAMPLES OF DUAL
However, there are at least two concerns about these categories. They are arbitrary because, in the real world, they are not mutually exclusive and there is overlap between and among them. For instance, in a sexual misconduct case, the patient or the therapist may have given money to the other person or they may have exchanged expensive gifts or they may have cohabitated. It is rare that only one of the categories is present in a given case, although certainly not impossible; it is much more likely that dual relationships, i.e., the cases you read about in The Therapist, will combine two, three, four, or even more of these types of misconduct. But, dividing the misconduct into types fosters analysis and, hopefully, understanding of illegal and unethical behavior.
There is nothing scientific about my inclusion of some action in one category or another. Some actions, like any form of sexual misconduct, are easy to pigeonhole; others, conceptually, at least could fit into more than one category. For instance, the therapist who telephones his or her patient without clinical justification may be doing so because the therapist desires a personal, sexual, employment, or financial relationship with the patient. The classification of actions into one of the nine categories is for analytical purposes.
THE SOCIAL OR PERSONAL
How does the BBS or the BOP prosecute such cases? Basically they are looking for facts inconsistent with a legitimate therapeutic relationship. Personal testimony, whether from eyewitnesses or expert witnesses; gifts; credit card charges; notes; cards; letters; emails; photographs; receipts; and, telephone bills are all fertile sources of factual material for the BBS or the BOP to use when prosecuting such cases.
The social or personal relationship has been demonstrated by the following facts: sharing holidays with patients; socializing with patients at a therapist's home; attending movies with a patient; helping organize a patient's wedding; holding a patient's wedding reception at the therapist's condominium clubhouse; allowing a patient to cohabitate with the therapist; seeing a patient socially too soon after the termination of therapy; terminating therapy to commence a personal relationship; babysitting a patient's children; involving patients in the therapist's family gatherings; visiting a patient's home for reasons unrelated to therapy; sending a patient clinically inappropriate e-mails; allowing a patient to spend the night at the therapist's home; dating a patient; and, allowing the partner of a patient to cohabitate with the therapist.
THE SEXUAL OR PHYSICAL
What about hugging a patient? The law does not prohibit the hugging of patients. However, because hugging involves physical contact that feels good and can be misconstrued, this is an area where danger lurks below the surface. A hug is appropriate if it is brief, non-sexual, and not invasive. But, the patient's perspective is very important here. Was the physical contact supportive of good work in therapy? Or, was the physical contact an embrace? How long did the hug last? Which body parts actually touched? Did the therapist's forearms touch the outsides of the female patient's breasts? These are all relevant questions that come into play in the hugging/boundary violation cases. What makes hugging problematic is that the therapist, not the patient, has the obligation of establishing and maintaining proper therapeutic boundaries. So, hugging is not per se illegal or unethical, but it is fraught with some peril. If you must hug, think of the Aframe house as a model for the contact, with the lower half of the body, whether male or female, getting nowhere near the lower half of the patient's body.
In addition to hugging, certain other forms of physical contact should be avoided, including, but not limited to, patting a patient on his or her buttocks; sitting on the lap of a patient or allowing a patient to sit on the therapist's lap; holding a patient's hand; lying down with a patient; kissing a patient, whether on the lips or anywhere else; allowing a patient to give the therapist a massage or massaging a patient.
THE BUSINESS OR
The business or financial relationship has been demonstrated by the following facts: investing in a business with a supervisee; having a business relationship with the parent of a child that was in therapy with the therapist; getting involved in the patient's money-management issues and decisions; controlling access to the patient's checking account; having a joint-checking account with a client; making sales pitches to clients; soliciting clients to buy and distribute products, including, but not limited to, vitamins, face creams, beanie babies, and jewelry; taking control of a patient's finances; co-signing a lease for a client; borrowing money from a patient; loaning money to a patient; recruiting a patient to become part of a commercial enterprise that the therapist was starting; leasing office space to a client; drafting a will for a patient; assisting clients with business or legal issues; becoming the patient's creditor by not collecting overdue amounts in a timely manner or letting a patient's outstanding balance increase to the point that it becomes onerous to the patient; staying in a patient's timeshare while vacationing; and, receiving an advance of fees.
The caretaking relationship has been demonstrated by the following facts: giving food, clothing, medicine, or shelter to a client or to a member of the client's family; being a child's nurse and social worker as well as his or her therapist; and, developing a personal relationship with the mother of a child patient to further the child's treatment. The flip side of the caretaking relationship occurs when the therapist uses his or her patient for some kind of support. Such a relationship is also an unlawful or unethical dual relationship.
The BBS and the BOP have disciplined therapists for accepting the following types of gifts: medication from a client; free use of the patient's condominium; shares of stock; free vacations; paying the therapist's rent; paying for the therapist's meals; paying for the therapist's hotel room; paying the therapist's automobile insurance; paying the therapist's car payment; trading homes with a client for vacation purposes; movie premiere tickets; theme park admission tickets; and, gardening and pool supplies.
As you can see from this list, the gifts that have gotten therapists into trouble run from the lavish (vacations) to the practical (pool supplies); from something that could appreciate in value with time (shares of stock) to items with fixed costs (auto insurance or hotel rooms); from the mutually beneficial (trading homes) to something that only benefits the therapist (payment of therapist's car payment); and, from the dangerous and illegal (medications) to the pragmatic (gardening supplies).
The giving and accepting of gifts runs both ways. Therapists should not give their patients gifts as well.
INFLUENCE AND PERSONAL
The influence and personal autonomy relationship has been demonstrated by the following facts: imposing the therapist's beliefs about extraterrestrials into the patient's dreams and memories; encouraging a patient to become a member of the therapist's church or religious activities; tutoring a client; arranging for one patient to date another patient; and, advising a patient to take specific herbs for specific conditions.
Moreover, if the therapy session is devoted to the therapist's problems and not to the patient's, the patient is wasting his or her money, which can lead to an allegation of exploitation.
Disclosing personal information in the present may seem like the right thing to do, but a therapist cannot predict how the patient may use the information in the future. It is entirely possible that the patient may use the therapist's personal information against the therapist months or years later.
The self-disclosure and personal autonomy relationship has been demonstrated by the following facts: making disclosures about the therapist's private life that have nothing to do with a therapeutic purpose; discussing a therapist's family issues with a patient; discussing a therapist's business issues with a patient; telling a client about the therapist's financial problems; sharing therapist's sexual interests with a client; confiding in a patient about the therapist's personal problems; sharing information about the therapist's sex life; sharing information about the health of the therapist's family members; sharing information about the therapist's legal matters; sharing the therapist's psychological problems without a clinical need to do so.
ADVOCACY OR ENMESHMENT
The advocacy or enmeshed relationships have been demonstrated by the following facts: being an intermediary between a client and a third party; becoming the patient's protector; becoming an investigator of potential child, elder, or dependent adult abuse; providing conflicting professional roles to the same client; engaging in a coaching relationship with a client without waiting a reasonable period of time after the therapy had ended; being the patient's social worker; being a patient's nurse; assuming a post-therapy parental role to a minor patient; giving the therapist's medication to a patient; arranging for employment for a patient; and, arranging for employment for a family member of a patient.
The employment relationship has been demonstrated by the following facts: having a patient do errands for the therapist, including, but not limited to, picking up therapist's dry cleaning, obtaining herbs and vitamins, and conducting banking transactions; having the patient do chores for the therapist; employing a patient as a babysitter or housecleaner; having a patient do office work for the therapist; combining therapy with a yard sale; allowing a patient to do home repairs for the therapist; allowing a patient to help move the therapist's furniture from one home to another; and, allowing a patient to help move the therapist's office furniture from one office to another.
David Jensen, J.D.,
is CAMFT's Staff Attorney. David is available to answer member calls regarding
business, legal, and ethical issues. Check with your local chapter to
see when he will be presenting Best Practices: Legal and Ethical Issues
in your area. David will also be presenting Law and Ethics: What Does
the Law Expect of Me? at the Fall and Winter Workshop series in Oakland
on Friday, January 6, 2006. Log on to