Attorney Articles | Thoughtful Transitions

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Thoughtful Transitions

This article is intended to discuss specific legal and ethical issues which should be considered when a therapist is exiting a work setting.

Michael Griffin, JD, LCSW
Staff Attorney
The Therapist
November/December 2017

When a therapist leaves an agency or private practice, disagreements often arise, over what should, or shouldn’t be communicated to the therapist’s patients. When a therapist is exiting a work setting, there are typical questions posed by employers and employees, such as: Is it appropriate for the therapist to inform his or her patients regarding the existence of the therapist’s new workplace? Is it permissible for the employer to prohibit the departing therapist from “taking” some, or all, of his or her patients to the therapist’s new workplace? This article discusses important legal and ethical issues which should be considered when attempting to answer such questions.

In attempting to resolve disputes over patients, therapists and their employers may attempt to resolve the dispute by debating who it is that “owns” the patient. This is based upon the presumption that, whomever it is that “owns” the patient, possesses the corresponding authority to define, and/or limit, the treatment options that are made available to that patient. Unfortunately, the concept of “ownership,” in this context is misplaced, and it misconstrues patients as if they were a type of property. In fact, patients are free to make their own health care decisions and do not “belong” to anyone.

Legal Considerations
Some contractual agreements between employers and therapists include provisions which restrict the actions of the therapist after termination of the employment relationship. These are called non-competition clauses,” also known as “covenants not to compete.” For example, the agreement may forbid the departing therapist from competing with his or her former employer by stating that the therapist should not provide services to anyone whom the therapist treated while working for the former employer. Some contracts may state that the therapist may not offer services within a particular geographic area surrounding his or her former place of employment. As a general rule, (with the exception of circumstances involving the sale of ownership interests in corporations, partnerships, or limited liability corporations), non-competition clauses between employers and employees are prohibited and unenforceable in California under section 16600 of the Business and Professions Code.i This section of law provides that: “…every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” ii

The California Supreme Court has held that the use of non-competition clauses in California is generally forbidden, outside of narrow exceptions which involve the sale or dissolution of corporations, partnerships and limited liability corporations.iii In Raymond Edwards II v. Arthur Anderson LLP, the court stated that section 16600 expresses “… a settled legislative policy in favor of open competition and employee mobility,” representing “…an expression of public policy which ensures that every citizen retains the right to pursue any lawful employment and enterprise of his or her choice.” In this case, the court was unambiguous in its rejection of non-competition agreements that did not fall under the statutory exceptions described in section 16600. While acknowledging that the 9th Circuit (federal appeals court) had approved of non-competition agreements which were “narrowly tailored,” (limited in scope) the court pointed out that no such exceptions exist under California law. vi

The California Supreme Court also held that a “non-solicitation” clause in the agreement between Raymond Edward and Arthur Anderson which prohibited Edwards (an accountant) from performing work for Anderson’s Los Angeles clients was a violation of section 16600, because it restricted Edwards’ ability to practice his professionvii. Not surprisingly, California courts have also considered agreements which require individuals to make financial payments to their former employers for competing with the employer, to be illegal “restraints of trade,” and therefore invalid, under section 16600.viii

Termination of Treatment 
When a therapist’s employment ends, he or she should address the topic of termination with patients who will not receive continued treatment from the therapist in a new treatment setting. In some instances, an option for the patient may be to continue his or her treatment with another therapist in the current treatment setting. When that is the case, the therapist would be expected to discuss that fact with the patient, and to consider it along with any other viable option which may exist. In other instances, the patient may decide that the departure of their therapist is a good time to discontinue treatment, rather than starting with a new provider.

No ideal model exists for therapists to follow when terminating treatment with a patient, but there is the need to practice in a manner that is consistent with the applicable “standard of care.” That means that the therapist is expected to manage the termination process with his or her patients with the reasonable degree of skill, knowledge and care that would ordinarily be exercised by other members of his or her profession, when practicing under similar circumstances.x Similar requirements are echoed in Section 1.31 of the CAMFT Code of Ethics, which states that “Marriage and family therapists use sound clinical judgment when terminating therapeutic relationships and do so in an appropriate manner.”xi A reasonable implication of these standards is that it is generally desirable to provide patients with an opportunity to say goodbye to their therapist and offer resources for continuity of care, if necessary.

Ethical Concerns
To be clear, therapists in private practice have legitimate economic concerns and are not expected to practice their professions for purely altruistic reasons. And every business, whether it is a non-profit agency, clinic, or private practice, has to operate “in the black,” or it will eventually cease to exist. Thus, it is hardly unethical for therapists, or their employers, to consider the economic necessity of having patients to treat. This does not mean, however, that they may allow their economic interests to take precedence over the needs or interests of patients.

Treatment planning that is based upon a provider’s economic interests, rather than the needs or preferences of patients, is unethical. The CAMFT Code of Ethics clearly convey that the guiding factors in determining a patient’s treatment are the patient’s interests, along with the right of the patient to make decisions on his or her own behalf. Such principles are evident in multiple sections of the Code: Section 1.4 states that “Marriage and family therapists respect the right of patients to make decisions and help them to understand the consequences of their decisions.”xii Section 1.4.1 provides that “Marriage and family therapists respect patient choices and work jointly with patients to develop and review treatment plans that are consistent with patient’s goals…”xiii And, Section 1.5 expresses that “Marriage and family therapists provide adequate information to patients in clear and understandable language so that patients can make meaningful decisions about their therapy…and…respect the right of patients to choose whether to enter into or remain in a therapeutic relationship.”xiv ’Therefore, in accord with the CAMFT Code of Ethics, patients should be permitted to consider any appropriate source of continued care.

If disputes do arise, it tends to be when a patient asks his or her therapist, or the therapist’s employer, whether it is possible to receive treatment from the departing therapist in a different setting (such as the therapist’s private practice). Based upon the ethical standards cited above, as a general rule, it would be appropriate to consider the patient’s request, and to evaluate the feasibility of such an option. Because there are many variables to consider, the answer to the patient’s question depends on his or her needs, and the relevant facts and circumstances. In responding to the patient, the therapist would be expected to consider, based upon his or her clinical judgment, whether he or she would be a good choice of continued help for the patient, in comparison to any other treatment options which may exist. Other factors to consider include, but are not limited to: The ability of the patient to travel to the therapist’s new office or place of employment, the fees charged in the new location and any financial implications for the patient, the location of the therapist’s new office or workplace ,and the potential interruption of services to the patient, (such as access to the clinic psychiatrist, or participation in specialized therapy groups, etc.), which may occur as a result of discontinuing treatment in the present location. The patient should also be told whether the therapist has actually begun to practice in the new location, or if he or she is merely planning to do so at some time in the future. If the patient in question had an immediate or urgent treatment need and the therapist was uncertain about his or her future plans, sound clinical judgment would suggest that the patient be discouraged from foregoing other treatment options and waiting for the therapist to become available at a later time.

Difficult Circumstances
It should come as no surprise that the process of transition for the therapist’s patients is generally smoother in the context of an amicable employer-employee relationship. In ideal circumstances, the therapist’s departure is a planned event, where he or she proceeds according to agreed-upon procedures. In such a scenario, the therapist has made final arrangements with his or her employer, and has spoken to all of his or her patients regarding their termination plans. This is more likely to occur when there are clear written termination policies and procedures in place that are consistent with the legal and ethical standards discussed in this article.

Unfortunately, what transpires between employers and employees is often unplanned, rather than ideal, and the parties may need to manage these issues in difficult circumstances. When a therapist has been involuntarily terminated by his or her employer, there is a risk that animosity or an acrimonious employer-employee relationship may interfere with the process of sound decision-making concerning the therapist’s patients. However difficult it may be, it is important for the therapist and his or her employer to manage their feelings and focus on the task of carefully evaluating the needs of every patient, in as objective a manner as possible under the circumstances.

In speaking to a patient, it is never appropriate for the employer to disparage the employee, or try to prevent the patient from seeking treatment with the former therapist. Unless the employer had legitimate concerns about a therapist’s ability to practice competently and/or, ethically, it would be unreasonable to withhold information about the availability of the therapist as a source of continued care, in response to an inquiry from the patient. However, if the employee was terminated for reasons of incompetence or unethical behavior, it would not be reasonable to expect the employer to lend his or her support to the option of continued care with the therapist. In the event that a patient’s therapist is terminated for cause, it is usually a good idea for the employer to seek legal consultation regarding the matter and to refrain from discussing the circumstances which led to the therapist’s termination.

In conversations with patients, it is recommended that the therapist not engage the patient in a discussion of any employment-related concerns, or interject his or her negative feelings about the employer. It would also be inappropriate for the therapist to attempt to persuade the patient to forego an opportunity for continued treatment in the present treatment setting.

Without a doubt, the issues which arise when a therapist is separating from his or her place of employment can be difficult, particularly when there are patients with complex needs, and they are even more difficult when there has been a breakdown in the employer-employee relationship. The existence of clear policies and procedures that are in accord with legal and ethical standards can be helpful to employers and employees alike. Ultimately, the fundamental principles of focusing on the needs of the patient, and respecting the patient’s independence and autonomy should serve as a guide in even the most difficult of circumstances.

i Cal. Bus. & Prof. Code, §§16600, 16601, 16602.5,
ii §16600, Id.
iii Cal. Bus. & Prof. Code, §§16600, 16601, 16602.5; Raymond Edwards II v. Arthur Anderson LLP, (2008) 44 Cal. 4th 937
iv Raymond Edwards II v. Arthur Anderson LLP, (2008) 44 Cal. 4th 946, Citing, Metro Traffic Control, Inc., v. Shadow Traffic Network, (1994) 22. Cal. App. 4th, 927, 933 (1994)
v Raymond Edwards II v. Arthur Anderson LLP, Id., 948-950
vi Raymond Edwards II v. Arthur Anderson LLP, Id.
vii Id., at 948
viii Raymond Edwards II v. Arthur Anderson, LLP (2006) 47 Cal. Rptr. 3d 788; Muggill v. Reuben H. Donnelley Corp., 62 Cal.2d 239
ix Cal. Jury Instructions, §501, Standard of Care for Health Care Professionals
x Griffin, Michael, JD, LCSW, “Parting Ways: Anticipating and Avoiding Problems Which Commonly Occur During Termination,” The Therapist, Sept/Oct., 2017
xi Code of Ethics, §1.31,Termination 
xii Code of Ethics, §1.4, Patient Autonomy
xiii Code of Ethics, §1.4.1, Patient Choices
xiv Code of Ethics, §1.5, Therapist Disclosures