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The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.
Legal and ethical issues often arise when a therapist is ending their relationship with an employer. Focusing on topics of dispute that commonly arise between employers and therapists/employees, Michael Griffin, JD, LCSW examines the application of California law to the use of noncompetition clauses in employment contracts and considers
sections of the CAMFT Code of Ethics relevant to issues such as patient autonomy and independence.
By Michael Griffin, JD, LCSW, Staff Attorney
Originally published in the November/December 2017 issue of The Therapist
When a therapist leaves an agency or a private practice, disagreements often arise over what should or shouldn’t be communicated to the therapist’s patients. In these circumstances, common questions posed by employers and employees include: Is it appropriate for the therapist to inform their patients about the therapist’s new workplace? Is it permissible for the employer to prohibit the departing therapist from “taking” some, or all, of their patients to the new workplace? This article discusses legal and ethical issues that should be considered when attempting to answer such questions.
Therapists and their employers may attempt to resolve disputes over patients by debating who “owns” the patient. This is based upon the presumption that whoever “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; it misconstrues patients as if they were property when in fact they are free to make their own health care decisions and do not “belong” to anyone.
Some contractual agreements between employers and therapists include provisions that restrict the actions of the therapist after termination of the employment relationship. These are called noncompetition clauses, or “covenants not to compete.” For example, the agreement may forbid the departing therapist from competing with their former employer by stating that the therapist cannot provide services to anyone they treated while working for the former employer. Some contracts state that the therapist cannot offer services within a particular geographic area surrounding their former place of employment. With the exception of circumstances involving the sale of ownership interests in a corporation, partnership, or limited liability corporation, noncompetition clauses between employers and employees are, as a general rule, prohibited and unenforceable in California under section 16600 of the Business and Professions Code.1 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.”2
The California Supreme Court has held that the use of noncompetition clauses in California is generally forbidden, outside of narrow exceptions that involve the sale or dissolution of corporations, partnerships, and limited liability corporations.3 In Raymond Edwards II v. Arthur Andersen 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 their choice.”4 In this case, the court was unambiguous in its rejection of noncompetition agreements that do not fall under the statutory exceptions described in section 16600.5 While acknowledging that the Ninth Circuit court of appeals had approved of noncompetition agreements that are “narrowly tailored” (i.e., limited in scope), the court pointed out that no such exceptions exist under California law.6 The California Supreme Court also held that a “non-solicitation” clause in the agreement that prohibited Edwards, an accountant, from performing work for Arthur Andersen’s Los Angeles clients was a violation of section 16600 because it restricted Edwards’ ability to practice his profession.7 Unsurprisingly, California courts have also considered agreements that require an individual to make financial payments to their former employer for engaging in competition to be illegal “restraints of trade,” making them invalid under section 16600.8
Termination of Treatment
When employment ends, the therapist should address the topic of termination with patients who will not receive continued treatment from the therapist in a new setting. In some instances, it may be an option for the patient to continue treatment with another therapist in the current setting. When this is the case, the therapist is expected to discuss it with the patient and consider it along with any other viable option that exists. In other instances, the patient may decide that the departure of their therapist is a good time to discontinue treatment rather than start with a new provider.
No ideal model exists for terminating treatment with a patient, but the therapist must practice in a manner that is consistent with the applicable “standard of care.” This means that the therapist is expected to manage the termination process with the reasonable degree of skill, knowledge, and care that would ordinarily be exercised by other members of their profession when practicing under similar circumstances.9 10 Similar requirements are echoed in section 1.4 of the CAMFT Code of Ethics, which states, “Marriage and family therapists use sound clinical judgment when terminating therapeutic relationships.”11 A reasonable implication of these standards is that it is generally desirable for therapists to provide patients with an opportunity to say goodbye and to offer resources for continuity of care, wherever appropriate.
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 a nonprofit agency, a clinic, or a private practice, must 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 and interests of patients.
Treatment planning that is based on a provider’s economic interests rather than on their patient’s needs and preferences is unethical. The CAMFT Code of Ethics clearly conveys 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 their own behalf. Such principles are evident in multiple sections of the Code: Section 1.9 states, “Marriage and family therapists respect client/patient choices, the right of the client/ patient to make decisions, and help them to understand the consequences of their decisions.” 12 Section 1.10 states, “Marriage and family therapists work with clients/ patients to develop and review treatment plans that are consistent with client/patient goals.” 13 And section 3.1 states, “Marriage and family therapists respect the rights of client/patients to choose whether to enter into, to remain in, or to leave the therapeutic relationship. When significant decisions need to be made, marriage and family therapists provide adequate information to clients/ patients in clear and understandable language so that clients/patients can make meaningful decisions about their therapy.”14 Therefore, according to the CAMFT Code of Ethics, patients should be permitted to consider all appropriate sources of continued care during the termination process.
In some circumstances a patient may ask their therapist, or their 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, it would be appropriate to consider the patient’s request and evaluate the feasibility of such an option. Because there are many variables to consider, the answer to the question depends on the patient’s needs and the relevant facts and circumstances. In responding to the patient, the therapist is expected to consider, based upon their clinical judgment, whether they would be a good choice of continued help for the patient in comparison with other treatment options. 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) that may occur as a result of discontinuing treatment in the present location. The therapist should also make clear to the patient whether they have begun to practice in their new location or are merely planning to in the future. If the patient has an immediate or urgent treatment need and the therapist is uncertain about their plans, sound clinical judgment suggests that the therapist should discourage the patient from forgoing other treatment options while waiting for the therapist to become available.
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 that unfolds according to agreed-upon procedures. In such a scenario, the therapist has made final arrangements with their employer and has spoken to their patients regarding termination plans. This is more likely to occur when there are clearly 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, and the parties may need to manage these issues in difficult circumstances. When a therapist has been involuntarily terminated by their 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 the circumstances may be, it is important for the therapist and their 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.
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 has legitimate concerns about the therapist’s ability to practice competently and/or ethically, it’s unreasonable for them 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 is terminated for reasons of incompetence or unethical behavior, it is unreasonable to expect the employer to lend their support to the option of continuing care with that therapist. If a 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 that led to the therapist’s termination.
It is recommended that the therapist neither engage the patient in a discussion of employment-related concerns nor interject negative feelings about their employer. It’s also inappropriate for the therapist to attempt to persuade the patient to forgo an opportunity for continued treatment in the present setting. Without a doubt, the issues that arise when a therapist is separating from their place of employment can be difficult, particularly when there are patients with complex needs, and they become 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 circumstances.
Michael Griffin, JD, LCSW, is a staff attorney at CAMFT. Michael is available to answer member calls regarding legal, ethical, and licensure issues.
1 Cal. Bus. & Prof. Code, §§16600, 16601, 16602.5.
2 §16600, Id.
3 Cal. Bus. & Prof. Code, §§16600, 16601, 16602.5; Raymond Edwards II v. Arthur Andersen LLP, (2008) 44 Cal. 4th 937.
4 Raymond Edwards II v. Arthur Andersen LLP, (2008) 44 Cal. 4th 946, Citing, Metro Traffic Control, Inc., v. Shadow Traffic Network, (1994) 22 Cal. App. 4th, 927, 933 (1994).
5 Raymond Edwards II v. Arthur Andersen LLP, Id., 948-950.
6 Raymond Edwards II v. Arthur Andersen LLP, Id.
7 Id., at 948.
8 Raymond Edwards II v. Arthur Andersen LLP, (2006) 47 Cal. Rptr. 3d 788; Muggill v. Reuben H. Donnelley Corp., 62 Cal. 2d 239.
9 Cal. Jury Instructions, §501, Standard of Care for Health Care Professionals.
10 Griffin, Michael, JD, LCSW, “Parting Ways: Anticipating and Avoiding Problems Which Commonly Occur During Termination,” The Therapist, Sept./Oct. 2017.
11 Code of Ethics, §1.4, Termination.
12 Code of Ethics, §1.9, Client/Patient Autonomy.
13 Code of Ethics, §1.10, Treatment Planning.
14 Code of Ethics, §3.1, Informed Decision-Making.
This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.