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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.
While some of your more difficult clients weren???t so pleasant to work with, they have since moved along. However, some difficult clients remain engrossed in your practice, your thoughts, your life???costing you money, time, sleep, and potentially
The Therapist July/August 2012
Throughout your career as a psychotherapist, you are going to run across an array of clients—ones that you very much enjoyed working with...and ones in which you wish you had been sick the day they first walked through your door. That is okay, you’re human. While some of your more difficult clients weren’t so pleasant to work with, they have since moved along. However, some difficult clients remain engrossed in your practice, your thoughts, your life—costing you money, time, sleep, and potentially other clients. These are the ones that we will be concentrating on in this article.
Collecting From Non-Paying Clients As a therapist of services, in this case psychotherapy, you have the right to be paid for services rendered. Many therapists believe that due to psychotherapy-confidentiality restraints, they are unable to collect unpaid balances from clients. That is inaccurate. A client is not absolved of paying for services by holding up the “confidentiality” flag. They received a benefit, they need to pay for that benefit.
A couple of questions to ask yourself before you determine if and how you wish to collect:
• How much do they owe you? • How much time do you have to put into collecting the money? • How vindictive or hostile was/is this client? • Did you do a good job of documenting the billing and/or your own collection efforts?
Should you bother pursuing collection from the client? If the client owes you $200, frankly you’re going to spend more than that amount on the time and effort in dealing with mediation, a collection agency, or small claims court. In the situation where a small sum of money is owed, it might be a more prudent course of action to write it off as a loss in your taxes. Also, how hostile and/or vindictive is the client?
While this shouldn’t necessarily be a deterrent, you should take the time to consider whether pursuing collection could lead to the client filing a lawsuit and/or complaint. While the lawsuit and complaint are likely meritless— defending either takes a lot of time, and possibly a lot of money. So, depending on how much is owed to you, again, the cheaper resolution may be to write off the whole debacle.
If you do chose to pursue collection, how do you collect?
First, you will want to make sure you have a good paper trail of your efforts to collect the money. Regular billing statements reflecting the sums owed, and letters sent to the client reminding them of their outstanding balance. Second, you need to determine in what vehicle you wish to pursue collection. The three typical manners are collection agencies, small claims court and mediation.
Collection Agencies tend to utilize the least amount of your time—they do the work for you. The downside is that they often take upwards of 40 to 50 percent of the collected fees. Also, not all collection agencies are professional. We advise only using agencies which you know to have a good reputation or that have been recommended by a colleague.
Small claims court allows you to keep all the money received, but you will need to take the time to file the action, have the client properly served, and represent yourself during the hearing. Note: You must represent yourself; you may not be represented by an attorney. An individual can file a claim up to $10,000 in California. On the date of the hearing, you can bring paperwork that evidences the money owed you, your attempts at collecting ofthe money, and any witnesses that can attest to the situation. After both sides present their side, the Judge will decide the case.
Mediation is also an option. The intent of mediation is to be non-adversarial, and generally involves a mediator congregating with you and the client in the attempts to come to a compromise that both parties can live with. Mediation will likely take a good portion of a day; as well the parties will need to pay for the cost of the mediator. With that said, it will likely be less costly than what you will be handing over to the collection agency.
In the end, as mentioned above, whether to pursue collection is up to you. Only you know how vital the unpaid balance is to your livelihood and the possible repercussions from your client.
Crimes Against a Therapist While uncommon, therapists have been the victim of theft, vandalism or even assault and battery at the hand of their client. Although you do owe a confidentiality duty to your client... that does not extend to being silent about crimes committed against you by your client.
Imagine you are sitting with a client who is getting aggravated, and they suddenly burst out and bite you, or hit you. Or an angered patient slashes your tires. These acts are against the law, and the client cannot stand behind “confidentiality” to get out of an unlawful act against you. While medical or clinical information of a client is of course confidential, calling the police and reporting the crime against you would not be a breach- -the client’s confidential psychotherapy information is not being released, but instead information about a crime against you. (Civil Code §§56.10 and 56.05(g), and Evidence Code §§1012 and 1018.) There is no statute, regulation or ethical guideline which prevents a healthcare therapist from reporting a crime against him or her, period.
The only caveat: before calling the police, take into consideration the extent of the crime. Technically, if a client becomes upset and spits on you they have committed battery, but is this really worth calling the police over? What about a client stealing an old, but favorite, flower vase? Is this minor incident worth having the client arrested, dealing with a likely BBS complaint filed by an angry client (albeit a meritless complaint), and/or ruining the therapeutic work accomplished to date? Also, remember that if you do call the police, your client will likely be arrested and depending on how the client pleas in the criminal case, you will need to be a witness at trial. These are simply points to consider when determining whether to call the police and/ or file charges against your client to the crime against your person.
A therapist need not continue to work with a client who has committed a crime against that therapist. However, if you are considering continuing the treatment, a few things to ask yourself: What is the potential for escalated violence against you as an individual? What kind of stress has been put on the clinical relationship given the history? Are you capable of providing the best treatment possible to the client after this crime or violence has occurred against you? These questions need to be considered before continuing with the client so that you can ensure your own safety as well as continued appropriate clinical care of your client. Also, remember to document in your file what occurred, the decision of whether to continue therapy, and any consultation you received on the matter.
Stalking and Harassment of a Therapist Over the years, members have called with concerns of such client actions as stalking and harassment. For example, clients who were displeased with the course of their treatments, unhappy parents of custody evaluators, or patients with borderline personality disorder who are struggling with termination. We’ve heard of client actions such as repetitive phone calls and emails, loitering around the therapist’s office, or occasionally stalking. While the more escalated forms of harassment are fairly rare, it unfortunately does occur.
The majority of therapists will, at some point in their career, experience minor harassment or a few annoying calls/emails from an unhappy client (or their family). Generally speaking, this harassment will be limited in time and harm to the therapist. In these cases, we encourage members to document the actions of the client and/or the family member, consult with colleagues, as well as contact CAMFT for consultation on the best way to legally and ethically handle that particular situation.
However, in the case where the harassment increases to the level of stalking, or fearprovoking actions, the therapist can and should take legal steps to end or lessen such actions. You could take such actions as calling the police, requesting a restraining order to stop the harassment, or filing a civil action.
Calling the Police and Criminal Action This alternative is likely not the most effective, except in extreme cases of fearprovoking actions (i.e. stalking, loitering outside your office and being assaultive, etc.) As mentioned in the section on crimes against a provider, depending on the severity of the harassment, getting the police involved could make the situation worse. However, in an extreme case where the therapist is worried about his/her immediate safety, or that of his/her family, calling the police could be in order.
The laws which could potentially come into play, depending upon the facts of the case in a criminal action are:
Restraining Order If the harassment is not at a level that warrants calling the police, but has escalated to the point where you feel you and/or your family are suffering emotionally, you can attempt to obtain a restraining order against the client/ family. A recent appellate case is summarized below to guide the therapist in a sample fact pattern on such an issue:
In the appellate case, R.D. v. P.M., 202 Cal. App.4th 181 (2011)1, the court upheld a three year restraining order against a therapist’s former client who continually stalked the therapist. Client engaged in such behavior as showing up at therapist’s market and approaching therapist in a threatening manner, distributed flyers about therapist at therapist’s son’s school, and loitered at therapist’s office. The therapist testified that she was scared for her and her family’s safety by the client’s continued and harassing actions over several years. The Court ordered that the client was to stay away from the therapist, therapist’s family, home, workplaces, vehicles, and schools.
The Court based its order on Code of Civil Procedure §527.6 which defines harassment as unlawful violence, a credible threat of violence, or a willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. §527.6 states that the course of conduct (including following, stalking, harassing telephone, mail or emails) must be such that it would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress. In this case, the therapist was able to demonstrate to the Court that emotional distress did occur based on the facts of the case and therefore was able to obtain the restraining order.
While not every court will side with the therapist and of course the facts of the case will dictate the outcome of the hearing, if you feel you are being harassed, stalked, or threatened to the point of emotional distress or fear, you do have options including a restraining order.
If you feel you need a restraining order, you will need to file for a temporary restraining order in the county where your client lives, does business, or where the incidents occurred. You will need to pay a filing fee and serve the harasser lawfully. Each county has local rules on such a transaction and we recommend contacting your local county courthouse for further direction on how to properly file and serve a temporary restraining order. It may also be advisable to hire an attorney to help you with this matter, or if funding is limited, most Legal Aid Societies in each county can help you at least with the paperwork.
Civil Action or Lawsuit As noted above, a therapist must determine how egregious a client’s (or their family member’s) behavior is before pursuing this avenue. Filing and pursuing a lawsuit against a former client/family member can be expensive, emotionally draining and will likely result in a complaint to the BBS (even if meritless). If this is the path the therapist has chosen, the most likely cause of action would be:
Again, please note that CAMFT is not advising that every time you feel harassed by a client you should call the police, try to obtain a restraining order, or sue the client. However, if the harassment reaches the level where you have concerns for your safety, or that of your family, there are steps you can take.
Cyber-Bullying or Stalking This section is separate and apart from general harassment as it is a world of its own. This is a complicated and complex issue, and one that is relatively recent. We routinely hear from members that former clients and/or their family members post negative reviews of the therapist on various Internet websites, including popular sites such as Yelp.com. While this is a free country, and obviously people can write their opinion of the services they received, often this can move into the world of cyber-stalking and/or cyber-bullying.
While it would be nice if the business review websites would help business owners in curtailing cyber-stalking, to date such sites seem uninterested in getting involved in these matters. As an aside, Yelp.com has not lost any lawsuit to date by business owners alleging liable and slander, and/or inaccurate or unfavorable reviews having harmed their businesses, etc.
As this is a new horizon, there is very little law on the topic. One member of CAMFT (Member X) shared her story with us on how she was able to gain a restraining order against a former client’s parent for cyber-stalking, something very rarely granted.
As background, Member X fell victim to the unhappy rantings of an estranged parent of one of her minor clients. The parent posted (on over 100 business review websites) not only negative opinions about Member X’s therapeutic services, but numerous untruths about the therapist, including sex with clients, etc. Member X was unable to convince the websites to take down the reviews and no attorney would take Member X’s case. However, Member X took matters into her own hands and after submitting an articulate request for a restraining order, the Court granted her request.
The basis of the restraining order was: parent’s actions were the willful, malicious and repeated harassment of Member X in violation of Penal Code §646.9 (discussed above); Member X was emotionally distressed and harmed by parent’s actions; parent’s actions had adversely affected Member X’s physical health; Member X feared for her life; and, parent’s actions potentially put minor client in harm’s way by exposing client’s treatment on so many public forums. The Court granted the order, ruling that the parent could not communicate with Member X directly or indirectly, purchase domains in the name of Member X, provide Member X’s personal information on the Internet, or “cyberstalk” Member X in any way.
While the Court did grant Member X’s request to cease all future cyberstalking, the Court did not grant the request that parent remove all previous postings. Accordingly, Member X sent the 100 businesses a letter discussing the “unlawful speech” being used by parent, Member X’s concerns about minor child’s safety given the exposure of minor’s case to the public, and a copy of the restraining order. All but one of the business websites have since taken down parent’s rants based on this letter and copy of the restraining order.
Note: It has also been advised that if you have been the victim of cyberstalking, you can contact the harasser’s Internet Service Provider (ISP) as most ISP’s have policies prohibiting the use of their services to abuse or harass another.
While this story is an encouragement that the Courts may be beginning to recognize the seriousness of cyberstalking and potential harm it can cause therapist and client, this story is rare and the amount of time and money Member X spent in making this happen was immense.
Conclusion While CAMFT will often recommend that “turning the other cheek” can sometimes be the most prudent course of action when dealing with a troublemaker client, we want you to realize that you are not a victim and you can stand up for your rights. When determining your path, please consider: How badly were you harmed from the behavior? Are you (and your family) safe? How much money did the client cost you? What will it cost to pursue the client legally? Will you make the situation worse? What will the client do in retaliation? What do your own values insist you do? Are you worried about a public safety issue?
At the end of the day, it is your decision on how to remedy the situation of a client who has wronged you, because you are the one that needs to live with the results of your decision. However, if you find yourself struggling with these types of situations, documentation is key, consultation with a trusted colleague(s) is imperative, and calling CAMFT is always recommended.
Catherine L. Atkins, JD, is a Staff Attorney and the Deputy Executive Director at CAMFT. Cathy is available to answer members’ questions regarding business, legal, and ethical issues