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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.
Not all dual relationships are unlawful or unethical; in fact, some cannot be avoided. But, how does a therapist keep his or her conduct out of the deep rough and on the fairway?
Unlawful and/or Unethical Dual Relationship?
A Word to the Wise
David Jensen, JD (former CAMFT Staff Attorney)
Reviewed November, 2017 by Alain Montgomery, JD (CAMFT Paralegal)
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
The subject of dual relationships is somewhat controversial, largely because the core concepts of "patient exploitation" and "impairment of professional judgment" are undefined in the CAMFT Code of Ethics for Marriage and Family Therapists and the law. The vagueness of these concepts allow the BBS and the courts maximum flexibility in terms of prosecuting dual relationship cases, but, conterminously, in some cases, it also allows reasonable people to disagree about what exactly is an exploitive relationship versus a non-exploitive one, or what exactly is a relationship that impairs professional judgment versus one that does not. This vagueness in the Code of Ethics, and the absence of such information in the law, makes it difficult for practitioners to adhere to the Code of Ethics and the law because they cannot readily access the fundamental propositions; after all, it is more difficult to shoot a moving target than one that is standing still.
Some practitioners praise the virtues of dual relationships, and they are a little more risk taking 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.
To arrive at the information set forth in this article, I reviewed as many actual Accusations and Statements of Issues as I could find. By an Accusation or a Statement of Issues, I mean the formal document or pleading that officially initiates the BBS' or the BOP's action against the Respondent and specifies the unprofessional conduct alleged. The practitioner named in the Accusation or the Statement of Issues is the Respondent.
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 RELATIONSHIPS/BOUNDARY VIOLATIONS
Exploitive dual relationships or dual relationships that affect professional judgment tend to fall in at least one of nine categories:
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 RELATIONSHIP
The social or personal relationship is dangerous because, on the surface, it seems innocuous. After all, what can be wrong with being friends with a patient? How is that exploitive of a patient? How does that affect the therapist's professional judgment? This secondary relationship looks innocuous, but that perception is a mirage. Therapists get into trouble with this type of secondary relationship almost as much as they get into trouble for a sexual relationship with a patient. The BBS and the BOP believe that the integrity of the therapy is compromised by a social or personal relationship added to the therapeutic one. The danger is that the therapist no longer sees the individual as a patient, but also as a friend, which creates the risk of the therapist losing his or her objectivity. The patient's transference may be affected by the secondary relationship and the therapist's countertransference may interfere with the quality of the therapy. The social or personal relationship may also set the stage for economic or sexual exploitation later. Further, how does the therapist defend his or her actions if the social or personal relationship crumbles? In such a situation, the aggrieved patient may then have to deal with the loss of his or her therapist as well as the loss of a friend. This double loss could be emotionally devastating for many patients.
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 CONTACT RELATIONSHIP
The sexual relationship has been demonstrated by the following facts: terminating therapy with a couple so that the therapist could work with the wife individually; terminating therapy with a patient to commence a sexual relationship; having a sexual relationship with a patient or a supervisee; showing explicit sexual material to minors without proper consent; engaging in clinically inappropriate sexually based discussions; watching a sexually explicit movie with a patient; accepting nude photographs of a patient; telling a patient that he or she reminds the therapist of a character from an erotically-based movie; being nude with or fondling a client; failing to wait at least two years from the lawful termination of therapy to enter into a sexual relationship with a former patient; and, telling a patient that the therapist loves him or her.
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 A-frame 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 FINANCIAL RELATIONSHIP
It is axiomatic that, other than the payment by the client for the professional services rendered by the therapist, the patient's business interests and finances should never be commingled with the therapy. Why? Money can be an intoxicating and corrupting influence. It will be difficult for a therapist to maintain his or her objectivity if the business endeavor makes money as well as if it loses money. If it makes money, the therapist can lose his or her objectivity by focusing on maintaining the revenue stream instead of doing good clinical work. The patient then becomes a sort of cash cow instead of just a patient. If the endeavor loses money, rancor, animosity, ill will, or a host of other negative emotions may result, any of which could effectively compromise the quality of the therapy.
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
Although it arises from the best of intentions and the warmest part of the therapist's heart, the caretaking relationship can get therapists into a lot of legal trouble. This is a difficult secondary relationship for some therapists to understand because they, like all compassionate human beings, want to alleviate human suffering, especially where children are involved. However, good therapists are just good therapists, nothing more; no matter how compelling the circumstances, a therapist cannot provide food, clothing, shelter, medicine, parenting, or companionship to clients and their family members. Therapists with patients in these types of situations are advised to refer their patients to community resources for amelioration of such conditions.
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 receiving of gifts is another problematic area for therapists. Sometimes refusing a gift can damage the treatment relationship; other times, receiving the gift can damage the treatment relationship. Certainly, the magnitude and the meaning of the gift are important factors to be considered in deciding whether to accept or deny a gift. Cultural considerations may also come into play. A Christmas ornament handcrafted by a child patient is more likely to be accepted than a new car from an adult patient. Therapists must discuss with their clients the legal, ethical, financial, and clinical ramifications that arise when patients want to give their therapists gifts. Therapists should also obtain clinical and legal consultations regarding these issues. Of course, such discussions should be thoroughly documented in the patient's file.
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 AUTONOMY
Good therapists do not interfere in the personal decisions of their clients; rather, they help their clients to see the ramifications of such decisions. Good therapists help illuminate the path, but they allow their clients to choose which path to take.
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; encouraging a patient to vote a certain way during elections; and, advising a patient to take specific herbs for specific conditions.
A patient goes to a therapist for help with the patient's problems, not to help the therapist sort out his or her problems. The major problem with therapist self-disclosure is that it can "turn the table" on the therapy and then place the patient in a role where he or she feels responsible for the therapist's well-being. The key question in a self-disclosure case is does this personal information about the therapist advance the patient's therapy? If the therapist does not have a good answer to that question, the personal information should not be shared. Assuming there is a good answer, it should be documented in the patient's file. Additionally, if there is time to do so, getting clinical consultation about the disclosure is a good thing to do.
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
Good therapists are just good therapists for their patients, nothing more. However, by nature, therapists tend to be healers in the broadest and best sense of the word. They care about people and they want to help people, and such compassion does not dry up just because someone is a patient. That compassion, however, like a fire, has to be managed. It has to be kept within acceptable bounds. Being a therapist places limitations on the things that therapists can and cannot do with their patients. One such limitation comes into play with the problems that patients experience in their lives. Therapists work to address a client's mental health needs in therapy, but someone other than the therapist must meet the client's other needs. When a therapist gets involved with a patient and his or her personal problems and tries to solve them, the therapist has become enmeshed in the client's life. The only time that a therapist can advocate for his or her clients is when trying to get sessions covered by insurance. For all other situations, clients should be referred to available community resources.
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.
Employing or contracting with patients is not a good idea. Too many things can go wrong that could interfere with the therapeutic relationship. For instance, the patient/employee may perform services that are unacceptable to the therapist/employer. What happens if the therapist/employer must discipline or even fire the patient/employee? What happens if the patient/employee asks for a raise in pay that the therapist/employer cannot give? Either of these contingencies, among others, could adversely affect the patient's treatment. Moreover, blending these roles could confuse the patient. An employee tends to want to please his or her employer so that the employee can keep his or her job. But, a patient desiring to please his or her therapist is a source of concern.
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.
For as long as you practice, and even for a reasonable amount of time thereafter, you will have dual relationship and boundary violation issues to contend with, especially if you live and practice in a small community. Although not all dual relationships are unlawful or unethical, therapists want to avoid ones that are reasonably likely to exploit patients or reasonably likely to impair the therapist's professional judgment. Such relationships are going to include some aspect of sexual or improper physical contact; money; caretaking; gift receiving or giving; personal influence; self-disclosure; enmeshment; or employment, whether for money or on a voluntary basis, of the patient or supervisee. Being conscious of these categories will help you stay on the fairway and out of the rough.