Onderstaand artikel is een door Gary Schoener geupdate versie van het artikel dat wij eerder op deze pagina hadden gepubliceerd. Het oorspronkelijke artikel is in april 2003 ontstaan t.b.v. een lezing in het Veterans Administration Hospital in Minneapolis:

 

Clinical Supervision: Ethical,Legal & Practice Issues

28 April 2003 --MAAPIC -- Veterans Administration Hospital, Minneapolis


Fall 2004


 

PERSONAL RELATIONSHIPS WITH FORMER CLIENTS OR PATIENTS

           

Gary R. Schoener*


INTRODUCTION

 

            It is not uncommon for staff to approach supervisors or colleagues with questions about the propriety of “friendships” or other “contacts” or “involvements” with clients who have terminated their professional services.  Often they underplay what is actually going on, in terms of the intensity of the feelings involved, the dependency, or the amount of involvement.

 

Many a colleague or supervisor has unwisely supported, or at least not challenged, such involvement, believing it to be harmless.  Sometimes a simple reminder is given about avoiding sexual contact. Typically, the person requesting the consultation is not asked for any details and so there is not a frank discussion of what is actually going on.

 

            It should be noted that a great many post-termination sexual relationships have historically occurred in situation where either there was (1) no termination, or (2) a “quickie termination” in which a quick decision is made to stop the formal counseling sessions.

 

            But an additional problem here is the slippery slope. Even when sex or romance is not intended, an eventual boundary violation is the culmination of a series of boundary crossings.  It is not the key event, but simply a culmination of a series of events. A friendship or other social relationship can easily lead to any or all of the following: 

 

(1) a sexual or romantic relationship; 

 

(2)  a financial or business relationship; 

 

(3) continued professional service done outside of the professional context.**

 

            Although the literature, ethics codes, and licensure standards have focused on the danger to the former client, professionals need to be aware of their own liability and vulnerability. 


*Licensed Psychologist (M.Eq.) & Executive Director, Walk-In Counseling Ctr, 2421 Chicago Ave. S., Mpls., MN 55404 www.walkin.org   E-mail: grschoener @aol.com

 

**Supportive discussion and counseling by friends and family is quite similar to professional counseling and psychotherapy.  If you are a former therapist to the individual, anything that appears to be counseling or psychotherapy can be easily defined as such.  That is, it can be argued that it was simply continued professional services outside of the professional setting or context, or outside of office hours.  Furthermore, as a practical reality, many a practitioner has sought a romantic and/or sexual relationship with a former client, claiming that the past professional relationship was “terminated.”  So it is no surprise that ethics committees and licensure boards are dubious when a complaint comes in alleged there was not a real termination.

If something goes wrong in the eventual relationship, the professional may be liable civilly and criminally, and stand to lose a great deal.  As much as there can be harm to the former client, the professional can suffer incredible losses as a result.

 

            Many professionals overlook this since when the relationship begins they are the more powerful party and feel quite confident in their knowledge of the client. But, the power differential in the relationship can shift once the relationship becomes personal (Luepker & Schoener, 1989). Once lines are crossed, the professional is at considerable risk if the former client becomes angry or frustrated, and especially if the relationship ends.  I'm going to focus on the sexual relationship because this is where the most clear-cut standards are articulated. But the risks go beyond sex.

 

WHEN THE CLIENT IS A MINOR

 

The debate about standards for post-termination involvement with clients has seemingly presumed that the client is an adult.   First of all, those who work with minors need to be reminded that the parents and rest of the family are typically clients too.  In fact, since parents must authorize the care, it is presumed that they are clients.  So, an involvement with the parent of a former primary client who was a child or adolescent carries with it the same risks as involvements with primary clients who are adults.

 

Standards which refer to possible harm to third parties in this case might include harm to the former client brought about by a professional’s relationship with the parent of that former client.  The same may be true of other relations of the client.

 

Another issue is involvements with minors who reach the age of majority during or after treatment.  While this has been largely examined with regard to teacher – student relationships, largely due to high publicized cases around the country, it can be an issue for any type of health care worker, psychotherapist, counselor, case worker, etc.

 

It is normally presumed that a young adult, who was seen for professional services as a minor, is quite vulnerable.

 

This can become an issue when one employs a former client, or his or her parents, or engages in business dealings such as investment plans.  To the degree that the former client or their family believe that the situation is trustworthy or desirable because of their trust in you as a professional, there is potential liability.

 

The issue here is not just legal liability.  It is the potential for disappointment, frustration, anger, and even retroactively undoing the good work done during the professional relationship.

 

CIVIL LIABILITY

 

            Strictly speaking, in many jurisdictions, if one can show that the sexual contact with a former client or patient grew out of the previous professional relationship so that the ongoing contact represents a "continuous course of action," there may be liability in a malpractice action.  This is a matter of case law.

 

In Minnesota there is a statute which governs this situation, at least as far as psychotherapy is concerned. Statute 148.A limits a cause of action to sex which occurs within two years of termination, and which occurs as a result of therapeutic deception or emotional dependency created in the therapy relationship.*

 

            If such behavior is forbidden by the code of ethics in a profession, then it is easily shown to be malpractice.  As such, in the psychotherapy professions, post- termination sexual contact with a former client (at least if it occurs within two years of termination) is generally malpractice.  In the case of someone who provides care other than psychotherapy, it would depend on the circumstance.  But all professionals should be reminded that the legal definitions of “psychotherapy” or “spiritual counseling” are quite broad in the Minnesota statutes.*

 

Outside of psychotherapy the situation is less clear. In the case of a nurse, physician, or other health professional, it would depend on the circumstances. For any professional, another issue would be whether they were still providing professional service.  If one is still doing some form of "counseling" or giving advice about personal matters, this may be considered an ongoing professional relationship -- not a terminated one.  Also, the physician who continues to prescribe medications may still seem to be the person's "doctor."

           

LICENSURE-RELATED STANDARDS

 

            Laws under which professionals are certified or licensed in each state usually include codes of conduct which may define post-termination relationships.  Most of the time such codes adopt the ethical standards of the major national professional association in that field (APA, AMA, NASW, AAMFTA, etc.)  Some Boards have created more stringent rules than the ethics codes do.  For example, the Florida Board of Psychology adopted a rule that for the purpose of judging therapist – client sex, the therapeutic relationship is “…deemed to exist in perpetuity.”  (This was struck down by an appellate court in March of 2000 as violating the Privacy Amendment in the Florida State Constitution.)

 

            Research on the actions of psychology licensure boards has found that when the defense was used that the therapy was terminated before sex began, the offending practitioner tended to receive the same penalty as for sex which occurs during therapy.  It is possible, of course, that these defenses were deemed to be bogus and that a true termination had not occurred. A substantial number of individual cases of which I am aware did not involve true terminations. (Bisbing, Jorgenson & Sutherland, 1995, 1997, 1999;  Schoener, 1989).

 

 

·        Psychotherapy”means the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition.

·        “Emotionally dependent” means that the nature of the patient’s or former patient’s emotional condition and the nature of the treatment provided by the psychotherapist are such that the psychotherapist knows or has reason to know that the patient or former patient is unable to withhold consent to sexual contact or sexual penetration by the psychotherapist.

·        “Therapeutic deception” means a representation by a psychotherapist that sexual contact or sexual penetration by the psychotherapist is consistent with or part of the patient’s treatment.

 

            For Minnesota - licensed psychologists, social workers, marriage & family counselors, alcohol and drug abuse counselors, it is a licensure offense (either explicitly stated, or based on the history of board discipline, or reference to standards in the field) to have a sexual relationship with a former client.   This is likely to be the case for counseling and psychotherapy professionals in most if not all US states and Canadian provinces.

 

CRIMINAL STATUTES

 

            Twenty four states have criminal statutes which cover therapist-client sex.  Approximately half of them allow for prosecution of post - termination situations under some circumstances. Most common are termination in order to have sex, exploitation of emotional dependency, or contact within a certain time period. Minnesota allows for criminal prosecution for sex with a former psychotherapy client when the sex occurred as a result of emotional dependency or therapeutic deception (leading the client to believe that the sex is part of therapy or consistent with it).  In the case of the emotional dependency, it must be sufficiently strong to render the client unable to resist the therapist's advances.

 

            Wisconsin does not address the post-termination situation in its criminal law. Iowa includes only a one year period following termination, and requires that emotional dependency have brought about the sexual involvement.  New Mexico also has a one year rule, but without the additional requirement.  Texas requires that emotional dependence be proved, but like Minnesota includes a two year post-termination period of time.  Florida and California both use the standard of a termination in order to have sex, but California permits as a defense that the client was referred before the sex occurred.  (see Bisbing, Jorgenson, & Sutherland 1995, 1997, 1999) 


ETHICAL STANDARDS IN VARIOUS PROFESSIONS


ALCOHOLISM & SUBSTANCE ABUSE COUNSELORS:  

 

            In this field there is no one generally accepted national code of ethics. The Code of the National Association of Alcoholism and Drug Abuse Counselors (NAADAC) states (Principle 9(d): "The NAADAC member shall not under any circumstances engage in sexual behavior with current or former clients. In states which have a certification process or licensure, those laws and codes of conduct apply.  Many such rules include all clients of the agency -- not just those for whom you are a primary counselor. There are some special challenges in this field in that professionals may themselves be in recovery groups which may include as members their own former clients.  Termination may be uncertain since many programs expect clients to return for "aftercare."

 

            In the case of Minnesota, the licensing law for Alcoholism and Substance Abuse Counselors, under Rule 4747.1400, forbids sexual contact or requests for sex from a former client during the two years following a termination of professional services.  There is some ambiguity in this requirement as to whether it is an absolute prohibition based on the time period, or whether the prohibition is limited to sexual contact brought about through therapeutic deception or the client’s continued emotional dependency on the counselor.  Again, the warning about follow-up contacts having the effect of extending the time period, since a follow-up contact constitutes a professional service.


MARRIAGE & FAMILY THERAPISTS: 

 

            Since 1 Aug 1988 the American Assn. for Marriage & Family Therapy has forbidden sex for 2 years after termination or the last session.   This applies to either spouse or any family member who is seen in even a single session of marital or family therapy.  Needless to say, ending up romantically involved with the spouse or former spouse of a client who came to you for help with a troubled relationship is likely to generate serious distress and upset.  If the spouse has attended a single session or spoken to the therapist on the phone there is a clear-cut duty to the spouse in most jurisdictions.  The same is true of family therapy where a therapist ends up involved with a member of the family after therapy ends.

 

            In the revised Code which went into effect on 1 July 2001, there is an additional standard for post-termination situations:  Should therapists engage in sexual intimacy with former clients following two years after termination or last professional contact, the burden shifts to the therapist to demonstrate that there has been no exploitation or injury to the former client or to the client's immediate family.  It would appear that retrospective upset caused to a former spouse of the former client might therefore be sufficient for an ethical complaint.


MEDICINE -- NON-PSYCHIATRIC PHYSICIANS: 

 

            Both the AMA standard and the general standard of care in U.S. for a non-psychiatric physician-patient relationship require a discussion with patient about implications (e.g. that they can't be a patient again -- they can't have both a doctor and a lover), and termination of the professional relationship with referral to another physician. 

 

Although not explicitly stated, cancellation of all medication prescriptions and having them rewritten by the new physician is advisable since physicians are generally prohibited from writing prescriptions for persons who are not their patients.  There are a number of cases where charges have been brought of sex with a client due to the fact that a physician has written several prescriptions for the former client after care was terminated.

 

If non-psychiatric physicians are engaged in psychotherapy or counseling related to emotional issues, the psychiatric standards (below) are recommended by the American Medical Assn.  So the family practitioner, pediatrician, or even the surgeon who engages in counseling and diagnosis of depression, for example, would do well to keep this in mind.


MEDICINE -- PSYCHIATRISTS: 

 

            After having various standards for a number of years, the American Psychiatric Assn., in 1993, went from a "nearly never OK" standard to an absolutely "never OK" standard (although an article after the debate spoke of the burden being on the psychiatrist to show that the case was an exception, implying that there might be some sort of a loophole).  The American Medical Assn. has indicated that where there was psychotherapy in the doctor-patient relationship, this more stringent standard should be used.


NURSING: 

 

            American Nursing Assn. ethics code does not deal with post-termination involvement with clients.  Where there is not a psychotherapeutic relationship, the situation is  less clear.  Periodically one reads of nurses marrying former patients, such as physicist Steve Hawking's marriage to his nurse of many years. As regards psychiatric or mental health nursing, where there is a psychotherapeutic relationship, the nurse can expect to be held to a standard similar to that of other mental health professionals.

 

            In a document published in January 1994, entitled STATEMENT on Psychiatric-Mental Health Clinical Nursing Practice and STANDARDS of Psychiatric-Mental Health Clinical Nursing Practice (ANA Council on Psychiatric & Mental Health Nursing, American Psychiatric Nurses Assn., Assn. of Child & Adolescent Psychiatric Nurses, Society for Education & Research in Psychiatric-Mental Health Nursing) forbids intimate or sexual relationships with current clients, and indicates that the nurse "avoids sexual relationships" with former clients and"recognizes that to engage in such a relationship is unusual and an exception to accepted practice."  This is very similar to what was until several years ago the standard for psychiatrists -- that it is nearly never OK to have sex with a former patient.  


PASTORAL COUNSELORS: 

 

            The American Assn. for Pastoral Counseling prohibits sex for two years following termination of the counseling relationship. For clergy in counseling roles any extra-marital sex is generally forbidden, even after termination of the counseling relationship by denominational rules, canons, or expectations.  This may be under a denominational sexual abuse or misconduct policy or because it is considered adultery or behavior unbecoming a pastor.


PSYCHOLOGY:

 

            Psychology had a nearly 15 year debate about standards for sex following termination.  It started with an unclear standard in the 1970's and early 1980's. During the debate, a standard was developed in June 1987 that terminating a professional relationship in order to have sex was unethical although even this was not incorporated into the Code at that time.

 

            In its revised Code of Ethics in 1992, the American Psychological Assn. (APA) created an absolute prohibition for two years following termination of therapy. Even in relationships which begin after 2 years the psychologist has the burden of showing there has been no exploitation, in light of "relevant factors, including the seven listed below:

 

(1) the amount of time that has passed since therapy terminated,

(2) the nature and duration and intensity* of the therapy,

(3) the circumstances of the termination,

(4) the patient's or client's personal history,

(5) the patient's or client's current mental status,

(6) the likelihood of adverse impact on the patient or client and others, and

(7) any statements or actions made by the therapist during the course of therapy suggesting or inviting the possibility of a post-termination sexual or romantic relationship with the client.


*The December 2002 revision of the code, which became effective 1 June 2003, made virtually no changes, except the addition of the term "intensity" under the second point above.  This does not appear to be a substantive change.  Furthermore, “intensity” is not defined so the interpretation of this requirement is unclear.

            None of the seven points listed above page is elaborated upon or the subject of any explanatory notes in either the 1992 revision or the 2002 revision so no real guidance is offered as to what the expectations are or what the framers of the code thought were the relevant standards in each of these seven areas. 

 

These seven points do not constitute clear-cut "yardsticks" nor do they provide any specific guidance.   For example, to say that the amount of time is relevant does not explain how much longer than 2 years would be acceptable.  The same is true for vague factors such as “the circumstances of the termination,” or for that matter any of the items on the list. 

 

            In the APA code a few standards are provided for terminating. For example, the provision that unless precluded by the client's conduct or other factors* the psychologist discusses the patient's or client's views and needs, provides appropriate pre-termination counseling, suggests alternative service providers as appropriate, and takes other reasonable steps to facilitate transfer of responsibility to another provider if the patient or client needs one immediately.


SOCIAL WORK:

 

            Through the 1980’s the NASW code did not provide a clear & explicit ban on sex with former clients, although the standard in the field was that sex with former clients was generally not acceptable.  The National Federation of Societies for Clinical Social Work have for some years banned initiation of relationships with former clients "...whose feelings toward them may still be derived from or influenced by the former professional relationship." 

 

            The NASW code, starting in 1997, prohibited sex with former clients in section 1.09. However, that section states that if a social worker claims an exception, the full burden is on them to demonstrate "...that the former client has not been exploited, coerced, or manipulated, intentionally or unintentionally." This means that the prohibition is not absolute, and if a client later charged that there was manipulation or that the relationship was exploitive, it would likely be a violation.

 

            The code also bans sexual contact with clients' relatives or close personal friends where there is a potential to harm the client, but it is not clear whether this extends to former clients' relatives and friends.


*The 2002 revision of the APA Code allows for compliance with requirements of health plans which may not permit, or not provide coverage for termination sessions.  (Although the code does not explicitly deal with the issue of payment, the issue is normally payment-related -- not an outright prohibition on a termination session. 

 

This provides a curious standard since while not explicitly saying so, it would appear that the new standards would permit a psychologist to skip doing a full termination simply because he/she would not get paid for it.  Perhaps inadvertently, this would imply that this ethical requirement is secondary to payment and is not required if it would have to be done gratis.) 

 

The 2002 revision is also expanded to include not only behavior of the client/patient which might justify termination, but the conduct of others associated with the client/patient.  This would be a reference to harassment of the psychologist.

 

CONCLUSIONS REGARDING STANDARDS IN ETHICS CODES:

 

            While standards vary, even within professions which work side by side in the provision of psychotherapeutic care and mental health services, the clear trend since the early 1990’s has been towards the prohibition of romantic or sexual relationships with former clients.  No counseling profession believes that simply stopping formal sessions in the office or stopping billing, or writing a "termination note" is sufficient to declare a professional relationship ended.  All counseling professions believe that terminating the professional relationship in order to engage in a sexual relationship is improper and unethical.

 

            By contrast, with general medicine, all that is expected is that the original doctor-patient relationship has been terminated.  We would recommend that a serious discussion be held with the patient about the implications of such a decision, and that all prescriptions be transferred, but the American Medical Association Code of Ethics does not have such formal requirements.  On the other hand, if there has been anything psychotherapeutic which has taken place during he professional relationship, it asks that the psychiatric standard be used which is a standard that says it is “never okay”, no matter how much time has passed.  A large number of physicians have been told that there is a “one year” standard so this is widely believed, although inaccurate.

 

As noted previously, the focus of ethics code standards and licensure rules has been on sexual relationships with former clients – not the broader range of possible involvements. Only one text has focused on post-termination involvements other than sexual relationships with former clients -- Boundaries and Boundary Violations in Psychoanalysis by Gabbard & Lester (1995).

 

There are two texts that argue for post-termination involvements, including intense friendships and even romantic relationships (Heyward, 1993: Ragsdale, 1996), although this point of view is rarely articulated in recent literature.  In the 1970's it was sometimes argued that if a marriage resulted the situation would be considered quite differently. 

 

Even surveys in the late 1980's found therapists rating a marriage to a former client quite differently from sex with a former client (see Schoener, 1989).   For further elucidation of the legal issues with post-termination sexual contact with clients, see Bisbing, Jorgenson, & Sutherland (1995) for a thorough examination.

 

As for those “other types” of relationships, the ones which have been problematic and led to licensure complaints or civil suits have typically involved financial dealings or employment. On the financial side, they have involved sale or purchase of property where a client later claims that the price paid by them was unfair or that the professional was enriched unreasonably by the terms.  Secondly, there have been cases involving employment – related disputes when the professional employs the former client and the arrangement does not work out.  Lastly, there are cases in which the former client has served as an editor or ghost – writer where the eventual project involving the former therapist does not go well.  Again, the former client raises the claim that he or she was exploited or manipulated through the power created by the past relationship.

 

While the literature often focuses on the vulnerability of the former client to exploitation, the professional is certainly at risk in any relationship with a former client which does not go well.


REFERENCES


 

Applebaum, P. & Jorgenson, L. (1991) Psychotherapist-Patient Sexual Contact After Termination of Treatment: An Analysis and Proposal. American J. of Psychiatry, v. 148, p. 1466-1473.

 

Bisbing, S., Jorgenson, L. & Sutherland, P. (1995) Sexual Abuse by Professionals: A Legal Guide. Charlottesville, Virginia: The Michie Company  (also 1997 and 1999 supplements).

 

Gabbard, G. & Lester, E. (1995). Boundaries and Boundary Violations in Psychoanalysis. NY, NY: Basic Books (HarperCollins).

 

Heyward, C. (1993).   When Boundaries Betray Us: Beyond Illusions of What is Ethical in Therapy and Life. San Francisco, CA: Harper/Collins.

 

Gonsiorek, J. & Brown, L. (1989).  Post Therapy Sexual Relationships. In Schoener, G., Milgrom, J., Gonsiorek, J., Luepker, E. & Conroe, R. Psychotherapists' Sexual Involvement With Clients: Intervention and Prevention, pp. 289-301, Mpls., Minn: Walk-In Counseling Ctr.

 

Luepker, E. & Schoener, G. (1989). Sexual Involvement and the Abuse of Power in Psychotherapeutic Relationships.  In Schoener, et. al., op. cit, pp. 65-72.

 

Ragsdale, K. (Ed.) (1996). Boundary Wars: Intimacy and Distance in Healing Relationships. Cleveland, Ohio: The Pilgrim Press.

 

Schoener, G. (1989) Sexual Involvement of Therapists After Therapy Ends.  In Schoener et. al., op. cit., pp. 265-287.

 


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