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
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,
**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
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
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
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.
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
MARRIAGE & FAMILY THERAPISTS:
Since
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
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
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.
Gabbard, G. & Lester,
E. (1995). Boundaries and Boundary Violations in Psychoanalysis.
Heyward, C. (1993). When Boundaries Betray Us: Beyond Illusions of What is Ethical
in Therapy and Life.
Gonsiorek, J. & Brown,
L. (1989). Post Therapy Sexual Relationships. In Schoener, G., Milgrom, J., Gonsiorek, J., Luepker, E. &
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.
Schoener, G. (1989) Sexual Involvement of Therapists After Therapy Ends. In Schoener et. al., op. cit., pp. 265-287.