LEGAL ISSUES

We regularly contact attorneys who specialize in defending mental health professionals. They tell us that over the last few years, there have been subtle changes pointing to increased risk in certain areas. The obvious ones, well known to longtime PsyFin readers, are child custody evaluations, and sexual misconduct. That is, if you avoid sleeping with your clients, and if you’re not in the custody evaluation business, your chances of avoiding legal trouble are much enhanced.

Of course, getting sued isn’t the only way to get into hot water. The truth is, you’re more likely to run afoul of your licensing board than you are to get sued. And that’s not necessarily good news. Unlike the courtroom where there are rules to protect your rights, licensing boards often stack the deck against you.

Recently, we spoke with T. Ryan Mock, an Atlanta-based malpractice attorney who works extensively with mental health professionals. He tells us that board complaints over boundary issues and dual relationships continue to catch therapists unaware.

"I’m seeing too many of these non-sexual friendships, where calls are being placed, and letters are being written. It’s going beyond the boundaries of a professional relationship and you’re asking for trouble."

An extreme example from his files: A psychologist had developed a strong friendship with a patient she’d diagnosed with multiple personality disorder. "My client was basically being sucked into this woman’s fantasy world. The patient would call up and pretend to be one of her alternate personalities. They’d talk on the phone at 11:00 at night or 1:00 in the morning, my client commiserating and crying with her.

"And unbeknownst to my client, their conversations were being recorded. There were probably 80 hours of these conversations on tape. The psychologist thought she was helping by being readily available. In fact, what she should have said was, ‘We have sessions on Tuesday and Thursday from ten to eleven, and that’s when I’ll talk to you.’ Another problem was, she wasn’t billing consistently. That’s a huge mistake and a boundary violation."

The therapist was successfully sued for misdiagnosis and boundary violations. The settlement, Mock says, "was well into the six figures."

At times, Mock allows, boundary issues fall into gray areas. (See the box below.) But in general, he says, you’re better off using these guidelines:

• Avoid "endless therapy" with your self-pay clients. "Too many therapists are guilty of not having an end in sight, or not ending therapy when their goal is reached. Without a game plan, it starts to look like the therapist is milking the client."

•  Document everything. Whatever direction you take the therapy, spell out your rationale in the patient record. "[Mental health professionals] are notorious for keeping poor records," Mock says. Just assume that any record may have to be transferred to another therapist--make sure it would be understandable by a third party.

 •  Be careful who you accuse, and why. After all the repressed memory litigation of a few years ago, you wouldn’t think this still needed saying. But Mock insists it does. "I had a client who was convinced that a child had been sexually molested simply because the child was playing in a sand tray and picked up a rubber snake. There was never any objective evidence." That one, he adds, ended up in court.

You can contact T. Ryan Mock at Hawkins, Parnell, Thackston & Young in Atlanta, (404)614-7400, www.hptylaw.com.