By Bruce Gross, Ph.D., J.D., M.B.A., DAPA
The liability of a mental health practitioner to her client is legally determined by the nature of the relationship between the two. When the therapist is paid by or on behalf of the client to use her specialized skills and knowledge to the benefit of the client, it is legally defined as a fiduciary relationship. In this relationship, the therapist has a duty to not allow any conflict of interest to compromise her responsibility to the client and to provide a high standard of care; simply stated, therapists have a legal duty not to harm their clients. When a practitioner by intentional or unintentional acts or omissions fails in that duty, they have committed a tort, or a wrong.
Referring to that body of law which allows an injured party to obtain compensation from the person who was the direct or proximate cause of the injury - when injury can be shown - tortuous harm that could arise from psychotherapeutic practice include (but are not limited to):
Misrepresentation. This category of tort might include misrepresentation by the therapist to the client of the therapist¹s qualifications, skills and/or abilities; the nature of the therapeutic relationship and/or process, including outcome; and services actually provided to the client.
Intentional Interference. Based on the concept of false imprisonment, this tort typically occurs only in inpatient settings, be it a psychiatric hospital or detention center where the client is held longer than the law allows for assessment of dangerous to self or others. Liability in this area has also been proven in relation to treatment being undertaken with insufficient examination and/or based on inaccurate diagnosis.
Defamation. The tort of defamation of character can be slanderous (spoken) or libelous (written) and has occurred in cases where the therapist has communicated in oral or written form to a third party (such as a current or future employer, school personnel, or relatives), material that resulted in an injurious outcome for the client (e.g., being fired or not being hired).
Battery. Including physical assault, battery is common cause of liability for mental health professionals, in particular, in the form of sexual contact with a client.
Negligence. A common cause of tortuous injury arising from psychotherapy, negligent acts or omissions can be unintentional, in reckless disregard of the consequences to the client¹s safety or well-being or intentional. Examples of risk areas include: failure to refer when it¹s clear that treatment isn¹t working or the client¹s treatment needs go beyond the training and ability of the practitioner; using treatment methods the profession has clearly determined to be unacceptable or those whose effectiveness are still in debate; omitting a step of treatment; and failing to warn when a duty to warn arises (or making a warning in those jurisdiction where no such duty legally exists).
If a client believes his therapist has committed a tort, he may file a complaint with the therapist¹s licensing board (where administrative action might be taken), to law enforcement (possibly resulting in criminal charges being filed), or bring suit in civil court for damages. In tort liability litigation, the accused therapist is held to the ³reasonable man² standard in which liability is assessed with regard to the circumstances surrounding the alleged tortuous act and the standard of care that would reasonably be expected of another professional with similar education, training and experience in a similar situation. In defense against liability, the therapist must show her behavior was not only professional but also consistent with accepted standards of care and practice for the profession. Two primary sources of such proof come from the utilization of clear, concise and thorough consent forms and the keeping of good progress notes documenting appropriate and acceptable client treatment.
After-the-fact protection comes from maintaining continuous professional liability insurance with good limits and coverage. Malpractice or general liability insurance typically covers the costs associated with investigation and defense against criminal charges and any civil action brought against the practitioner, to include any sum ordered paid to the client as a result of liability for personal injuries arising out of rendering or failing to render professional services. Certain policies offer valuable papers coverage (client files), coverage for equipment (such as computers that may store client records), and business interruption or lost income that may (depending on the policy) cover income lost while involved in litigation.
Beyond civil and/or criminal action, any tort can result in disciplinary action by the therapist¹s licensing agency. That a professional is covered by general liability insurance doesn¹t automatically mean they¹re covered for the costs associated with licensing board actions as not all malpractice policies specifically offer disciplinary hearing coverage. For those that do, it¹s usually in the form of a requested attached policy that is available for a nominal extra charge and has a $30,000 to $50,000 limit. For some companies that don¹t include or offer disciplinary hearing coverage, action by a licensing board can result in increased premium rates and even cancellation of the general liability policy, making it increasingly difficult to get insured elsewhere. Without coverage, out-of-pocket legal fees to respond to disciplinary action can range from a few thousand dollars for a simple investigation to $25,000 or more for a full hearing, regardless of the outcome.
While malpractice insurance is required for many employment settings, according to one national survey 25 percent of therapists practice without it. Considering the expenditure of time, effort and money to become a practicing clinician, insuring the ability to continue doing so by getting full malpractice insurance coverage or by checking and perhaps adding to your existing policy seems a small price to pay especially when considering the alternatives.