Legal Pitfalls for Therapists

In the Apple TV series Shrinking, Jimmy Laird is a psychologist who has recently lost his wife. Unfortunately, Laird’s personal struggles affect his professional judgment, leading to multiple breaches of conduct. The show is billed as a “comedic drama,” but therapists who view it may find it difficult to appreciate the comedy amongst all the cringe-worthy ethical violations.

In the real world, Jimmy would be subject to multiple lawsuits and the revocation of his license. In this sense, Shrinking effectively encapsulates several of the most common legal pitfalls for therapists, including boundary violations, scope of practice, and confidentiality breaches. Here is an overview of common legal hazards for therapists and how to avoid them:

Excessive or inappropriate self-disclosure

Freud famously wrote that therapists should act like mirrors, reflecting “nothing but what is shown” to them. Most modern therapists, however, use some degree of self-disclosure in their clinical work. Employed effectively, self-disclosure can be used to build rapport and convey humanity. The key to avoiding inappropriate disclosure is contained in the question, “Why am I telling?” or WAIT. If the information shared is not clearly in the best interests of the patient, it’s probably best to keep it to yourself.

Research indicates that therapist self-disclosure is likely to be perceived positively if it is infrequent, low to moderately intimate, short, and responsive to the patient’s needs. This article includes additional questions to help you determine whether self-disclosure is helpful.

Dual relationships and boundary violations

Fifty-six percent of ethics complaints against therapists involve boundary violations. From out-of-office contact, gift exchanges, and inappropriate communication to dual relationships, boundary violations are another common legal pitfall for therapists.

To circle back to Shrinking, the main character Jimmy meets patients for ice cream, involves himself in their personal lives, and even invites one patient to live in his guest house. Jimmy thinks he is acting in the best interests of his patients, but the therapeutic relationship suffers, as does his ability to remain objective.

Sometimes, dual relationships occur unexpectedly, such as when a therapist discovers that a patient attends the same church or has a child in the same school. This may be less avoidable in small towns or rural areas where there is a dearth of providers. However, once a dual relationship is discovered, it should be immediately processed within the context of therapy, and the patient referred to another provider, if possible.

Scope of practice

Scope of practice refers to the knowledge, skills, and experience required to provide effective treatment. To use a medical analogy, you wouldn’t go to a dermatologist for an ulcer, and you wouldn’t want your GI doctor to treat your skin condition. An 8-week rotation does not qualify a medical student to practice within a specific specialty, just as a graduate-level course does not make a therapist a specialist in a discipline or diagnosis.

The Ethics Code of the American Psychological Association (APA) stipulates that therapists practice within their “boundaries of competence,” based on education, training, supervised experience, consultation, study, or professional experience. Psychologist Jeremy Sharp suggests therapists think of these as levels, with competence generally not being established until you reach the last three. If you are in doubt, ask yourself whether you would be able to defend your purported specialization in court.

Failure to obtain peer consultation

The APA requires that consultation be sought when “personal problems may interfere with professional duties.” However, legal experts who review malpractice claims will often look to see whether a therapist obtained consultation in order to determine whether they complied with the standard of care. Regular consultation increases clinical competence, creates a sense of community, and helps to prevent burnout. Interested in joining a consultation group, but don’t know where to start? Check out Belongly’s peer groups, hosted and led by licensed therapists.

Confidentiality breaches

Most therapists don’t knowingly break confidentiality. Yet, breaches still occur. Unfortunately, in the age of electronic communication and telehealth, there are more possible outlets for patients’ private information. Insecure email communications and text messages, billing software that is not HIPAA compliant, and social media, if used inappropriately, can endanger the confidentiality that therapists are ethically obligated to protect.

Your informed consent paperwork should review the limits of confidentiality as outlined by HIPAA. Even so, it’s a good rule of thumb to discuss any release of information with your patient first.

Patient abandonment

There comes a time in any therapeutic relationship when termination is necessary or unavoidable. Patient abandonment occurs when a therapist does not provide adequate notice and/or arrange for replacement care. In addition, there must be an established therapeutic relationship, the patient must still be in need of treatment, and the patient must be harmed in some way by the premature termination.

Examples of patient abandonment include not arranging back-up care for prolonged absences, pausing treatment during a critical stage due to a patient’s inability to pay, and failing to reach out to a patient who has missed a follow-up appointment. In all cases, you can avoid this legal pitfall by documenting your efforts to provide continuity of care, whether this be in the form of a referral to another provider, attempts to reschedule missed appointments, or arrangements for payment plans or sliding scales.

Conclusion:

Season 1 of Shrinking ends with one of Jimmy’s patients committing a crime after she misinterprets what they discussed in therapy. While this is an extreme worst-case scenario, the lesson is sincere: crossing professional and therapeutic boundaries poses a risk to you and your patients. By familiarizing yourself with the laws and regulations in the state where you practice and seeking regular professional consultation, you can avoid legal pitfalls like boundary violations and continue to provide effective and ethical care to your patients.