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Law and Ethics for California Licensed Social Workers: Boundaries

(6 hours $19)

INTRODUCTION

In mental health, boundary is a term that refers to our personal space as defined by our personal and societal judgments regarding our rights, needs, and dignity. When someone violates these norms or expectations, they are said to have violated someone's boundaries. Social workers must be highly sensitive to boundary issues because of the high legal and ethical standards to which they are held, and because of the boundary problems their clients may have. The boundary problems include being oversensitive or under sensitive to their own or others' boundaries. This may include violating others' boundaries. Boundary problems cause a high percentage of malpractice claims. (Norris, Gutheil, & Strasburger, 2003)

Respect for boundaries equates for respect for the rights of the patient. Something as subtle as sitting too close to a patient that feels uncomfortable about it may be a boundary violation, because it may impede therapy even if the patient is not conscious of it. Guthiel and Gabbard have referred to a boundary as, the edge of appropriate behavior.(Gutheil & Gabbard, 1998)

The fundamental idea that runs through all ethics, and that helps clarify the nature of boundaries is that of client welfare. The American Psychiatric Association has annotated the Principles of Medical Ethics of the American Medical Association in order to help psychiatrists apply these ethics to their practices. These annotations also bear on counseling and psychotherapy in general. Regarding client welfare and boundaries:

A psychiatrist shall not gratify his or her own needs by exploiting the patient. The psychiatrist shall be ever vigilant about the impact that his or her conduct has upon the boundaries of the doctor-patient relationship, and thus upon the well-being of the patient. These requirements become particularly important because of the essentially private, highly personal, and sometimes intensely emotional nature of the relationship established with the psychiatrist. (American Psychiatric Association, 2006)

These annotations also highlight the challenge created by not only a doctor-patient, but also a counselor-client relationship.

Further, the necessary intensity of the treatment relationship may tend to activate sexual and other needs and fantasies on the part of both patient and psychiatrist, while weakening the objectivity necessary for control. Additionally the inherent inequality in the doctor-patient relationship may lead to exploitation of the patient. Sexual activity with a current or former patient is unethical. (Ibid)

Counselors should not be dissuaded from effective interventions because of overly rigid or outdated definitions of boundaries. For example, counselors have observed that an adolescent with emotional problems may say much more on a walk or bicycle ride than sitting face-to-face in an office. Referring to seeing a client outside of an office setting as a dual relationship would be excessive in this case.

Social workers who are adept at interpreting body language and who are fairly patient will be attuned to their client's comfort level. Social workers who are adept at recalling rote principles and adhering to principles will have the advantage of being able to verbalize and follow specific ethical and legal guidelines. Social workers who are quick to solicit advice from appropriate professionals will have the advantage of expert and experienced perspectives for handling tricky situations. All of these traits are valuable in managing boundary issues.

Learning about the following subjects also help with managing boundaries: touch, expressing concern, fee adjustments, pro bono work, the provision of case management and reports, and fee setting, the social work.

Common Practices That Impair Boundaries

Bisbing notes that many therapists engage in common practices that may constitute boundary crossings. Viewed individually, these practices do not usually amount to professional misconduct. However, they may provide evidence of a pattern or practice that supports later allegations of serious misconduct, including sexual misconduct. Such warning signs include:

a) Changing procedures for a patient, including extending appointments, reducing or waiving fees, etc.;

b) Mishandling or not handling "inappropriate client behavior" (e.g., missing appointments, not paying fees, etc.);

c) Inappropriate self-disclosure;

d) Attempts to influence the patient's "philosophical or political positions";

e) Nonprofessional, out-of-office contact with the patient (i.e., for non-therapeutic purposes); and

f) Failure to "terminate the relationship when the (patient) no longer needs therapy. (Bisbing, Jorgenson, & Sutherland, 1995)

Such "lesser" boundary violations may reduce inhibitions and set the stage for greater ethical lapses. Moreover, if a therapist has engaged in such practices, a patient's disciplinary complaints or malpractice claims for sexual misconduct are more likely to succeed: Kuniholm and Church report that "experts observe that claims against therapists for sex abuse are generally more believable in he context of other boundary violations." (Kuniholm & Church, 2002)

"Friendly" Advice May Create a Therapist-Patient Relationship

Malpractice allegations generally must be predicated upon the existence of a therapist-patient relationship. If such a relationship does not exist, it is less likely that plaintiffs will be able to show that a duty of care existed. The duty of care extends to situations such as a brief phone conversation while on call. In such a case, the on call therapist must provide care, diagnosis, or advice that are appropriate. This means sufficient evaluation must be performed to justify the actions taken. This duty includes a brief phone call with someone the therapist has never met.

The duty for appropriate care may extend to situations in which a clinician dispenses advice or treatments to people who the clinician does not consider to be clients. Licensing boards and courts are finding that these activities are clinical rather than informal or friendly, in the sense that they create a duty of care. This means that they create the requirement for adequate evaluation and record keeping. Of course, with standard of care involved, laws that prohibit dual relationships mean that the clinician is still breaking the law, even though he or she has otherwise reached the standard of care.

It is most likely that an LCSW would get into trouble if friendly advice resulted in the kind of bad outcome or boundary problems that would cause someone to complain about the advice. An example of this occurred when a psychologist recommended to an employee that she stop taking her medication and use herbal remedies that he recommended to her. He also provided marital and family advice. He later had a sexual relationship with her. After the sexual relationship and the employment were terminated, the woman and her husband sued the psychologist for malpractice which included sexual misconduct. (Thayer v. Orrico, 72 N.E.2d 919 [Indiana Court of Appeals 2003]).

Although a lower court threw out the claim, the court of appeals decided that a jury must determine if a duty of care existed, based on these criteria: 1) Did the employee meet with the therapist for a clinical purpose? 2) Did the psychologist make any recommendation regarding her condition or treatment? 3) Did the psychologist indicate in some way that he consented to establishing a therapist-patient relationship (for example, by actually providing treatment)?

Dual Relationships

One challenge that LCSW's frequently confront is how to set and maintain appropriate professional boundaries. The therapeutic process, which regularly includes the phenomena of transference and countertransference, necessarily involves intense emotions. Clients tend to be emotionally vulnerable at the best of times; in many instances, the very reasons they seek counseling concern issues such as dependency, isolation, marital and family problems, and other situations that can trigger strong emotional responses during therapy. LCSW's' clients are thus likely to be unusually susceptible to boundary violations. Indeed, they often may not even recognize what boundaries are appropriate and may actively try to exceed them.

Mental health ethicists emphasize that, in all circumstances, it is by definition the responsibility of the therapist, not the client, to set and maintain appropriate professional boundaries. (Pope & Vasquez, 1998) LCSW's must have a firm understanding of which boundaries are appropriate, and must have sufficient confidence and self-control to enforce them. Nonetheless, studies frequently show that therapists regularly list boundary problems as among their greatest ethical challenges.

Business and Financial Relationships

Likewise, LCSW's should not engage in outside business or financial relationships with clients. Such relationships create interdependencies between therapist and client apart from the dynamic of the therapy process, and can have negative effects on that process. In addition, social, business, or financial relationships between an LCSW and a client often create conflicts of interest: The LCSW may develop a "vested interest" in certain outcomes that may encourage him or her to behave in ways that are not in the client's best therapeutic interest. The NASW code of ethics section 4.07 subsection (a) bars social workers from soliciting testimonial endorsements from current clients or others, "who may be vulnerable to undue influence." An individual who provides a testimonial regarding clinical services may expose themselves to stigma.

Self-Disclosure

Self-disclosure by an LCSW is traditionally considered a valid therapeutic technique. However, LCSW's must also be aware that excessive self-disclosure can lead to other forms of boundary violations; it frequently precedes therapist-client sexual contact. Moreover, malpractice suits against therapists often cite "excessive self-disclosure" as evidence of negligent diagnosis and/or treatment.

It can be difficult to determine when self-disclosure becomes "excessive." When in doubt, experts recommend that, before making the disclosure, LCSW's answer the following question honestly: Will making this disclosure truly benefit the client, or will it simply benefit the therapist? The LCSW should not make the disclosure if she cannot truly say that it is for the client's benefit.

Diversity

People of different cultures may have very different ideas and feelings about boundaries. Social workers in training from highly communal cultures have claimed to feel very awkward in refraining from freely offering help that would be considered excessive in western contexts. Physical proximity, the significance of touch, the value of individuality and assertiveness, and many other factors are all culturally sensitive issues. Social workers must collaborate with clients in choosing valid therapeutic outcomes, and this can require cultural sensitivity. It is an excellent subject for continuing education, particularly where the cultures of populations the social worker comes into contact with are concerned. Cultural differences are not necessarily matters of country of origin. Class and lifestyle differences can be sources of misunderstanding and conflict as well.

Minority populations, whether of a minority race, sexual orientation, disability, or other factor, tend to experience more stigma, discrimination and violence, and to have more stress in adapting to mainstream culture and activities. This can bring some groups to counseling at higher rates than the general population.

These are additional reasons for social workers to gain training and experience with minority populations. Being a member of a minority population, however, does not automatically endow the social worker with all the skills necessary to work with that population. It does, however, increase the risk of loss of objectivity or boundaries through over-identification or seeing the client as a source of support or sexual gratification. Specialized training is still advisable.

Small Communities

Social workers must deal with a challenge to the management of boundaries in smaller communities, whether they are social groups that the social worker is involved in, or actual geographic communities such as small towns. It may be a hardship for a social worker in a small town to go to another town for all social and business involvement, and likewise, it may be a hardship for the social worker to limit his or her practice to another town when he or she lives in an isolated area.

Social workers must be very careful to establish expectations on the part of their clients regarding confidentiality and how to interact in public settings when the client encounters the social worker. Often, the social worker must take a cue from the client as to how to interact, so long as it is in the best interest of the client. Social workers in small communities must apply boundary guidelines in a manner that adapts to the situation while preserving the primary value of the client's interest.

Similarly, social workers may be involved in social groupings, but in a limited manner, that allows them to interact with people in a way that may result in their contacts coming to see them or in referring people to the social worker. Such social groupings may include classes and lectures that the social worker conducts, or even certain social groupings that the social worker does not depend upon for social support. For example, a social worker who uses art and who is involved in an organization that promotes art therapy may be visible in that social network as a social worker, and derive clients from that involvement. However, the involvement is primarily as a contribution to the community, rather than an intimate social support network for the social worker.

The social worker will be even more challenged when an acquaintance refers someone to them. If the acquaintance is likely to become a friend, then it is also likely that the person being referred will become a part of the social worker's intimate social network. In that case, the referral should be directed to another social worker.

It has been said that we have the morals that we can afford. This could be taken as advice to maintain solid financial footing while developing a practice. A good means of doing this is by gaining experience in employment that involves a great deal of clinical decision-making and provision of counseling or psychotherapy. This serves the dual purpose of building experience while interacting more intensively with other clinicians that is typical in private practice, as well as maintaining and building a financial base for practice development if a private practice is desired.

Sex with Clients

Key Issues Introduction and Legal Framework

Boundary crossing or violation? Numerous other forms of boundary violations may occur, and some clinicians have run afoul of the board or even incurred civil or criminal consequences because the did not perceive them. It is important to distinguish between a boundary crossing that is not unethical from a boundary violation that may be unethical or criminal.

The board considers a number of factors in assessing the legitimacy of a complaint. While boundary crossings may constitute red flags, they do not necessarily result in disciplinary action. For example, if a client's car broke down and there was a blizzard, a social worker giving the client a ride home would not necessarily be, in itself, anything to object to.

Dependent relationships can lead to complaints. Dependent clients can perceive distancing by the therapist as a betrayal, and feel justified to complain to the board or take other legal action. In one case, the therapist died and it appears that this led the client to falsify a claim of sexual involvement. Distancing by the therapist may occur when the therapist realizes that the relationship has become too close or dependent. That is a key point at which to use great care and get consultation when modifying the relationship.

Generally speaking, experts counsel LCSW's not to see clients outside of the consulting context, and certainly to avoid development of social relationships that can adversely affect the therapeutic process. Likewise, LCSW's should not accept as a client any individual with whom the LCSW has previously interacted in a social context.

The relationship between social worker and client is fraught with motives and needs that can result in sex between social worker and client. This problem is sufficiently notorious, that it is addressed specifically by the law as unprofessional conduct. There was even a senate Task Force on Psychotherapist and Patient Sexual Relations Sex with clients is subject to significant penalties. Any client that a social worker has sex with is referred to as a “former client.” The social worker is the “former social worker.” This stresses the profound change in the relationship, and the inappropriateness of continuing therapy with such a client.

Sex and romance: Perhaps the most obvious form of boundary violation involves therapist/patient sexual and romantic relationships. Of all forms of boundary violations, many experts believe that these are the most harmful. A number of studies have demonstrated that clients who are victims of therapist-patient sexual contact experience disproportionately high rates of adverse effects, including suicide. Experts also note that, perhaps to an even greater degree than other types of boundary violations, therapist-patient sexual contact is always, by definition, the therapist's fault. In many jurisdictions, it is a criminal offense subject to a term of imprisonment; in all jurisdictions, it is a disciplinary offense and constitutes malpractice.

According to the NASW Code of Ethics

The NASW Code of Ethics sections on sexual relationships follows:

1.09 Sexual Relationships

(a) Social workers should under no circumstances engage in sexual activities or sexual contact with current clients, whether such contact is consensual or forced.

(b) Social workers should not engage in sexual activities or sexual contact with clients' relatives or other individuals with whom clients maintain a close personal relationship when there is a risk of exploitation or potential harm to the client. Sexual activity or sexual contact with clients' relatives or other individuals with whom clients maintain a personal relationship has the potential to be harmful to the client and may make it difficult for the social worker and client to maintain appropriate professional boundaries. Social workers--not their clients, their clients' relatives, or other individuals with whom the client maintains a personal relationship--assume the full burden for setting clear, appropriate, and culturally sensitive boundaries.

(c) Social workers should not engage in sexual activities or sexual contact with former clients because of the potential for harm to the client. If social workers engage in conduct contrary to this prohibition or claim that an exception to this prohibition is warranted because of extraordinary circumstances, it is social workers--not their clients--who assume the full burden of demonstrating that the former client has not been exploited, coerced, or manipulated, intentionally or unintentionally.

(d) Social workers should not provide clinical services to individuals with whom they have had a prior sexual relationship. Providing clinical services to a former sexual partner has the potential to be harmful to the individual and is likely to make it difficult for the social worker and individual to maintain appropriate professional boundaries.

1.10 Physical Contact

Social workers should not engage in physical contact with clients when there is a possibility of psychological harm to the client as a result of the contact (such as cradling or caressing clients). Social workers who engage in appropriate physical contact with clients are responsible for setting clear, appropriate, and culturally sensitive boundaries that govern such physical contact.

1.11 Sexual Harassment

Social workers should not sexually harass clients. Sexual harassment includes sexual advances, sexual solicitation, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

Incidence Rates and the Changing Legal Climate

Numerous national surveys prior to 1990 indicate that the number of members of major health professions who report having engaged in sexual contact with their clients is significant-as high as 17% in one survey, and as low as 1%. Although the actual number of sexual misconduct cases is not known, some researchers believe that the actual incidence may be higher than the surveys indicate. However, surveys have shown significantly decreasing rates.

It is very difficult to determine an accurate rate of occurrences of sex between therapists and clients. The earliest studies yielded numbers around 10% of psychiatrists and psychologists. Later studies indicated that the numbers were dramatically declining. It is most likely that increased stigma, training, attention to the issue, and sweeping cultural changes, particularly feminism, have resulted in the declining statistics. However, there is the possibility that stigma has led to less honesty among those surveyed. Sexual misconduct has resulted in a high percentage of malpractice suits against psychotherapists. There have been a large number of successful criminal prosecutions and civil suites, beginning with the 1968 case of Zipkin v. Freeman. The legal bases for civic suits include negligence, malpractice and breach of fiduciary duty. Legislation was formulated beginning in 1983 that now includes criminal and civil statutes.

In California, the number of LCSWs who are disciplined for sexual misconduct each year is relatively small. However, sexual misconduct is one of the most common reasons for disciplinary actions and law-suits against therapists. This demands an effort for on-going self-awareness and sensitivity regarding the issue.

Therapist Feelings, Training Programs

Many therapists are uncomfortable with their own sexual feelings toward clients and with the sexual issues of their clients. This may lead therapists to avoid certain patients, issues, or courses of treatment. They may mishandle non-sexual aspects of treatment and may engage in sexual contact. Unaddressed, these feelings and actions can undermine professional training and resources with regard to sexual boundaries and issues. Research and anecdotes have highlighted such discomfort and avoidance.

Pope (1986c) expresses concern that many training programs are perpetuating the problem by paying inadequate attention to sexual issues and their role in treatment, saying, "Another part of the problem seems to involve training programs, which spend relatively little time addressing issues of sexual contact with or even sexual attraction to clients."

And therapist sexual misconduct is not confined to patients. Studies dating back to the 1970s show that significant numbers of therapists engage in sexual contact with students or trainees. (ibid) Changes in society and training, however, appear to have decreased this over time. (Pope, 1990) Research has suggested that sexual relationships between psychology educators and their students often have adverse consequences. (Schover, Levenson, & Pope, 2006).

History

Dose of reality: It took a long time for the scope and even the reality of the problem to be acknowledged. In the late 1960's, when the first research into the subject was undertaken, the resulting report was suppressed by the Los Angeles APA, despite its own ethical prohibition against suppressing research findings.

The earliest research into rates of sexualized contact with health care providers came from a survey of psychiatrists, obstetrician/ gynecologists, surgeons, internists and general practitioners, and reported that as many as thirteen percent indicated that they had engaged in erotic behavior with patients, with 7.2% acknowledging sex. Of the providers surveyed, psychiatrists and surgeons reported the lowest rate of erotic contact, at 5%.

In the early 1970's, data from malpractice carriers and a poll of psychiatrists revealed that the problem was far more common than believed. In 1971, 11% of male psychiatrists admitted to having sex with at least one patient. 80% of those psychiatrists had sex with multiple patients.

Decreasing rates, change in perception: It appears that the incidence rates of erotic contact between psychotherapists and their clients has decreased a great deal as a result of improved awareness of the issue, its consequences, and because of the large number of successful criminal prosecutions and civil suites, beginning with the 1968 case of Zipkin v. Freeman.114m The legal bases for civic suits include negligence, malpractice and breach of fiduciary duty. Legislation was formulated beginning in 1983 that now includes criminal and civil statutes. (Jorgenson & Sutherland, 1993)

The change in perception that began in the 1970's resulted in claims of sexual abuse by therapists and physicians to begin to be taken seriously. In the decades preceding this change, it was believed that such abuse was rare, that allegations were fantasies, and that allegations of incest were invalid for the same reasons. More time passed before there were laws and ethical codes addressing the problem. It was not until 1991 that the American Medical Associations Council on Ethics and Judicial Affairs codified the injunction against sex between physicians and their patients. Rules comparable to the AMA's were later adopted by the American College of Obstetricians and Gynecologists (1997) and the American Academy of Pediatrics (1999).

Ancient issue: Concerns about sexual misconduct by health professionals are hardly new. The earliest published text to address the issue is the Corpus Hippocratum, "a body of about 70 medical texts compiled by the Library of Alexandria during the 4th and 5th centuries B.C." that includes the "Hippocratic Oath." (Schoener, 1998) The oath states, "I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free." (Ibid) Others have found such admonitions as early as the code of the Nigerian healing arts. (Pope, 2001)

Famous figures: The founders of psychotherapy, including Freud, Jung, Breuer, and Ferenczi either engaged in or sanctioned what today we would call sexual misconduct. They tended to ascribe responsibility for professional sexual conduct to their female patients. (Ibid, Schoener, 1998)

Freud used as a treatment model the 1880 case of "Anna O.," one of Joseph Breuer's hypnosis patients. In treating Anna O., Breuer reportedly did not handle effectively what today would be called the countertransference process. Breuer's wife reacted badly to her husband's infatuation with his patient, and Breuer, in turn, did not cope well with his wife's response: He terminated Anna O.'s treatment, only to rush to her bedside during a "hysterical childbirth." (Ibid) Jones reports that Breuer "fled (Anna O.'s) house in a cold sweat" and the next morning decamped with his wife for a second honeymoon in Venice. (Ibid)

Although Schoener insists that Breuer's relationship with Anna O. "did not involve sexual activity," the record seems less clear. And Schoener offers a troubling coda of his own to Anna O.'s case, asking, "And what happened to Anna O., that troubled young woman? She grew up to be Bertha Pappenheim, a leading feminist, social reformer, and a pioneer in the field of social work in Germany." His conclusion appears to imply that, since Pappenheim became such a productive member of society, Breuer's conduct not only did not harm her but may even have helped her – a conclusion that seems unsupported, at best.

Freud reportedly drew on Breuer's hypnosis practice, including his treatment of Anna O., in developing his psychoanalytic approach. Freud coined the term "transference" to describe the displaced feelings (including romantic and sexual feelings) that his patients developed for him during the analytical process. However, while he asserted that analysts should not become romantically or sexually involved with their patients, he excused such conduct by his male colleagues.

In the most glaring example, Freud inserted himself into a romantic relationship between one of his former students, Horace Frink, and one of Frink's patients. Freud not only urged Frink to leave his wife and marry the patient, but he evidently did so in the service of his own financial interests. (Schoener, 1997) The patient's family was wealthy, and Freud apparently believed that if Frink married the patient, her family would make a significant financial contribution to Freud's own work. (Ibid)

Another incident involved Freud's former student, Ferenczi. One of Freud's former patients, Elma Pálos, later commenced therapy with Ferenczi; at the same time, her mother, Gisella Pálos, was romantically involved with Ferenczi and eventually would become his wife. (Ibid, citing Gabbard, 1995 and Gabbard & Lester, 1995) However, while treating Elma, Ferenczi became sexually involved with her as well as with her mother. (Ibid) While Freud had warned Ferenczi that he should avoid sexual activity with patients, with regard to his involvement with Elma and Giselle Pálos, he also reportedly tried "to influence (Ferenczi's) choice of a mate." (Ibid, citing Gabbard, 1995)

Even in his criticisms of Ferenczi's sexual entanglements with patients, Freud appears to have dismissed such sexual contact as "old misdemeanors." (Ibid, citing Mason, 1984) For his part, Ferenczi contended that those "old misdemeanors," which he characterized as "(t)he sins of youth," "can make a man wiser... Now, I believe, I am capable of creating a mild, passion-free atmosphere, suitable for bringing forth even that which had been previously hidden." (Ibid, citing Mason, 1984, p. 160)

Several years earlier, Carl Jung had likewise become sexually involved with a patient. Sabina Spielrein, a 19-year-old medical student in "desperate mental distress," first came to Jung for analysis and therapy in 1905. (Ibid, citing Gay, 1998) Jung treated her over the next four years, and, according to Gay, "(took) advantage of her dependency (and) made her his mistress." (Ibid) At one point, Jung wrote to Freud that "the situation had become so tense that the continued preservation of the relationship could be rounded out only by sexual acts." (Ibid, citing 236 In other correspondence, he justified this sexual relationship by alleging that Spielrein was "systematically planning (his) seduction." (Ibid, citing McGuire, 1988) Freud responded in kind: Writing of "(t)he way these women manage to charm us with every conceivable psychic perfection until they have attained their purpose," he excused Jung's conduct by faulting Spielrein. (Ibid, citing McGuire, 1988, p. 231)

However, Jung's exploitation of his young patient did not stop with the affair: Rumors of the affair began to circulate, and Jung assumed that Spielrein was responsible. He later admitted: "Caught in my delusion that I was the victim of the sexual wiles of my patient, I wrote to her mother that I was not the gratifier of her daughter's sexual desires but merely her doctor, and that she should free me from her." (Ibid, citing McGuire, 1988) In that same letter, he justified shifting from a doctor/patient to a social relationship "the more easily" because he had not been charging Spielrein professional fees. (Schoener, 1997, citing Donn, 1990) He then suggested that if his patient wanted him "to adhere to strictly to (his) role as doctor," he was entitled to receive "a fee as suitable recompense for (his) trouble." (Ibid) As the situation worsened, Jung even asked Freud to intervene by writing to Spielrein's mother. Freud did so, and subsequently advised Jung not to blame himself for the mess, asserting, "(I)t was not your doing but hers." (Ibid)

In discussing Jung's affair, Bettelheim later argued that, regardless of whether Jung behaved badly toward Spielrein, the "most important consequence" of Jung's relationship with her was that "he cured her." Bettelheim wrote: "True, Spielrein paid a very high price in unhappiness, confusion, and disillusion for the particular way in which she got cured, but then this often true for mental patients who are as sick as she was." However, after Bettelheim's death, his former patients and staff went public with accounts of "emotional and psychological abuse" at his hands.

Freud biographer Ernest Jones also allegedly became sexually involved with a patient while on the faculty at the University of Toronto. Jones denied the allegations and went on the offensive, accusing the former patient and her medical doctor, also a woman, of engaging in a lesbian relationship themselves. "However, his defense was seriously undermined by revelations that he had attempted to pay money to the former patient to stay quiet about the matter."

Psychoanalyst J.L. McCartney also apparently acknowledged engaging in sexual activity with female patients, although he used the deceptively benign term "overt transference" to describe his conduct. According to Schoener, McCartney admitted to such activity with "30% of his female patients, including undressing, genital touch, or sexual intercourse with 10%." Despite the fact that none of his patients filed a formal complaint, his tactics led the American Psychiatric Association to expel him.

Analyst Margaret Mahler wrote of her own experience in training with Aichhorn, which she described as "far from 'classical.'" Mahler seemed to recognize that the fact she and Aichhorn were "very much in love with one another" was not particularly healthy:

In taking me under his wing and vowing to see me restored to the good graces of the Viennese psychoanalytic establishment, Aichhorn only buttressed my self-image as an "exception" . . . . Under Aichhorn's analytic care, I became a sort of Cinderella, the love object of a beautiful Prince (Aichhorn) who would win me the favor of a beautiful stepmother (Mrs. Deutsch). At the same time, my analytic treatment with him simply recapitulated my [O]edipal situation all over again…

Women: Women were not exclusively victims, however. Disciplinary actions regularly involve females. Some of the early female professionals in the mental health field likewise engaged in sexual activity with patients. Karen Horney reportedly was involved in what she characterized as "restricted relationship(s)" with patients. (Ibid, citing Wolff, 1956, p. 87) Her biographer, Susan Quinn, describes a "romantic relationship" between Horney and a young male patient, which Quinn appears to rationalize as an example of "old impulsive ways (that) survived into middle age." (Ibid, citing Quinn, 1988, p. 378) Paris reports that one patient, Leon Saul, "was traumatized by the experience." Horney allegedly became sexually involved with patients and students with some regularity. Schoener describes Horney as having regularly "played favorites" with her lovers, temporarily elevating one to favored status, then suddenly replacing him with another. (Ibid, citing Paris, 1994, p. 142)

Freida Fromm-Reichmann acknowledged engaging in a romantic relationship with a patient: her future husband, Erich Fromm. According to Schoener, Fromm-Reichmann congratulated herself for having the "common sense" to end the therapist/patient relationship before they married. (Ibid, citing Fromm-Reichmann, 1989)

Incidence: The change in perception that began in the 1970's resulted in claims of sexual abuse by counselors and physicians to begin to be taken seriously. In the decades preceding this change, it was believed that such abuse was rare, that allegations were fantasies, and that allegations of incest were invalid for the same reasons. More time passed before there were laws and ethical codes addressing the problem.

It was not until 1991 that the American Medical Associations Council on Ethics and Judicial Affairs codified the injunction against sex between physicians and their patients. (Gabbard, 1989, citing Campbell, 1989) Rules comparable to the AMA's were later adopted by the American College of Obstetricians and Gynecologists (1997) and the American Academy of Pediatrics (1999).

Harm to Clients

Research: Research has associated the following problems resulting or being increased in clients by sex with their counselor: sexual dysfunction, anxiety disorders, psychiatric hospitalizations, suicide risk, depression, dissociative behavior, guilt, shame, anger, confusion, hatred, inability to trust and feelings of worthlessness. (Pope, 1989) It has been estimated that only four to eight percent of victims ever report these experiences. (Gartrell, et al., 1987)

It appears that clients suffer similar kinds of harm at similar rates regardless of the type of health care provider with whom they had sexualized contact. (Feldman-Summers & Jones, 1984, p. 1058)

Controversies remain as to the degree to which clients are harmed and the kind of compensation that should be required in civil suits. Research showing harm in the form of mental disorders resulting from such contact has been criticized on methodological grounds as well as on the bases that a single incident or series of incidents that do not qualify as precursors for post traumatic stress disorder within the DSM-IV criteria cannot be alleged to be the sole source of the disorder in a civil suit.

Although flaws have been pointed out, surveys of clients who have experienced sexual relationships with their counselors offer alarming numbers and types of harm. Even if one takes the position that this kind of harm is not typically the result of sex with a counselor, there remain the matters of abuse of power, the damage to the investment the client has made in counseling, the time and creative energies that the counselor has taken from the client, and the stresses and distractions posed by subjecting the client to circumstances that are highly socially stigmatized and humiliating. In addition, from the perspective of society, there is the damage to the reputation of the profession of counseling, the effect this can have in reducing utilization of appropriate mental health services, and the resulting harm to citizens and society at large. The power imbalance between a psychotherapist and client brings into question the idea that there can be meaningful consent on the part of the client. (Appel, 2004)

Clouded judgment: Add to this the likelihood that a sexual relationship will cloud the judgement of the counselor, potentially resulting in harm or at least inadequate mental health care because of poor professional judgement. There is also the data from research indicating that physicians most likely to engage in sex with clients that result in professional disciplinary processes are more likely to have impairments reflected in inappropriate conduct in medical school. This conduct included irresponsibility, cognitive patterns of being special in ways that made them feel that they were above the rules, and similar problems. Assuming that this applies to other professional groups, including counselors, this is an added incentive for not only a disciplinary process, but also for requiring assessment, supervision and treatment of counselors who have engaged in boundary violations as needed, in cases where such counselors have retained or are working to regain the license to practice.

Rates of occurrence: It is very difficult to determine an accurate rate of occurrences of sex between counselors and clients. Early studies yielded numbers around 10% of psychiatrists and psychologists. Later studies showed the numbers dramatically declining. However, it is unknown whether the increased stigma and attention to the issue resulted in underreporting or an actual reduction in the rate. (Williams, 1992) Sexual misconduct has resulted in a high percentage of malpractice suits against psychotherapists. (Underwager & Wakefield, 1993)

Treatment of reoffenders: Research on outcomes of treatment for counselors who sexually offend has not been encouraging, and these counselors have the ability to keep their sexual activities with clients secret for extended periods.

Some counselors are not merely vulnerable to falling in love or lust with a client, but are actually predatory in their view of clients as sources of sex. A psychotherapist in Colorado decided to become a coach because he believed that he would no longer be subject to laws pertaining to boundaries between client and counselor. This was a poor choice, however, because coaching can easily fall under the law as performing psychotherapy, because of how psychotherapy is defined in most states. (Yourell, 2007, citing Martinez, A., 1999) This is especially true when a psychotherapist performs coaching, because the client has the reasonable expectation that the counselor will use psychotherapeutic skills and knowledge. (Ibid)

Harm Cataloged

The harm caused by therapist sexual misconduct falls into different categories. The most obvious is psychological and emotional harm, which may take a variety of forms.

Pope argues that "perhaps the greatest part of the problem [of therapist sexual misconduct] is that most mental health professionals are unaware – in any specific and emotionally immediate way – of the damage that therapist-client sexual intimacy causes to the client." Despite the fact that therapists realize that such behavior entails risk to themselves, both personally and professionally, and "violat[es] ethical, legal, clinical, and professional standards," therapists "tend to be unaware of the devastating ways in which they are violating the client's welfare, trust, sense of identity, and potential for future development."

Despite this supposed lack of awareness, however, studies conducted over the last 35 years have amply demonstrated the harmful effects of sexual contact between therapists and patients. In 1980, Durre published a study, incorporating research over eleven years that reviewed the effects of, "amatory and sexual interaction between client and therapist." (Pope, 1986) She found that such interaction "dooms the potential for successful therapy and is detrimental if not devastating to the client." (Ibid) The array of negative effects that she reported included "many instances of suicide attempts, severe depressions (some lasting months), mental hospitalizations, shock treatment, and separations or divorces from husbands... Women reported being fired from or having to leave their jobs because of pressure and ineffectual working habits caused by their depression, crying spells, anger, and anxiety." (Ibid)

Another study three years later analyzed responses from therapists treating patients who had engaged in sexual contact with previous therapists. The authors concluded that, in those cases that had been reported, 90% of the clients suffered harmful effects. (Pope, 1986b)

Such effects included:

· Inability to trust;

· Hesitation about seeking further help from health (or other) professionals;

· Severe depressions;

· Hospitalizations; and

· Suicide. (Ibid)

A well-known 1991 study by Pope and Vetter (Pope & Vetter, 1992) likewise concluded that about 90% of patients who became sexually involved with a therapist were harmed by the contact. Perhaps more surprisingly, Pope and Vetter also reported that 80% of such patients were harmed even when the sexual relationship began only after the therapeutic relationship had been terminated. "About 11% required hospitalization; 14% attempted suicide; and 1% committed suicide." And of those patients reporting harmful effects, "only 17% recovered fully," by their own assessments.

The same study also identified what its authors described as, "10 of the most common reactions that are frequently associated with therapist-patient sex." It is significant that none of these reactions is healthy or useful; the best that may be said of them is that their effects are negative. Pope and Vetter define them as follows:

"Ambivalence": Patients suffering from ambivalence often become "psychologically paralyzed, unable to make much progress in either direction." They note that "(a)mbivalence of this kind is often found among those who have experienced other forms of abuse," raising the possibility that therapists who engage in sexual misconduct frequently target patients whose histories of prior abuse make them particularly vulnerable.

"Cognitive Dysfunction": These problems may include "interference with attention, memory, and concentration. The flow of experience will often been interrupted by unbidden thoughts, intrusive images, flashbacks, memory fragments, or nightmares." Pope and Vetter compare the results to post-traumatic stress disorder, noting that such cognitive dysfunction may impair the patient's ability to engage in crucial day-to-day tasks: "These cognitive impairments may interfere significantly with the person's ability to work, to participate in social activities, and sometimes even to carry out the most routine aspects of self-care."

"Emotional Lability": Patients suffering from these effects may find that "intense emotions may erupt suddenly and without seeming cause, as if they were completely unrelated to the current situation. The emotional disconnect can be profound: a person can describe a wrenchingly sad event and burst out laughing, or talk about something funny or wonderful and begin sobbing." Pope and Vetter add that because "emotional lability can involve interrupting the flow of experience with extreme, unpredictable, rapidly shifting feelings," it can leave a patient feeling "helpless," "out of control," or "at the mercy of a powerful, intrusive enemy, an occupying force."

"Emptiness and Isolation": Patients may describe "emptiness" as though "their sense of self had been hollowed out, permanently taken away from them." According to Pope and Vetter, such feelings are often accompanied by a sense of "isolation," leaving patients feeling as though they are "no longer members of society, cut off forever from feeling a social bond with other people." Elma Palos, Ferenczi's patient and sexual partner, and the daughter of the woman who would eventually become Ferenczi's wife, wrote: "This being alone that now awaits me will be stronger than I; I feel almost as if everything will freeze inside me... If I am alone, I will cease to exist." (Ibid)

"Impaired Ability to Trust": As Pope and Vetter note, trust is the linchpin of the therapeutic relationship, a necessary condition for successful treatment:

People may walk into the offices of complete strangers and, if the stranger is a therapist, begin talking about thoughts, feelings, and impulses that they would reveal literally to no one else. Every state, appreciating the exceptionally sensitive nature of the "secrets" that patients may entrust to their therapists, has established in their laws a formal therapist-patient privilege. The ethics codes of all major mental health professions recognize the therapist's responsibility to maintain confidentiality when patients trust the therapist to the extent that they disclose personal information in therapy. Beyond investing therapists with trust regarding their own privacy, confidentiality, and "secrets," patients trust therapists to act in a way consistent with patient well-fare and to avoid intentionally engaging in any behavior that not only is unethical and prohibited by law but also places the patient at so needless a risk for harm.

"Guilt": Patients who become sexually involved with their therapists "may become flooded with persistent, irrational guilt. The guilt is irrational because it is in all instances the therapist's responsibility to avoid sexually abusing a patient." According to Pope and Vetter, "gender effects in this area are significant. It is possible that gender may be associated with the ways in which this irrational guilt develops and is sustained."

"Increased Suicidal Risk": Pope and Vetter cite studies demonstrating that patients who have engaged in sexual contact with therapists have significantly increased risk of both suicide attempts and completed suicides when compared with the general population and other groups of patients. As early as 1983, research suggested that about 14% of psychotherapy clients who were sexually involved with their therapist made at least one attempt at suicide and that about one in every hundred such clients committed suicide. Of those patients reporting harmful effects, "only 17% recovered fully," by their own assessments (Pope, 1986, citing Bouhoutsos, Holroyd, Lerman, Forer, & Greenberg, 1983, pp. 185-96)

"Role Reversal and Boundary Confusion": Therapist/patient sexual relationships turn the therapeutic process upside down:

The sessions and the relationship are no longer about the therapist being of use to the patient in service of the patient's welfare but rather the patient being of use to the therapist in service of the therapist's sexual gratification. The fundamental clinical, ethical, and legal boundary that would prevent a therapist from turning patients into sources for the therapist of sexual pleasure, experimentation, relief, variety, or control is violated.

Significantly, Pope and Vetter note that the harm to a patient from therapist sexual misconduct can be long-term:

The negative effects of the therapist's violation of boundaries and reversal of roles can generalize beyond the therapy and persist long after the termination of the therapy and the sexual relationship. The roles and boundaries that people use to define, mediate, and protect the self may become not only useless for the patient but also self-defeating and self-destructive.

"Sexual Confusion": According to Pope and Vetter, it is unsurprising that patients who have been sexually involved with their therapists "wind up deeply confused about their own sexuality." This can include "significant confusion over (patients') 'true' sexual orientation." But harmful effects can extend beyond issues of sexual identity: According to one researcher, "female patients who had been sexually involved with a prior therapist 'expressed a cautiousness or even disgust with their sexual impulses and behavior as a result of sexual involvement with their previous therapists.'"

Pope and Vetter contend that therapist/patient sexual involvement "leaves some patients believing that their only worth as human beings is to provide sexual gratification to others. Some engage in sex with others on an almost obsessional basis as re-enactment of the sexual relationship with the therapist." Finally, they describe an array of other sexual dysfunctions that may result:

Especially when the patient is experiencing feelings of emptiness and isolation, the specific sexual activities previously experienced with the exploitive therapist--often re-enacted in the midst of flashbacks--may represent an attempt to fill up the self and break through the isolation. For still other patients, sex becomes associated with feelings of irrational guilt. They may engage in demeaning, degrading, joyless, painful, harmful, or dangerous sexual activities that seem to express the conviction: "I am guilty, worthless, and deserve this." Some may become so confused about sexuality that they begin labeling a variety of feelings and impulses as "sexual." They may, for example, say that they are sexually aroused whenever they are feeling intensely angry, depressed, anxious, or afraid.

"Suppressed Anger": It is similarly unsurprising that patients who are victims of therapist sexual misconduct often become angry. However, Pope and Vetter report that such patients often suppress that anger, which may lead to greater harm yet:

(I)t may be difficult for (such patients) to experience the anger directly. Some may feel only numbness in situations that, according to them, would have previously evoked anger. Some may turn the anger inward, becoming enraged at themselves. The anger directed inward may lead to self-loathing, self-punishment, and self-destructive behaviors including suicide.

An essential aspect of these results is that they were provided by psychotherapists who have treated patients who had been sexually involved with a previous therapist. And despite the frequency both of therapist sexual misconduct and of denials that such conduct is harmful, these results suggest that most psychotherapists do indeed recognize that such sexual contact does indeed cause harm.

Defenses

One of the most troubling aspects of the history of sexual misconduct by therapists involves the consequences of such ethical violations. Therapist sexual misconduct produces negative effects not only for patients but for the therapists themselves. And while the mental health professions have begun to acknowledge these consequences and deal with such violations accordingly, one disturbing practice still persists: attempts by the offenders (and their colleagues) to justify their conduct.

Therapeutic Purposes: Some therapists attempt to deny the harmful effects that sexual relationships have on patients by arguing that such relationships are for therapeutic purposes. What Pope characterizes as "[t]his strong and persistent denial" is what, he argues, "enables a number of senior and apparently respected psychologists to use 'client welfare' as a rationale for engaging in sex with the client." They may insist that therapist/patient sexual contact is a valid therapeutic tool, used "for the patient's own good" because the patient would not make therapeutic progress until he or she had engaged in a "healthy" sexual relationship.

Another variation of this "defense" occurs when the patient is a student therapist. Attorney John D. Winer reports representing a client who, as a "therapist-in-training," was undergoing analysis as part of her educational requirements. The therapist who handled her analysis engaged in sexual contact with her, and her psychological state subsequently deteriorated. When she complained, the therapist threatened to sue her for defamation and breach of contract. He also attempted to raise as "defenses" the arguments that he "had the [patient's] best interests at heart," and that, regardless, she "was a sophisticated analyst-in-training and knew exactly what she was doing." Ultimately, the therapist agreed to a $600,000 settlement.

Civil Disobedience: As Pope notes, some studies appear to show that highly-educated therapists who have undergone psychotherapy personally may actually be more likely to engage in therapist/patient sexual contact. He speculates:

It is worth considering whether high educational accomplishment and professional status may not only . . . help perpetrators to avoid detection but also contribute more generally to some psychologists' sense that they and their colleagues are (or should be) above the law and beyond accountability to which other less entitled citizens are subject, that they are too elite and knowledgeable to be subject to such restraints, and that even to call their behavior formally into question is an affront and may be unethical.

It may be this attitude of special entitlement that leads some therapists to attempt to invoke a particularly insidious "defense" to engaging in sexual contact with patients: "civil disobedience." Some practitioners appear to extend the "civil disobedience" argument to boundary violations of all kinds, as well as other ethical and legal lapses. Pope argues: "For psychologists to arrogate this term to avoid accountability for engaging in sexual abuse, keeping secret the sexual abuse of others, committing perjury, faking professional credentials and obtaining expensive gifts from clients seems, at best, misguided."

Use of such a mild term as "misguided" to describe such flagrantly unethical behavior is perhaps itself "misguided." As Pope and Bajt report elsewhere:

[I]n one study of exceptionally accomplished and respected senior psychologists, 9% of those who reported intentionally breaking formal legal and ethical standards revealed that the standard they violated was the prohibition against sex[,] and that this violation was an act of professional responsibility (i.e., that they engaged in sex with the client to promote "client welfare").

True Love: A final "defense" that some MFTs and LCSWs may attempt to use to justify sexual relationships with clients is the supposed "'true love" exception." A therapist who invokes this "exception" argues that his or her sexual relationship with a patient was a product of true love, and thus does not fall into the ethically problematic category that other therapist/patient sexual contact does.

However, as attorney Brandt Caudill notes: "Under no circumstances should any therapist seriously consider a sexual relationship with a present or former patient regardless of how long the interval has been between the termination of the patient and the beginning of the relationship." Such a supposed "exception" does not exist; invoking it certainly will not provide any legal protection for a therapist accused of sexual misconduct. Caudill, who specializes in therapist malpractice cases, particularly those involving sexual contact with patients, warns:

It is almost axiomatic that what is seen as true love at the time the relationship begins is seen as mishandling of transference after the relationship ends. . . . There is no true love exception, there never has been a true love exception, and, in all probability, there never will be a true love exception.

Offender Typing

Assailian and Ravart

Assalian and Ravart (2003 ) agree with other experts that "(t)here is nothing new about sexual contact between health and mental health professionals and their patients." (Pierre & Ravart, 2003) They cite the estimate of Abel, et al., that "half of all psychiatrists will evaluate and/or treat at least one person who was sexually exploited by a previous therapist or other health or helping professional." (Ibid) Assalian and Ravart's work describes three categories of professionals who commit sexual misconduct: the "denier," the "rationalizer," and the "repentant." (Ibid, p. 91) Such professionals' susceptibility to treatment, they argue, varies by category: They suggest use of instruments such as the Minnesota Multiphasic Personality Inventory (MMPI) to diagnose "deniers" and prevent them from "gaming the system," in effect. (Ibid) While they contend that "rationalizers strongly tend to minimize their actions and avoid full responsibility for their behaviour," they may also "show remorse and victim empathy," and "are treatable." (Ibid) However, they find that those in "the repentant group are the best treatment candidates. They take full responsibility for their behaviour and present themselves as sincerely regretful and remorseful, and are willing to involve themselves in therapy to understand their behaviour and change." (Ibid)

Assalian and Ravart further classify offending professionals into "'affective' and 'predatory' types." (Ibid) The conduct of "affective" types, they argue, tends to stem from "unresolved emotional problems," such as mishandling of countertransference, depression, substance abuse, and feelings like resentment or abandonment. (Ibid) "Predatory" types, on the other hand, tend to present with "major personality disorder(s)" that may include psychopathic, narcissistic, or borderline features, among others. (Ibid) They contend that sexual misconduct by predatory offenders "is part of a lifestyle of using and exploiting others to meet one's needs," making them "more dangerous and at risk for reoffending." (Ibid)

Within the affective and predatory categories, Assalian and Ravart have identified seven subtypes: incidental, interpersonal, narcissistic, compensatory, exploitive, angry, and sadistic. They characterize each as follows:

Incidental offenders "have impulsively behaved in a sexually inappropriate manner and their (sic) is only one known occurrence of the behaviour." (Ibid)

Interpersonal offenders "are motivated to establish a close, intimate and long-lasting relationship. The investment in the relationship seems genuine, without clear signs of exploitation or abuse." (Ibid, p. 91-92)

Narcissistic offenders "may or may not be seeking a close, emotional relationship," but "their behaviour more strongly suggests strong needs for attachment, admiration, approval, validation, love and attention." (Ibid)

Compensatory offenders "are more opportunistic and impulsive," and "basically offend to fulfill unmet needs for physical closeness, affection and sexual relations." (Ibid)

Exploitive offenders "purposely use their position of authority and power to achieve their behaviour and fulfill their needs," including "control, power, (and) domination." (Ibid)

Angry offenders "persistently sexually harass and offend against women," "evidenc(ing) strong feelings of hostility, rage and resentment toward women." (Ibid)

Sadistic offenders "enjoy using their power and authority to control and dominate the victim," and get "marked pleasure out of being cruel and provoking suffer(ing)." (Ibid)

Assalian and Ravart are not the only experts to create a classification system for therapists who commit sexual misconduct.

Gabbard

A 1968 article citing a sample from Australia and New Zealand grouped offenders as follows: "11% were psychotic, 11% were alcoholic, 6% were neurotic, and 44% had character disorders." Gabbard grouped offenders into four categories: Those with "psychotic disorders"; those with "predatory psychopathy and paraphilias"; those who engaged in "masochistic surrender"; and those he described as "lovesick." The last category, the "lovesick" offender, is described as encompassing such traits as anger; unresolved issues like denial, repression, or incestuous or other longings; or unrealistic fantasies. Those in the "masochistic surrender" category have "masochistic or self-destructive tendencies," and "allow clients to intimidate or control them." According to Schoener, Gabbard's theory regards therapists in these two categories as treatable and possibly rehabilitatable. On the other hand, "[t]he psychotics and the predators are not deemed good subjects for rehabilitation," at least with regard to the possibility of returning to practice.

Irons

Irons focuses his system of classification on addiction. Evoking Jung, he divides offenders into what he calls "archetypal categories."

"The naïve prince," who "tends to develop 'special relationships' with certain types of clients [and] blurs boundaries" ;

"The wounded warrior," who is "overly dependent" on his professional identity, and regards involvement with clients as a "temporary escape" from the feeling of being "overwhelmed by demands" ;

"The self-serving martyr," whose "work is primary" and who is in the later half of his career, and who tends to be "Withdrawn, angry, and resentful" ;

"The false lover," who tends to be a "risk-taker," and who 'enjoys living on the edge [and] the 'thrill of the chase'" ;

"The dark king," who tends to e "charming" but "manipulative," and who engages in "sexual exploitation as an expression of power" ; and

"The wild card," who "has major Axis I disorder" and "significant difficulties in functioning" both professionally and personally .

In an 88-person sample, Irons and Schneider found that five of the six "archetypal categories" comprised sex addicts; only the group labeled "naïve prince" included no one they classified as a sex addict. Of the others, they classified 14.8% of those in the "wild card" category, 37% of those labeled "wounded warriors," 62% of the "self-serving martyrs," 91% of the "dark kings," and 94% of those labeled "false lovers" as sex addicts. Schoener reports that Irons has continued to refine his classification systems, and has now "developed a typology for hostile and aggressive professionals."

Schoener

Schoener himself (1998), in collaboration with Gonsiorek, has developed a classification system. He notes that, "[w]hile this assessment methodology does not focus on sorting offenders per se, the categories were created to serve an educational purpose." Their methodology comprises six categories of personality types, the first of which includes two subcategories:

Psychotic [and] severe borderlines," including:

Manic disorder

Organic or toxic psychoses

Sociopathic and severe narcissistic personality disorders

Sexual impulse control disorders

Chronic neurotic [and] isolated

Situational offenders

Naïve

Gonsiorek

Gonsiorek (1995) has also refined this classification system, defining these categories more specifically. He categorizes offenders as follows:

Naïve

Normal and/or mildly neurotic

Severely neurotic and/or socially isolated

Impulsive character disorders

Sociopathic or narcissistic character disorders

Psychotics

'Classic' sex offenders

Medically disabled

Masochistic/self-defeating individuals

Schoener and Gonsiorek describe their system as "a rule-out approach":

[T]he assessor attempts to rule out serious pathologies (categories 1, 2, [and] 3). If the offender is probably in categories 4, 5 or 6 then the dynamics of the situation may be of importance. The assessment involves a parallel assessment of both professional history and functioning and personal history and functioning.

They describe their system as "unique" in its "emphasis in attempting to gain detailed background data through an interview of the victim or complainant." This approach, they contend, improves their understanding of the circumstances surrounding an alleged incident in three ways:

It makes it less likely that one can be deceived about what happened

Even when the professional is trying to tell the truth, defensiveness may lead to denial or minimization

Even with a very cooperative subject the person being evaluated only knows part of the story of what happened – each person stores the information differently.

Norris, Gutheil, and Strasburger

While boundary-crossing behavior may be a sign of movement toward client abuse, boundary guidelines have been established that are not validated and do not predict malpractice that could result from a “slippery slope.” (Kroll, 2001) However, the following risk factors have more to do with counselor vulnerability as risk factors, and thus can warn the counselor.

Norris, Gutheil, and Strasburger argue that groups of risk factors exist for both therapists and patients that make it more likely that therapist sexual misconduct will occur. (Patient risk factors are discussed in later in this section.) They divide therapist risk factors into nine groups:

Life crises: Although relatively new practitioners can also be vulnerable to boundary violations, more frequently, "midlife and late-life crises in therapists' development appear repeatedly as precipitants of boundary problems with patients." Norris, et al., cite "the effects of aging, career disappointment or unfulfilled hopes, marital conflict or disaffection, and similar common stress points" as typical triggers.

Transitions: "Retirement, job loss, job change – even promotion – or job transfer" may serve as a trigger "that makes a therapist susceptible to crossing the line with patients." Fiscal difficulties may likewise trigger non-sexual boundary violations involving finances.

Illness of the therapist: Although they describe this context as "relatively underexplored," Norris, et al., report that "[t]herapists' illness appears to increase their vulnerability to turning inappropriately to a patient for solace and support." Related factors in this category include "death anxiety" and "fears of mortality."

Loneliness and the impulse to confide: The most common manifestation in this category is inappropriate self-disclosure. Norris, et al., note that such impulses may arise when a "therapist encounter[s] some life difficulty and seek[s] a 'sympathetic ear,'" or when "the otherwise laudable desire to find common ground with a patient . . . miscarry[ies]." They report: "In part, therapists' uncertainty stems from the empirical observation that self-disclosure is often the final boundary excursion before sexual relations, even though self-disclosure does not in itself lead inevitably to that outcome." They also warn that therapists may confuse countertransference with "honesty," leading to inappropriate self-disclosure.

Idealization and the 'special patient': Some "early harbingers" of boundary violations include mishandling of "countertransference attitudes," including the tendency to regard a patient as somehow "special." Norris, et al., cite as examples of characteristics that lead therapists to idealize their patients "beauty, youth, intellect, fame or status in the community, or therapeutic challenge." Such idealization may be "highly threatening" to the therapist, "creating anxiety that may distort clinical judgment." Therapists may even handle their treatment of such patients differently:

"Scheduling excessive or excessively long sessions, especially at the end of the day; giving permission to run up a high unpaid balance; making special allowances for the patient; and having nonemergency meetings outside the office. Therapists seeking consultation on such cases often begin the request with[:] "I don't usually do this with my patients, but in this case . . . ."

Pride, shame, and envy: "[A] pitfall that is especially relevant to very senior therapists, who are often sought out for consultation, is their inclination to brush aside the need to seek consultation themselves." Norris, et al., report that one therapist "resisted undergoing such a review on the grounds that he knew the consultant would tell him the relationship with the patient was wrong and should be terminated. They also argue that, "[i]n its extreme form, this narcissistic difficulty supports the belief that one is above the law and that the usual rules do not apply."

Problems with limit[-]setting: Regardless of whether a patient attempts to transgress appropriate boundaries, it is the job of the therapist to ensure that professional limits are maintained. Norris, et al., report that "[a] common barrier to appropriate limit[-]setting is the therapist's countertransference conflicts about aggression or sadism when the prospect of the patient's expected distress, discomfort, or frustration at being told 'no' is intolerable to the therapist." Such problems often arise in the context of treating a patient who displays "unrestrained rage."

Small town issues: In this context, the label "small town" may refer to any isolated or insular environment: an actual community with a small population; certain types of institutions (e.g., schools); or specific "subcultures" (Norris, et al., cite as an example urban gay and lesbian "subcultures"). Such small groups make it likely that therapist and patient will come into contact with each other in social (or at least non-professional) settings.

Denial: Norris, et al., report that "denial about early problematic situations, which can lead to their evolving into full-fledged boundary disasters, is another common factor in clinical misadventures." This is especially true, they argue, "with more seasoned and experienced therapists." Therapists who deny that the problem exists may engage in "[e]vasion, externalization, and rationalization to help maintain the pretense that boundary violations are not serious, not harmful, or even not occurring at all."

Regardless of the classification model used to label offenders, Schoener notes that certain aspects are common to each. One such aspect is "stress[ing] the importance of clearly defining the supervision" of an offender. "It is critical," he argues, "that [the supervision's] goals and requirements be spelled out in detail, and that case consultation (voluntary sharing of clinical material, often termed 'supervision') be differentiated from true supervision wherein the supervisor is legally responsible for the practice oversight."

Therapeutic Circumstances

Pope and Bouhoutsos (1986) have also created a classification system, but rather than focusing directly on types of offenders, they instead identifies ten "scenarios" in which therapist sexual misconduct tends to arise. Their system labels these scenarios as follows:

Role Trading: The therapist takes on a dependent or patient-like role and the relationship focuses on his or her wants and needs.

Sex Therapy: The therapist, "...fraudulently presents therapist-client sexual intimacy as a valid..." course of treatment.

As If : The therapist, "...treats positive transference as if..." it were naturally-occurring, genuine feelings rather than a result of the dynamics of therapy.

Svengali: The therapist, "...creates and exploits an exaggerated dependence on the part of the client."

Drugs: The therapist uses drugs or alcohol, "...as part of the seduction."

Rape: The therapist, "...uses physical force, threats, and/or intimidation."

True Love: The therapist, "...discount[s] the professional nature..." of the therapist/patient relationship, rationalizing the erotic feelings as true love.

It Just Got Out of Hand: The therapist mishandles transference and/or countertransference, the emotional closeness, and other feelings that develop as a result.

Time Out: The therapist disregards the fact that, "...the therapeutic relationship does not cease to exist," outside of the office.

Hold Me: The therapist, "...exploits the client's desire for nonerotic physical contact," as well as any difficulties the patient may have in, "...distinguishing between erotic and nonerotic contact." (ibid)

However, the approach Pope and Bouhoutsos use makes clear that sexual contact between therapist and patient does not necessarily occur only with a particular type of offender. Therapist sexual misconduct does not require, "...a scheming, malicious therapist overpowering – perhaps by physical force – a reluctant client." (ibid) Rather, particular circumstances (or combinations of circumstances), coupled with a lack of preparation or an unwillingness to face therapeutic realities and professional responsibilities, may be at the root of many occurrences of therapist/patient sexual contact, regardless of the therapist's personality type.

With regard to this set of factors, Pope concludes that therapists must recognize – and accept – two crucial elements of the therapeutic relationship. First, "[i]t is crucial that therapists be aware of the diverse paths to intimacy." Second, "[i]n every instance and without exception, it is always the therapist's responsibility to ensure that sexual intimacies with a client do not occur." (ibid)

Pope also cites a number of "contributing factors" that make it possible for incidents of therapist/patient sexual contact to occur. These factors, he argues largely fall into three broad categories: "varieties of sexual involvement"; "training issues"; and "denial." (ibid)

Patient Characteristics

Finally, some experts classify incidents of therapist sexual misconduct according to traits that appear to be common to particularly vulnerable victims. Citing work by Simon and by Pope and Bouhoutsos, Kuniholm and Church (2002) report that certain characteristics of vulnerability have been identified as placing the patient at greater risk of exploitation:

Depressed patients or patients who have lost a loved one;

Dependent personalities;

Patients who have a history of child sexual and physical abuse;

Patients with serious psychiatric illness or substance abuse problems;

Patients with impaired mental and personality function (low self-esteem, dependent,

Difficulty with reality, self-destructive, or impulsive);

Physically attractive patients with low self-esteem;

Patients with low intelligence; [and]

Patients with a history of chronic illness as children.

Norris, Gutheil, and Strasburger, (2003) classify patient victims into six more formal categories. These include:

Enmeshment: Some patients, "...may seek dependency rather than autonomy," and look for a protective therapist. During the treatment, the result can become an, "...intensely enmeshed, symbiotic relatedness," which makes it difficult or impossible for the patient to terminate either the sexual or the therapeutic relationship, or to report the boundary violation(s) to appropriate authorities.

Changing roles: from victim to actor: Due to transference, a patient sometimes, "...imbues the therapist with healing powers and intent." Such a patient is unlikely to be assertive enough to challenge the psychotherapists prescribed course of treatment, even when that treatment includes sexual contact.

Retraumatization: This poses a particular problem for patients who seek therapy for earlier traumatic experiences (e.g., child abuse, etc.). One expert describes such patients' situation as "sitting duck syndrome." According to Norris, Gutheil, and Strasburger, "...boundary violations and even outright abuse by the therapist may recapitulate (the patient's traumatic) early experience, including felt helplessness to enact any escape or remedy."

Shame and self-blame: Despite the fact that therapist/patient sexual contact is by definition the fault of the therapist, patients who are victims of such misconduct often blame themselves. However, they blame themselves not only for, "...failure to know better, failure to recognize abuse," "having made foolish choices," etc., but for, "...causing the therapist to lose control or cross the line," for "being 'too seductive,'" or for "bear(ing) full responsibility for the (therapist's) conduct."

True love: Some patients have few or no personal relationships in their lives, leading them to focus too intensely on the therapeutic relationship. "The relationship with the therapist may appear the only or the last chance for 'true love' in the patient's sphere."

Dependency: According to Norris, Gutheil, and Strasburger, dependency provides at least part of the context for most boundary violations. In some cases, what appears to be a boundary violation by the patient may in fact mask other problems: They recount a patient who, after entering a nursing home, began to call (her therapist) 'honey' and 'dear'" rather than by his title and touched him repeatedly. When the therapist told her of his concerns about her behavior, she began "sobbing that she had lost her memory and could not recall his name."

Warning Signs

According to Kuniholm and Church (2002):

Sexual contact is not necessarily a prerequisite for a malpractice claim based on inappropriate boundary violations by a therapist. It is generally accepted among psychotherapists that interaction between patient and therapist that transgresses professional boundaries is inappropriate and may be harmful even without blatant sexual contact.

Bisbing, Jorgenson, and Sutherland (2004) note that many therapists engage in common practices that may actually be boundary violations themselves. Such practices, when taken individually, usually do not amount to professional misconduct; however, they may provide evidence of a pattern or practice that support later allegations of serious misconduct, including sexual misconduct. Such warning signs include:

Changing procedures for a patient, including extending appointments, reducing or waiving fees, etc.;

Mishandling or not handling "inappropriate client behavior" (e.g., missing appointments, not paying fees, etc.);

Inappropriate self-disclosure;

Attempts to influence the patient's "philosophical or political positions";

Nonprofessional, out-of-office contact with the patient (i.e., for non-therapeutic purposes); and

Failure to "terminate the relationship when the [patient] no longer needs therapy. (ibid)

Simon (1996, pp. 135-36) lists 29 separate "precursor boundary violations," any or all of which may signal impending therapist/patient sexual contact. They include:

1. Failing to maintain therapist neutrality and treatment boundaries;
2. Failure to obtain a proper psychiatric history;
3. Failure to properly evaluate a vulnerable patient;
4. Failure to manage the transference-countertransference;
5. Failure to diagnose a dependent personality disorder;
6. Failure to render appropriate treatment;
7. Improper use of psychotropic drugs;
8. Using alcohol with the patient;
9. Contributing to the patient's drug and alcohol use;
10. Failure to monitor drug therapy;
11. Failure to consult;
12. Failure to refer;
13. Treating outside of the psychiatrist's expertise;
14. Infantilizing the patient;
15. Abandoning the patient . . . ;
16. Confidentiality violations;
17. Deception;
18. Exploitative use of hypnosis;
19. Improper use of somatic therapies;
20. Encouraging acting out;
21. Use of drugs with patient;
22. Using patients to perform work for the therapist;
23. Failure to obtain informed consent to "innovative procedures";
24. Failure to set limits on the patient's behavior;
25. Advising against education, training, and professional advancement;
26. Exploiting the patient's financial assets;
27. Use of regressive techniques;
28. Terrorizing the patient; [and]
29. Instructing patients to engage in potentially harmful activities outside of therapy.

Such lesser boundary violations may reduce inhibitions and set the stage for greater ethical lapses. Moreover, if a therapist has engaged in such practices, a patient's disciplinary complaints or malpractice claims for sexual misconduct are more likely to succeed: Kuniholm and Church report that, "...experts observe that claims against therapists for sex abuse are generally more believable in he context of other boundary violations." (ibid)

Law

Legal status: Psychotherapist sex with a client is illegal during therapy, within two years after the termination of therapy, when therapy is terminated prematurely in order to have sex after termination, and by means of therapeutic deception (“…a representation by a psychotherapist that sexual contact with the psychotherapist is consistent with or part of the patient's or former patient's treatment.”) (Bus. & Prof. Code § 728; Civil Code § 43.93)

In the Introduction to the pamphlet Professional Therapy Never Includes Sex, developed by the California Department of Consumer Affairs, the taboo is explained in a very straightforward way: (Bus. & Prof. Code § 728 a)

Consumers are looking for professionals they can trust. Social workers value the trust of their patients. When this mutual trust is violated by sexual exploitation, everyone loses. The patient loses an opportunity for improved health and becomes a victim. The social worker stops being a healer and becomes a victimizer. And the profession itself loses when the good reputation of the many is diminished by the illegal conduct of a few.

Regulation: The California Board Of Behavioral Sciences Laws and Regulations Relating To the Practice of Marriage And Family Therapy states the following as a violation:

“Engaging in sexual relations with a client, or a former client within two years following termination of therapy, soliciting sexual relations with a client, or committing an act of sexual abuse, or sexual misconduct with a client, or committing an act punishable as a sexually related crime, if that act or solicitation is substantially related to the qualifications, functions, or duties of a marriage and family therapist.”

According to California laws:

Any act of sexual contact, sexual abuse, sexual exploitation, sexual misconduct or sexual relations by a therapist with a patient is unprofessional, illegal, as well as unethical as set forth in Business and Professions Code sections 726, 729, 2960 subsection (o), 4982 subsection (k), and 4992.3 subsection (k).

Sexual contact means the touching of an intimate part of another person, including sexual intercourse.

“Touching” means physical contact with another person either through the person's clothes or directly with the person's skin.

“Intimate part” means the sexual organ, anus, groin, or buttocks of any person and the breast of a female.

Sexual exploitation can include sexual intercourse, sodomy, oral copulation, or any other sexual contact between a therapist and a patient or a former patient under certain circumstances.

Sexual misconduct includes a much broader range of activity, which may include fondling, kissing, spanking, nudity, verbal suggestions, innuendoes or advances. This kind of sexual behavior by a therapist with a patient is unethical, unprofessional and illegal.

The purpose of these rules and laws is to ensure that clients have high quality and safe care from counseling professionals.

Rigid enforcement: For purposes of professional liability and the potential for disciplinary sanctions, the circumstances surrounding such conduct are irrelevant. This is true regardless of whether the conduct occurred outside the context of professional counseling sessions or off the LCSW's professional premises, or even if the conduct was "consensual." Such conduct violates state law and the NASW Code of Ethics, and thus may subject the LCSW to potential professional, civil, and even criminal penalties.

While LCSW's' compliance with state regulatory and ethical requirements may be motivated in part by the possibility of lawsuits and criminal penalties, ethical issues permeate the practice and process of counseling.

If the clinician learns of a sexual relationship: If a social worker learns of sex between an adult client and a former social worker of that client, the social worker is required to give the patient the brochure entitled, "Professional Therapy Never Includes Sex" by the California Department of Consumer Affairs, and to discuss the brochure with the patient. (Pen. Code § 11166.05) This brochure strongly encourages clients to complain to the state board about a psychotherapist who has encouraged a sexual relationship with the client, saying, “If you are a victim of sexual abuse by a social worker, it's important for you to report your experience to the board that licenses your social worker.” (Ibid) However, the social worker is not permitted to report this violation, because of laws protecting client confidentiality. Such information is protected as private.

Summary: Sexual contact and misconduct by a social worker with a client is illegal. Social workers who learn that a client has had sex with a prior social worker must give the client a pamphlet designed by the state that prompts the client to report it to the board. Sexual misconduct includes tactics such as terminating therapy in order to have a sexual relationship with a client. Sex with a client is illegal for two years after termination of therapy with the client.

Professional and Legal Consequences

LCSW's who engage in sexual conduct with clients expose themselves to specific potential legal consequences. These fall into three major categories: licensure actions, civil litigation, and criminal charges.

Civil Litigation

Introduction

Across the country, attorneys and even entire law firms specialize in therapist misconduct lawsuits. Some have practices devoted exclusively to defending therapists; others limit their practices exclusively to representing plaintiffs in suits against therapists. And as Schoener reports, "more than 50% of legal costs on behalf of psychologists in the U.S. are accounted for by sexual misconduct cases." However, he also notes that this "does not mean that the sexual activity per se was the major cause of the damages." "[A] great range of non-sexual misconduct is present in most 'sex cases,'" and actual liability may instead be caused directly by the non-sexual misconduct, such as breach of fiduciary duty or mishandling of the transference phenomenon. In such instances, "damage would have been done even had the sexual contact not occurred."

Jorgenson and Sutherland identify seven categories of "causes of action," or grounds for a lawsuit, under which therapists who commit sexual misconduct may be sued: 1) negligence and malpractice; 2) breach of fiduciary duty; 3) negligent infliction of emotional distress; 4) intentional torts; 5) breach of contract or breach of implied warranty; 6) "spousal claims"; and "employer liability." With regard to patient lawsuits against therapists, malpractice is by far the most common cause of action, and negligence is by far the most common type of malpractice alleged in such suits.

Negligence and Malpractice

Negligence generally requires four basic elements: The defendant must 1) owe a duty of care; 2) must breach that duty; 3) harm must occur; and 4) the harm must be a result of the defendant's breach of duty. California laws outline the duties a therapist owes to patients. Breach of any of these duties risks harm to the patient – and legal liability to the therapist.

Increasingly, therapist malpractice suits involve allegations of therapist sexual misconduct. The first successful patient lawsuit to allege negligence based on therapist/patient sexual contact was decided in 1968. It was also the first such suit to ground its theory of negligence explicitly in the notion of mishandled transference. Despite the fact that the case is nearly 40 years old, in many ways it remains a standard in therapist sexual misconduct litigation.

Zipkin v. Freeman

Because of the transference that occurred during the course of treatment, Mrs. Zipkin developed romantic feelings for her psychotherapist, Dr. Freeman. Freeman embarked upon a romantic relationship with her that transgressed a number of professional boundaries. During the course of the relationship, they engaged in "nude swimming" with a number of Dr. Freeman's other patients, overnight trips, and sexual contact. Dr. Freeman convinced Mrs. Zipkin to leave her husband and children, steal her husband's clothing for Dr. Freeman's use, use her savings to buy him a farm, and work the farm as one of his employees.

Eventually, the relationship ended, and Mrs. Freeman sued Dr. Zipkin for negligence, alleging that she had suffered "remorse, humiliation, mental anguish, loss of respect of friends and family, was made nervous and unable to sleep, suffered headaches, was irritable and suffered financially." The Missouri Supreme Court agreed – and its decision also foreshadowed Kuniholm and Church's assertion that "interaction between patient and therapist that transgresses professional boundaries is inappropriate and may be harmful even without blatant sexual contact." The court concluded: "It is pretty clear from the medical evidence that the damage would have been done to Mrs. Zipkin even if the trips outside the state were carefully chaperoned, the swimming done with suits on, and if there had been ballroom dancing instead of sexual relations."

John D. Winer, a California plaintiff's attorney who specializes in such cases, claims to have obtained millions of dollars' worth of verdicts and settlement agreements in therapist sexual misconduct cases. One settlement, for half a million dollars, was awarded to a client who had lived briefly with her psychiatrist after the psychiatrist terminated her two-year course of treatment. According to Winer, "[i]t became clear that the [psychiatrist], through inappropriate psychotherapy techniques and abuse of the transference phenomenon, had been 'setting up' the plaintiff to engage in the sexual relationship for the last eight months of therapy."

In another case involving a therapist/patient sexual relationship that began after the termination of treatment, the patient was awarded a $490,000 settlement. According to Winer, "expert witnesses" who "debriefed" the patient "indicated that the psychiatrist had committed multiple acts of negligence and malpractice during the time of treatment which 'set the plaintiff up' for the sexual relationship which was to follow." Moreover, as in Zipkin, the sexual contact was far from the only problem: Testimony "indicat[ed] that the damage to the [patient] was not caused by the sexual relationship which, in fact, did not injure her, but was caused by the therapist's malpractice[,] which destabilized the plaintiff and her relationship with her own family and caused her to become addicted to prescription medication."

Malpractice Insurance Issues

Therapist malpractice insurance policies frequently include clauses providing that the insurance company is not liable for claims arising from the therapist's sexual misconduct. Courts vary in their application of such clauses: Some uphold them, finding that the therapist is personally liable for any damages arising out of sexual misconduct claims; others refuse to enforce such clauses, holding the insurance company liable, at least in part, for such damages.

Such a clause played a role in the case discussed above, involving the patient who was awarded a half-million dollars when her psychiatrist used the "last eight months of therapy" to "set her up" for the subsequent sexual relationship. The insurance company argued that "sexual misconduct was excluded under their insurance policy," it ultimately paid a portion of the overall settlement. The therapist was personally liable for the balance.

In a 1998 Texas case, however, the court held that an insurance policy provision limiting liability to $25,000 in cases arising out of therapist sexual misconduct was valid, and superseded any public policy interest in removing such caps as a way of encouraging sexual abuse victims to report the abuse. In American Home Assurance Company v. Stephens , therapist Billy Stephens's malpractice insurance company sued him to recover damages awarded to one of Stephens's patients for sexual misconduct. The original malpractice suit was brought by Rory Ross, who had undergone four years of treatment and sexual contact with Stephens. Ross subsequently filed a malpractice claim, on grounds that he had negligently misdiagnosed her and that his course of treatment had been negligent. American Home defended Stephens at arbitration, but lost: Ross was awarded $2.9 million.

American Home contested the award in federal court, arguing that a clause in Stephen's policy capped coverage for any claims arising out of therapist sexual misconduct at $25,000. The court agreed, concluding that the insurance company could be held liable only for a maximum of $25,000. On appeal, the Fifth Circuit Court of Appeals found that the state's public policy interest in encouraging victims of therapist sexual misconduct to report the abuse was better served by refusing to enforce such caps. Holding that such a public interest superseded the private contractual provisions of the insurance company's policy, the Fifth Circuit initially overturned the trial court's decision.

However, the appellate court then asked the Texas Supreme Court to issue its interpretation of Texas law with regard to the competing interests of encouraging reporting of sexual misconduct and upholding private contractual agreements. The Texas Supreme Court held that, under Texas law, American Home's policy provisions superseded public policy interests in encouraging reporting by refusing to enforce coverage caps. Ultimately, American Home's $25,000 cap was enforced, leaving Stephens personally liable for the balance of the $2.9 million award.

As noted above, the pervasiveness of exclusionary clauses and coverage caps makes it unwise for therapists to assume that their malpractice insurance will cover all damages arising out of claims of sexual misconduct; malpractice insurance is likely to cover only a portion of the award at best, and indeed may cover none of it at all. However, as the wide disparities among the decisions in the American Home litigation makes clear, insurance companies likewise should not assume that the presence of such a clause in an insurance policy will insulate the company against damage awards for therapist sexual misconduct. In most cases, whether damages will be assessed against therapist, insurer, or both, and in what proportions, is likely to vary widely according to jurisdiction, the wording of the insurance policy and any applicable laws, and the individual facts of each case.

Breach of Fiduciary Duty

Many different kinds of relationships, particularly professional relationships, may involve a fiduciary duty. A fiduciary duty is a duty imposed, generally, on the more powerful party to act in the best interest of the less powerful party. A lawyer, for example, has a fiduciary duty to her clients, who place their trust and confidence in her hands; she has special expertise they do not, and they retain her and pay her fees with the understanding that she will use that expertise to represent their interests. Similarly, a physician has a fiduciary duty to his patients: They seek his medical advice because he has the specialized knowledge and skill necessary to deal with their health problems in ways that they cannot – and, again, they pay his fees in the expectation that he will use that knowledge and skill to make them well.

Roy v. Hartogs

An early therapist sexual misconduct suit based on breach of fiduciary duty was the 1976 case Roy v. Hartogs. Ms. Roy was treated by Dr. Hartogs over a 13-month period. She alleged that Hartogs purported to "'treat' [her] for her lesbianism by engaging in sexual relations with her." Roy claimed that sexual relations as a method of "treatment" were a breach of fiduciary duty. Hartogs claimed that her allegations amounted not to breach of fiduciary duty, but to "alienation of affection," an obsolete cause of action no longer recognized by the courts. However, the court upheld Roy's right to pursue a claim for breach of fiduciary duty, holding that she "allege[d] coercion by a person in a position of overwhelming influence and trust."

Negligent Infliction of Emotional Distress

"Emotional distress" may be inflicted either negligently or intentionally. Negligent infliction may occur as a result of a therapist's failure to do something required under customary standards of practice. However, such a failure may not involve an overt act or omission; rather, it may result from a therapist's mishandling of some part of the therapeutic process, such as transference or countertransference.

As a cause of action, emotional distress encompasses a host of emotional and psychological difficulties. In Zipkin, for example, Mrs. Zipkin alleged that she suffered "remorse, humiliation, mental anguish, loss of respect of friends and family, was made nervous and unable to sleep, suffered headaches, [and] was irritable." A patient who files a claim for emotional distress might allege some or all of these difficulties. It might also include such claims as depression, anger, or thoughts of suicide, as well as an wide array of other emotional problems. And despite the fact that Mrs. Zipkin grounded her claims in negligence, it seems likely that today, the facts present in Zipkin might support a claim for intentional infliction of emotional distress, discussed in the next subsection.

Richard H. v. Larry D.

A 1988 California case upheld a claim for negligent infliction of emotional distress where the sexual contact occurred not between therapist and patient, but between the therapist and the patient's spouse. In Richard H., the patient apparently initially sought treatment because of marital difficulties. In addressing his emotional distress claim, the court held: "It is readily foreseeable that a patient seeing a psychiatrist for purposes of stabilizing and improving his or her marriage would feel betrayed and suffer emotional distress upon learning that the psychiatrist has, during the course of the patient's treatment, been engaging in sexual relations with the patient's spouse."

Negligent infliction of emotional distress is sometimes used to hold therapists liable for harm to so-called "secondary victims" – third persons – resulting from the practitioner's sexual relationship with a patient. Generally, such claims apply to family members – e.g., spouses, parents, etc. In a 1989 case, Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. , a mother sued a therapist and his employer for allegedly sexual assaulting her child, who was a patient. Her suit alleged negligent infliction of emotional distress; the defendants challenged the validity of the cause of action. However, the court permitted her claim for emotional distress to go forward.

Intentional Torts

A "tort" is an action one person commits that harms another. And "intentional tort" is precisely what its name implies: an act that a person commits intentionally to harm another person. Intentional torts take a variety of forms: Assault, battery, intentional infliction of emotional distress, and "fraudulent misrepresentation" are just a few examples that are likely to be especially relevant in cases of therapist sexual misconduct. As with sexual misconduct generally, malpractice insurance policies traditionally exclude intentional torts from coverage. MFTs and LCSWs thus may be personally liable for intentional torts. However, insurance companies likewise should not assume that the existence of an exclusionary clause will in all cases prevent liability for an insured therapist's intentional torts. As with sexual misconduct generally, some courts may hold that other laws or policy interests supersede such clauses.

As noted previously, in many jurisdictions, any sexual contact between therapist and patient is nonconsensual from a legal standpoint. The nature of the therapeutic process is so psychologically and emotionally intimate, and may involuntarily produce such great psychological dependency on the part of the patient, that the patient cannot be said to have given "consent" to such a relationship. Thus, any sexual contact by the therapist may leave him or her open to claims of assault and/or battery.

In most jurisdictions, "assault" is generally defined as an act that a reasonable person would interpret as an attempt to touch him or her in an unwelcome way. In other words, the act need not necessarily be physically violent, such as a punch, nor cause demonstrable physical harm, such as a black eye or a broken nose. Something as simple as a hug, under certain circumstances, may constitute an assault. Perhaps even more important, no actual "touch" need even occur: The victim only needs to fear that the touch is going to occur, and that fear needs to be reasonable considering all the circumstances. "Battery," on the other hand, does require that a "touching" actually occur, but again, the touch may be a hug or a pat. If it occurs without the person's consent and a reasonable person would find it harmful or offensive under the circumstances, it is a battery. With regard to claims of assault and battery, context is of the utmost importance, and this is perhaps nowhere more true than in the therapist/patient relationship. (In addition to providing causes of action in civil personal injury litigation, assault and battery may also subject the MFT and LCSW to criminal charges. These are discussed in the next subsection.)

As noted in the previous subsection, emotional distress may also be an intentional tort. Because of both the imbalance of power inherent in the therapist/patient relationship and the emotional dependency created by the therapeutic process, acts that might otherwise carry no legal liability may be considered an intentional infliction of emotional distress. For example, a MFT or LCSW involved in a sexual relationship with a person who is not his patient may find, when he terminates the relationship, that his former partner becomes depressed, angry, emotionally unstable, and even suicidal. In a nonprofessional context, such results are unfortunate (perhaps even tragic), but rarely involve any sort of legal liability for the person who terminates the relationship. However, suppose that the therapist embarks upon a sexual relationship with one of his own patients – knowing that the person is vulnerable, emotionally fragile, and likely to become depressed or unstable upon termination of the relationship – and yet terminates it anyway, he may be found to have committed intentional infliction of emotional distress.

Certainly, such a claim is much more likely to succeed today – for example, in cases such as Zipkin, where a therapist purposely convinces a patient to subjugate herself to him in especially humiliating ways (e.g., such as inducing her to buy him a farm and then forcing her to work it as a laborer). In a 1996 case from Pennsylvania, Corbett v. Morgenstern , a federal court upheld a patient's claim for intentional infliction of emotional distress where it was based on allegations of a therapist/patient sexual relationship during after termination of treatment.

Therapists should also be aware of another aspect of another aspect of Corbett: The court also upheld the patient's right to sue for punitive damages, based upon the claim of intentional infliction of emotional distress. Punitive damages are financial damages that are awarded to a plaintiff in a lawsuit beyond the damages awarded to compensate her for the harm that occurred. Punitive damages are designed as a deterrent, to prevent the defendant and others from engaging in such harmful contact in the future. To accomplish this deterrent effect, punitive awards are often much higher than compensatory damages.

Finally, "fraudulent misrepresentation": Such a claim must meet five conditions.

1. First, the defendant must have made a "false representation";

2. Second, the defendant must have known it was false at the time she made it;

3. Third, she must have made the false representation "for the purpose of defrauding the [patient]";

4. Fourth, the patient must have had a right to rely on the false representation, must have actually relied on it, and must have engaged in a course of action that he would not otherwise have taken had he not relied on the false representation; and

5. Fifth, the fraudulent misrepresentation must have harmed the patient.

Within the context of the therapeutic relationship, fraudulent misrepresentation provides a likely cause of action for sexual misconduct, particularly where the therapist tells the patient that the sexual contact is a part of the therapy process.

Breach of Implied Contract/Breach of Implied Warranty

Breach of contract claims are precisely what they sound like: claims that one party has not lived up to his or her end of a contract. California MFTs and LCSWs must be aware that a contract may exist even if there is no agreement that is labeled a "contract." Indeed, there need not even be a formal agreement, either written or verbal. In some contexts, courts may deem interactions between parties to be governed by an "implied" contract, particularly where one party has a fiduciary duty to the other.

Because therapists have a fiduciary duty to patients, even if no written agreement exists, courts are likely to find that an implied contractual arrangement does exist. A claim for breach of implied contract may arise a number of ways – for example, in the context of the fee-for-service arrangement. Despite the fact that the patient has paid all fees as agreed, he has not received the treatment promised.

Many jurisdictions now also codify "patients' rights," in codes of ethics, statutes, or both. Usually, such rights include the right to be treated without sexual contact or pressure to engage in such contact. Many individual practitioners also adopt a "patients' bill of rights," which is prominently displayed in their offices and printed on intake forms or other documentation. As a result, even where there is no explicit contract covering potential therapist/patient sexual contact, the existence of either mandatory or voluntary "patients' rights" codes may create an implied contract not to engage in such misconduct.

Moreover, as with intentional torts and negligence, the unique characteristics of the therapeutic relationship may also support a cause of action for breach of implied contract. Therapists are trained to treat patients who are emotionally vulnerable and psychologically dependent; that training includes handling boundary issues that arise out of the transference and countertransference processes. Therapists thus may reasonably be expected to be aware of both the possibility that such issues may arise and the harm that mishandling them may cause to the patient. And because this imbalance in power is so great, and the potential for harm so substantial, even in the absence of a "patients' bill of rights," courts may conclude that an implied contract exists.

Jorgenson and Sutherland report that a breach of contract claim succeeded in a therapist sexual misconduct case as early as 1972. In Anclote Manor Foundation v. Wilkinson , a widower sued his late wife's therapist (and employer) for breach of contract. During the course of treatment, the therapist had engaged in a sexual relationship with the patient; she subsequently committed suicide. The court ruled in favor of the patient's husband, although it awarded him only the amount of the therapy fees and hospital bills.

Breach of warranty involves the failure to provide a product or service of the quality or for the use promised. In the therapist/patient context, such claims may arise where the treatment process does not produce the results for which the patient visited the therapist in the first place. While most therapists are unlikely to provide explicit warranties that their services will achieve particular results, the very fact that they are engaged in practice may "imply" a warranty that those services will at least help, rather than harm, their patients.

For example, a patient who goes to a therapist seeking help for depression quite reasonably expects that the course of treatment the therapist prescribes will, if followed, reduce or eliminate the depression. By taking on the patient, the therapist may effectively "warrant" (or guarantee) that her services, if the patient complies with the course of treatment, will obtain the desired result. However, if the therapist's course of "treatment" includes sexual contact, the sexual relationship may lead the patient to become more rather than less depressed. A court may conclude that, by engaging in conduct she knows has the potential to cause harm, the therapist has breached an implied warranty to provide helpful, not harmful, treatment.

Jorgenson and Sutherland report that, in cases of therapist sexual misconduct, breach of implied warranty claims have so far been less likely to succeed. They cite a 1985 Texas case, Dennis v. Allison , as an example of courts' refusal to recognize such claims. In Dennis, however, the court apparently did not reject the patient's breach of implied warranty claim on its merits. Rather, it held that because other remedies were available to the patient in her suit for therapist sexual misconduct, it did not need to consider breach of implied warranty.

Spousal Claims

Spousal claims – and other third-party claims, such as those by parents – may encompass a variety of causes of action. Examples include breach of contract (as in Anclote Manor , discussed above), negligent infliction of emotional distress (as in Marlene F. , above), loss of consortium (in the case of a spouse), and wrongful death (e.g., in the case of a patient suicide).

A spouse may be able to sue for breach of contract if, as in Anclote Manor , the spouse has paid the therapy fees and attendant expenses. The same may be true in the case of a parent who pays for therapy for a minor child. Depending upon the circumstances, either a spouse or a parent may be able to sue for negligent infliction of emotional distress. In Marlene F. , a parent's right to sue was upheld because it was reasonably foreseeable that a parent would suffer emotional distress upon hearing that her child's therapist had allegedly molested his minor patients.

In Richard H. , a patient was permitted to sue for emotional distress, which the court found "readily foreseeable," because his therapist had engaged in a sexual relationship with the patient's wife. It is likely that a court would likewise find it "readily foreseeable" that a patient's spouse would suffer emotional distress to learn that the therapist engaged in sexual contact with the patient. Likewise, in Mazza v. Huffaker , a 1983 North Carolina case, a therapist was found negligent for engaging in sexual contact with his patient's spouse. As in Richard H., Mr. Mazza had confided to Dr. Huffaker that he was having difficulties in his marriage. He subsequently discovered his wife and Huffaker in bed together.

Jorgenson and Sutherland also cite a 1991 case from Maryland, Figueiredo-Torres v. Nickel , in which a therapist was treating both husband and wife. During the course of treatment, he not only engaged in sexual contact with the wife, but also told the husband that "he should stay away from his wife because he had bad breath, [that he] was a '"codfish" and that his wife deserved a fillet [sic].'"

With regard specifically to spousal claims, some courts will also permit claims for loss of consortium (loss of the spouse's companionship and/or sexual relations), and, in a few jurisdictions, alienation of affection. A cause of action for alienation of affection, traditionally brought against the third party with whom a spouse engaged in an adulterous relationship, no longer exists in many states. However, Jorgenson and Sutherland report that Utah, for example, still recognizes such claims: In 1991, after a therapist embarked upon a sexual relationship with a patient and she subsequently left her husband and children, a Utah court upheld the husband's right to sue the therapist for alienation of affection. However, Jorgenson and Sutherland also note that some courts will not permit a patient's spouse to sue for negligence. For example, in another Maryland case, Homer v. Long , the court refused to recognize a spouse's claim on grounds that "the therapist owe[s] no duty to the spouse 'even if, as here, the spouse is the one who initially employed the therapist and is paying the therapist's fees.'"

In medical malpractice cases, wrongful death claims by survivors have long been accepted by the courts when a patient dies. For purposes of wrongful death, a "survivor" who has standing to bring such a claim may include a spouse, a child's parent or guardian, or a patient's own children. Definitions of who qualifies as a survivor vary by state.

Employer Liability

When a therapist is employed by, or affiliated with, a hospital, clinic, group practice, or other organization, that organization may also be liable for the therapist's sexual misconduct. Exceptions sometimes exist for public entities, such as government-run hospitals, or charitable institutions: In such cases, the employers may be entitled to "immunity" from liability. However, even under such circumstances, employers may be entitled only to "qualified immunity": Depending upon the specific circumstances of the individual case, the plaintiff may be able to prove that because of the employer's actions or involvement, it is not entitled to immunity from liability.

With regard to sexual misconduct cases, the extent to which jurisdictions are willing to grant either full or qualified immunity to employers varies widely. The key is usually "agency" – i.e., the extent to which the therapist acts as an "agent" of the employer when he or she engages in the misconduct. Determining whether the therapist acted as an agent of the employer often turns on whether the misconduct occurred "within the scope of employment."

Some states use what is known as the "motivation to serve" test. In such jurisdictions, courts will find an employer liable only if the therapist's misconduct was "motivated at least in part by a desire" to further the employer's interests. In a 1984 case, Andrew v. United States , a court found an employer not liable when a physician's assistant engaged in sexual contact with a patient, on grounds that the sexual contact did not further the employer's interests.

However, Jorgenson and Sutherland report that most states have adopted some version of a general agency theory (sometimes described in terms of "master" and "servant"). Under this theory:

Conduct of a servant is within the scope of employment if, but only if:

1. it is of the kind he is authorized to perform;

2. it occurs substantially within the authorized time and space limits;

3. it is actuated, at least in part, by a purpose to serve the master; and

4. if force is intentionally used by the servant against another, the use of force is not unexpected by the master.

Under this theory, however, "[c]onduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master."

Some jurisdictions use what legal experts call a "'but-for' test": in other words, evidence that "but for" the fact that the employer employed the therapist, the misconduct would not have occurred. A Minnesota court used such a test in 1982 in Marston v. Minneapolis Clinic of Psychiatry . In Marston, "[t]he court found that the jury could weigh the facts and determine that the sexual conduct would not have occurred but for the psychologist's employment with the clinic."

Other states use variations of the "motivation to serve" test to interpret and apply general agency theory. For example, in 1990, an Alaska court found that a therapist's sexual contact with a patient occurred within the scope of employment: The plaintiff met the "motivation to serve" test because the contact arose out of the employee's work and was "reasonably incidental to the employee's legitimate work activities." According to the court, "because an employee is never authorized to commit a tort, [agency theory] must mean 'only that the act which leads to the tortious behavior cannot be different in kind from acts the employee is authorized to perform in furtherance of the employer's enterprise.'"

Under certain circumstances, the law also recognizes what is known as a "duty of extraordinary care" to certain types of persons. For example, "common carriers" (e.g., bus lines, railroads, airlines, etc.) have a heightened (or "extraordinary") duty of care to passengers, because of the "passengers' surrender of their ability to protect themselves from harm" while using the carrier. Jorgenson and Sutherland note that, "[m]ore recently, courts have extended this duty of extraordinary care to innkeepers, hospitals and other entities who invite the public to become, in effect, guests in their facilities."

Courts have applied the "common carrier" theory of liability to medical and residential facilities in cases of employee sexual assault. In a 1989 Indiana case, Stropes v. Heritage House Childrens Center Of Shelbyville, Inc. , the court found a residential care facility liable for a mentally retarded resident's sexual assault by a nurse's aide:

When Heritage accepted [the plaintiff] as a resident of its facility, it was fully cognizant of the disabilities and infirmities he suffered which rendered him unable to care for himself and which, in fact, undoubtedly formed the basis of their relationship. Their "contract of passage" [i.e., which created "common carrier" liability] contemplated that the entire responsibility of [the plaintiff's] comfort, safety and maintenance would be on Heritage . . . .

Two elements were key in Stropes: 1) the plaintiff's particular vulnerabilities (i.e., as a mentally retarded individual); and 2) the fact that the plaintiff used the services of the residential facility specifically for the purpose of keeping him safe and secure in light of those vulnerabilities. This analysis has significant implications for MFTs and LCSWs and their employers in cases of sexual misconduct, since patients who retain a therapist's services are likely to be emotionally and psychologically vulnerable, and since they retain those services specifically to help them overcome those vulnerabilities.

In certain circumstances, an employer may also be "directly liable" when an employee engages in sexual contact with a patient or client. Direct liability generally applies in cases where the employer's recruitment, training, supervision, or retention of the employee in question is at issue. For example, a hospital, clinic, treatment facility, or other similar institution has a specific duty to ensure that it does not hire employees who pose a demonstrable risk to patients. In other words, such institutions must be diligent in reviewing potential employees' backgrounds, so that they do not hire employees with criminal records, demonstrated psychological problems, or a history of misconduct.

If an employer fails to screen potential employees' backgrounds and subsequently hires a therapist with a history of sexual assault, the employer is much more likely to be held directly liable for "negligent hiring" if that therapist subsequently engages in sexual contact with a patient. Likewise, if an employer learns that a therapist has engaged in sexual misconduct and fails to take appropriate measures to prevent such misconduct in the future, the employer may be directly liable for "negligent supervision" and/or "negligent retention."

In a 1986 case, Andrews v. United States , the Fourth Circuit Court of Appeals found the federal government liable in a suit filed by a patient and her husband. In Andrews, the court found that the supervising physician was negligent in "fail[ing] to terminate the relationship between the physician's assistant and the patient after receiving information as to the assistant's sexual impropriety with the patient at an early stage."

In a 1985 case, Thelen V. St. Cloud Hospital , a Minnesota court found the hospital directly liable for negligence because it "fail[ed] to report an employee's sexual abuse of a patient." Similarly, in Copithorne v. Framingham Union Hospital , a 1988 Massachusetts decision, the court found the hospital liable for a staff doctor's rape of a patient. The court held that the hospital was negligent in allowing the doctor to retain staff privileges when "it knew or should have known that the physician 'posed a risk of harm to women' based upon prior conduct."

Rehabilitation

Experts vary with regard to the possibility of rehabilitation for therapist who engage in sexual misconduct. Schoener (1997) appears to believe that some offenders can be rehabilitated; Pope, on the other hand, appears to believe that rehabilitation is unlikely, at least in the vast majority of cases.

Schoener argues that "faulty assumptions" underlie the notion that therapists who engage in sexual misconduct cannot be rehabilitated. (Schoener, 1998) Among these, he lists the following:

that "sexual misconduct is more harmful than other misconduct";

that most therapists who engage in sexual misconduct are "sexual predators" or "compulsive sex offenders";

that any "clear and generally accepted definition of sexual misconduct" exists and that such a definition will clearly distinguish between those therapists who can be rehabilitated and those who cannot;

that rehabilitation is impossible unless there is "a clear-cut therapeutic prescription" for handling sexual misconduct; and

that a therapist who has engaged in sexual misconduct, once rehabilitated, must disclose those offenses to every potential patient or client. (ibid)

Schoener concedes that "public safety" must play a role in decisions that concern "client welfare." (ibid) He also admits that "[t]here are professionals who should not be practicing . . . and who are not candidates for rehabilitation with current methods. As a matter of public safety, they should be removed from the field." However, he insists that, at least with some offenders, professional discipline can lead to "successful rehabilitation." (ibid)

Alternatively, Pope seems to view the concept of rehabilitation with general skepticism, pointing to underlying pathologies, high recidivism rates, and the lack of success of education and therapy in preventing therapist sexual misconduct. (Pope, 1989b) He refers to a high-profile case reported by Bates and Brodsky:

One psychologist gained publicity by reporting a "nationwide survey" based on the conceptualization that sexually abusive therapists were in fact "impaired professionals"; the survey findings, which received newspaper coverage, supported efforts to "rehabilitate" these professionals. The psychologist also made a presentation on the subject of rehabilitating perpetrators at an annual meeting of the APA. The general public and the professional community, however, were probably not aware that this psychologist had been engaging in therapist-patient sexual intimacies and, several years after the APA presentation, pleaded guilty to a sex abuse charge. (ibid)

Not only have research on outcomes of treatment for therapists who sexually offend not been encouraging, but, as in the example above, therapists who sexually offend have been shown to keep their sexual activities with clients secret and free of complaints for extended periods of time. The board does not consider rehabilitation as an alternative to license revocation in cases of therapist-patient contact.

Age and Gender Disparities: As noted above, the Pope/Vetter study raises troubling questions about the extent to which therapists who engage in sexual misconduct target vulnerable patients. Of the 958 patients surveyed, about 5% "were minors at the time of the sexual involvement with the therapists." Prior to becoming sexually involved with a therapist, about 10% of the patients surveyed had been raped; roughly one-third of respondents had been victims of "incest or other child sex abuse."

Moreover, the study's use of the term "minor" to describe underage victims of therapist sexual misconduct is inapt. The word "minor" may imply an older adolescent, but research indicates that, particularly with regard to female child victims, most are much younger:
One national study of therapist-client sex involving minors found that the majority were female. The average age of a minor female client who had been sexually involved with a therapist was 7. They ranged in age from 3 years old to 17. The average age of a minor male client who had been sexually involved with a therapist was 12. The boys in this study ranged in age from 7 to 16.
The Pope/Vetter study described as "exceptional" its findings on gender differences. They reported:

Data from each research approach suggest that offending therapists are overwhelmingly (though not exclusively) male while exploited clients are overwhelmingly (though not exclusively) female. Each method of study has strengths and weaknesses, but in each, the number of male offenders exceeds the number of female offenders and the number of female victims exceeds the number of male victims, even after the over-all proportions of male and female therapists and of male and female clients have been taken into account. The extreme gender differences led UCLA professor Jean Holroyd, principal investigator of the first national study of therapist-patient sex, to write that 'sexual contact between therapist and patient is perhaps the quintessence of sex-biased therapeutic practice': female clients do not have equal access to non-abusive therapy. The following section reviews peer-reviewed findings representing 4 of the major methods of study.

Psychiatrists Melanie Carr and Gail Robinson wrote: "[W]omen are often programmed to take responsibility for and feel guilty about relationships and their problems. The almost universal expression of guilt and shame expressed by women who have been sexually involved with their therapists is a testament to the power of this conditioning."

Psychiatrist Virginia Davidson, analyzing the similarities between therapist-patient sex and rape, wrote:

"Women victims in both instances experience considerable guilt, risk loss of love and self-esteem, and often feel that they may have done something to "cause" the seduction. As with rape victims, women patients can expect to be blamed for the event and will have difficulty finding a sympathetic audience for their complaint. Added to these difficulties is the reality that each woman has consulted a therapist, thereby giving some evidence of psychological disequilibrium prior to the seduction. How the therapist may use this information after the woman decides to discuss the situation with someone else can surely dissuade many women from revealing these experiences.

Ultimately, however, therapists must understand that sexual contact with patients is harmful, whatever the patient's age or gender. As Pope notes: "Adults and children who are hurting, confused, vulnerable, sometimes desperate, who come for help and place their trusts in therapists deserve more than to be used to gratify therapists' sexual impulses."

Conclusion

Over the history of counseling knowledge, sophistication and tools have converged for effective, humane, clinical practice and for providing services to a diverse population. Know the principles upon which the specific ethical guidelines and laws are based, and you will work with more relevance and confidence. Remember the resources available for resolving ethical and legal concerns for a less stressful and better-supported practice. You are part of a profession filled with great minds discovering new answers.

Pope has perhaps summarized it best:

The therapeutic relationship is a special one, characterized by exceptional vulnerability and trust. People may talk to their therapists about thoughts, feelings, events, and behaviors that they would never disclose to anyone else. Every state in the United States has recognized the special nature of the therapeutic relationship and the special responsibilities that therapists have in relation to their clients by requiring special training and licensure for therapists, and by recognizing a therapist-patient privilege which safeguards the privacy of what patients talk about to their therapist.

It is this vulnerability that makes therapist/patient sexual contact so uniquely harmful. Therapists ostensibly choose therapy as a profession for the purpose of helping people deal successfully with mental, psychological, and emotional difficulties; they thus have a special obligation not to engage in conduct that seems virtually guaranteed to increase those difficulties.

Moreover, simply from the standpoint of the therapist's own self-interest, avoiding therapist/patient sexual contact is the only reasonable course of action. Doing so avoids the possibility of numerous adverse consequences: professional sanctions, up to and including license revocation; civil litigation, including malpractice awards that can run to millions of dollars; and criminal penalties, which may include expensive fines, felony convictions, and even imprisonment.

A therapist who finds him- or herself in a situation that appears to have the potential to lead to therapist/patient sexual contact should take affirmative steps to prevent it, including additional education and training, consultation with other professionals, and even transfer of the patient to another therapist, if necessary. Taking such steps avoids potential harm to therapist and patient alike.

Additional Guidelines

Client Recruitment and Referral

Those LCSW's who do advertise their services presumably do so to recruit clients. Client recruitment also occurs through non-standard methods, such as referrals. Professionals in some fields are permitted to use the referral process with few limits. However, LCSW's must be aware of the significant restrictions that § 681.41(h) imposes on referral processes for counselors.

This subsection provides:

A licensee shall not intentionally or knowingly offer to pay or agree to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, corporation, or entity for securing or soliciting clients or patronage for or from any health care professional.

LCSW's are forbidden to provide or accept any form of compensation for referrals to or from another individual or entity, or on behalf of another individual or entity. Under § 781.410 (a), “A licensee shall not intentionally or knowingly offer to pay or agree to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, corporation, or entity for securing or soliciting clients or patronage for or from any health care professional.” Under subsection (b), “In accordance with the provisions of the Act, §505.451, a licensee is subject to disciplinary action if the licensee directly or indirectly offers to pay or agrees to accept remuneration to or from any person for securing or soliciting a client or patronage."

First, even if an LCSW does not intend to exchange some form of compensation ("remuneration") for a referral, but knows that giving or receiving compensation will occur, she will likely be found to have violated this subsection. Second, this subsection applies regardless of whether the LCSW is making or receiving the referral: Se may not accept compensation for referring a client to another provider, nor may she compensate another provider for referring a client to her.

Third, this subsection prohibits any form of compensation made via any method; it need not be an explicit financial reward for making a referral. These restrictions apply regardless of whether the compensation takes the form of direct cash payment or is compensation "in kind" (i.e., providing a non-cash payment or reward). "In-kind" compensation may include virtually anything: free products or services; payment of tuition or professional fees; meals or tickets to entertainment or recreational events; or any number of other benefits, both tangible and intangible. The restrictions also apply regardless of how the payment is made: Examples may include (but are not limited to) sending a check, "bundling" payment into a payment for other services, providing cash "off the books," or providing special services for equivalent value (e.g., providing free advertising in an amount equal to the cost of the referral).

Fourth, the subsection prohibits compensation for referrals "to or from any person, firm, association of persons, partnership, corporation, or entity." This language makes these restrictions applicable to virtually any individual or entity, including other LCSW's, hospitals, clinics, educational, religious, or charitable institutions, and most other sources. One exception applies under subpart (c)

A licensee employed or under contract with a chemical dependency facility or a mental health facility, shall comply with the requirements in the Texas Health and Safety Code §164.006, relating to soliciting and contracting with certain referral sources. Compliance with the Treatment Facilities Marketing Practices Act, Texas Health and Safety Code Chapter 164, shall not be considered as a violation of state law relating to illegal remuneration.

Fees and Payment

A thorough understanding of the LCSW's fees and payment structure is necessary to the client's informed consent. Clients seeking counseling are likely to be under significant pressures; in some instances, financial pressures may play a role. As noted above, some clients may be uninsured or underinsured and unable to afford private therapy fees. Some LCSW's, or their affiliating organizations, may not accept particular insurance plans. Clients thus need to be fully apprised of the costs of the therapeutic process in order to make an informed decision as to whether such counseling is affordable (or, for some, even possible). Under § 781.403 (9), a social worker engaging in bartering, “…has the responsibility to assure that the market value of the barter does not exceed the customary charge for the service.”

As noted in the previous subsection, § 781.403 (8) requires that an LCSW notify clients in writing of any changes, including changes in fees or payment arrangements. However, the LCSW must notify clients of such a change in writing, and must do so before the change takes effect. Under § 781.404 (g), an LCSW is permitted to, “…bill clients or third parties for only those services actually rendered or as agreed to by mutual written understanding.” Thus, LCSW's must notify clients in writing of any changes in fees, billing, or payment before those changes take effect.

Moreover, advising the client in writing at the outset of the therapeutic relationship helps an LCSW to avoid misunderstandings and conflicts later. Written explanations of fees, costs, and payment expectations helps clients understand their own responsibilities in the patient/therapist relationship. In the event of a client's subsequent failure or refusal to pay, it also provides evidence that the client received notice of fees and costs.

360 Degree Quality

360 degree quality management is a business term that refers to having a well-rounded approach to quality. It involves taking stock and intervening anywhere in the spectrum of services and products that may adversely affect the customer experience of quality. Importing this concept to the provision of treatment means reviewing infrastructure and policies necessary to ensure safety, consistent care, confidentiality, outcomes and all other aspects of quality care.

Examples of specific elements include having coverage while away in case of a patient emergency, secure and confidential records management, orientation and contracts with staff and contractors and services, and consistent provision of informed consent at the outset of treatment. A professional will, that is, having a will that specifies how your clinical and administrative records will be handled in the event of your death or infirmity, is an important example. It is specifically considered to be an important ethical requirement.

Thinking of treatment as a complete cycle, with a beginning, middle and end, can help the social worker enhance quality. Initiation and termination of treatment are each very important subjects that command considerable attention from ethical, legal, and clinical perspectives. Termination, for example, brings up issues such as avoiding patient abandonment (such as through transfer of care), terminating when treatment is no longer cost effective for the client (as opposed to the social worker), appropriate follow up, making sure the patient feels comfortable about resuming treatment if needed, and collaboration with the client to ensure a clinically appropriate termination process.

Assessment

One of the most important criticisms leveled at the mental health field is the inadequacy of assessment, and the resulting errors in diagnosis. Research has shown a tendency for social workers to have pet diagnoses and to do overly brief assessments that rely too much on initial comments by the client. (Spiegel, 2004) Reliability of diagnoses based on DSM criteria are poor, particularly given the authority the manual embodies. (ibid) In many cases, problems such as sleep disorders, dissociative identity disorder, drug and alcohol abuse, domestic violence, cognitive impairment, and personality disorders go unacknowledged and untreated, ultimately sabotaging the treatment.

Treatment Plans and Collaborating with Clients

Identifying Blocks to Treatment

Highly naïve, defensive, and cognitively impaired clients, especially those with problems that impair thinking and judgment, such as substance abuse, antisocial personality disorder, and psychosis, may be very difficult to collaborate with. There are many reasons such clients may be unable to see the wisdom of the treatment plan the social worker is inclined to propose. One of the highest arts of psychotherapy is that of rapport-building with these defensive, resistant clients. Some trainers say that there is no such thing as a resistant client, only a failure to gain rapport. This is an extreme position taken in order to make a point. Clients should not be written off as resistant, at least not after creative work to gain collaboration. After all, clients come to psychotherapy because they are experiencing mental or emotional distress. The greatest source of such distress is that of mental disorders. A knee-jerk response to a resistant client is akin to saying that such persons should seek mental health treatment from a skilled social worker. The obvious conclusion is that the social worker seeing the resistant client needs more training, specifically on managing defenses and difficult-to-treat problems.

There are two primary blocks to gaining agreement on the treatment plan. One is that the client has an agenda that is antithetical to their well being. Substance abuse is an obvious example. This “agenda” may be conscious or unconscious, but can be very powerful. Many substance abusers do not hit bottom, but die instead. The other block is high sensitivity to any specific demands that tend to occur in psychotherapy. These demands can include work to increase inner awareness, work to take on new demands such as being more assertive, and even tasks as seemingly innocuous as relaxing or imagining a positive outcome in a job interview. Generally, these high sensitivities occur in people with high levels of dissociation and significant trauma histories. Often this is coupled with difficulty maintaining emotional stability or engaging in normal self-soothing behaviors. Borderline Personality Disorder involves a challenging mix of these problems.

One of the most important areas in which a social worker can grow, is in developing skill in working with challenging clients in a way that does not alienate or destabilize them. Taking this on as a professional challenge is very commendable. Some social workers unwittingly write off such clients or take their behavior personally, responding in a moralistic, but futile manner.

Whither Morality?

As scientific study of mental health yields new information, it challenges moral positions that are so much a part of our culture that people defend and act them out unconsciously, but often with very firmly held rationales that do not fully address the sources of their biases. Polls have shown that much of the American public believe that persons who exhibit mental illnesses could behave normally if they wanted to. The high number of persons with mental illnesses in jails is testimony to the bias toward personal responsibility that overrides current medical knowledge about the nature of those mental illnesses, and worse, the ability of the medical and psychotherapy fields to treat and manage those illnesses in less restrictive and non-punitive environments. If jail is hellish for a person without a mental illness, that hell must be multiplied many times over for a person with a mental illness. Such people are not merely sensitive to their environment and more inclined to regress or decompensate, but are also much more vulnerable to abuse by other inmates.

Attributions of blame come from pervasive beliefs of the culture in which they occur. Belief in demonic possession led to thousands of deaths of persons believed to be possessed or practicing witchcraft. Bizarre tests for these conditions had no basis in reality.

As demonic metaphysics yielded to a more scientific perspective, the bulk of society has managed to hold onto a more subtle metaphysics of personal responsibility. Often this perspective is revealed by a simple act of complacence; the statement that a person is, “just that way.” This implies that there is no explanation other than free will. This, in turn, implies that there can be no alternative but making life miserable enough that the person will stop the behavior. In other words, when suffering, the person is getting what he or she deserves.

This simplistic view fails to account for the dramatic improvements in behavior and stability that occur when appropriate treatment is provided. It cannot square itself with the increased attention, responsibility and academic performance of a child with attention deficit disorder who receives appropriate medication, nor the veteran with post traumatic stress disorder who becomes interested in seeking employment after successful psychotherapy. There was no punishment involved in such dramatic turnarounds.

Where there is an impulse on the part of the social worker to punish, write off, or blame the client, the social worker should carefully inspect the source of such impulses, and make sure that he or she truly is up-to-date on the evidence-based approaches to the problem at hand. Morality in a clinical setting should be an expression of values that contribute to the welfare of clients, not the poorly inspected acting out of cultural patterns that are based on harmful beliefs such as demonic possession, the absence of a medical basis for mental disorders, and the social worker as an authority empowered with the responsibility to dispense punishment for what he or she had judged to be bad behavior.

The most essential red flag for the social worker is a sense of impulse that is not well inspected for groundedness in clinical knowledge that can be defended in terms of the treatment plan and evidence-based practice. Perhaps the key to today's morality is in being highly accountable for getting outcomes that express our highest values.

Continuing Education, Up-To-Date Knowledge

There is a strong trend in our culture to be content with beliefs that support our biases and satisfy our desire to have socially desirable opinions, or at least opinions that are desirable within our professional community. The satirist Stephen Colbert refers to this as “truthiness.” This is identical to the concept from George Orwell's dystopian and socially critical novel, 1984, of “bellyfeel.”

What matters, though, is what matters. That is to say, that outcomes are our business. The more research is available, and the more sophisticated the research becomes, the more we are challenged to adapt our opinions and practices to new, useful knowledge. It is very important that social workers not only engage in continuing education, but that they select educational material and journal articles that are recent and help the social worker understand current research.

An excellent example of an important trend in research is the influence of genetics on our understanding of psychology. Genetics is upending some of our beliefs about the causes of developmental, behavioral and family problems. Research is showing us that there is a widespread influence of genetic factors on risk to psychopathology. (Eaves, et. al., 1997)

For example, consider the widely held belief that corporal punishment causes children to become violent. Genetic research suggests that children are not made more violent by corporal punishment. Instead, it appears that the more violent or conduct disordered children are more likely to receive corporal punishment, and are more likely to have parents who are prone to administering corporal punishment. (Moffitt, 2005; Scourfield, Van den Bree, Martin, & McGuffin, 2004)

One study was this straightforward: “There is a cross-situational conduct problems' phenotype, underlying the behavior measured by all informants, that is wholly genetic in origin. No significant influence of shared environmental effects was found.” (Ibid)

For many cases, this knowledge will shift the focus to interventions that assist multiple family members in reducing incidences of violence, crime, and harmful involvement with authorities, from the prior focus on preventing corporal punishment as an isolated problem and cause of violence in minors and adults. Genetic research is likely to expand the emphasis on systems interventions, which are emphasized in the training of social workers and family social workers. This kind of systems thinking is likely to expand attention beyond the victim-perpetrator dyad to include a broader assessment of needs and potential interventions.

The cornerstone of continuing education is asking what makes a difference in people's lives.

Managed Care

Adapting to managed care has posed ethical challenges to psychotherapists. Psychotherapists have been tempted to use an inaccurate diagnosis in order to get the client's insurance to cover treatment, psychotherapists have been troubled by managed care companies refusing to cover legitimate and necessary treatment, and psychotherapists have been pushed to provide treatment that is too short where shorter treatment is rewarded with more referrals regardless of the client diagnosis.

Managed care companies conduct utilization review in which statistics pertaining to each psychotherapist result in designation of certain psychotherapists as preferred providers for their referrals. A psychotherapist was told by a managed care executive that she should consider reducing the ratio of highly traumatized clients she saw, even though this was her specialty, in order to change her utilization numbers and receive more referrals. (Yourell, 2007) Obviously, this recommendation would result in more referrals of these challenging cases to less specialized and qualified providers, and presumably result in poorer outcomes and higher drop-out rates.

The economic concept of “perverse incentives” refers to people and systems reacting to incentives in a manner that is not good for their customers or for society, especially where there is a duty to society, such as to prevent pollution or improve clinical services. It is a ponderous issue in managed care. Peer support can be especially valuable in navigating managed care issues.

Telemedicine and Online Treatment

Mental health clinicians have found a number of ways to use electronic communication in conducting and augmenting therapy. This may include email, instant messaging, and videoconferencing. This is referred to as telemedicine. Telepractice carries the same standards of care as other clinical work. This includes fully carrying out informed consent responsibilities.

Telemedicine is becoming increasingly commonplace, and is used to increase the services available to rural areas, and to provide specialists to areas where such specialists are not readily available. It is also used to reduce costs by reducing travel, and to increase appropriate utilization by individuals who have difficulty travelling to the physician's office. All of these benefits can apply to psychotherapy so long as certain standards are applied. There is a growing body of research supporting the use of telemedicine and telephone contact in psychotherapy. (Lovell, Cox, Haddock, Jones, Raines, Garvey, et al., 2006; Sulzbacher, Vallin, & Waetzig, 2006; Carlbring, Gunnarsdóttir, Hedensjö, Andersson, Ekselius, Furmark, 2007; Shepherd, Goldstein, Whitford, Thewes, Brummell, & Hicks, 2006)

Social workers are cautioned to carefully consider the risks inherent in telemedicine. It is important to have policies and procedures in place for responding to interruptions in service, for evaluating whether a patient is appropriate for telemedicine, and for coping with the limitations inherent in the medium being used. The mood and intent of a communication can be misperceived more easily when it is not in face-to-face communication. The provider must be competent in the use of the technology required for the services he or she intends to provide.

The confidentiality of patient information is at increased risk through telemedicine. The social worker should be fully competent in protecting privacy when using the desired technology.

Telemedicine makes it feasible to work with patients who do not reside in the same state as the social worker. The state in which the patient resides may have laws regulating such practice, and it may be considered an unlicensed practice of psychotherapy and, as such, illegal.

In 1996 California passed legislation regulating the practice of telemedicine. The Business and Professions Code defines telemedicine as:

For the purposes of this section, "telemedicine" means the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video, or data communications. Neither a telephone conversation nor an electronic mail message between a health care practitioner and patient constitutes "telemedicine" for purposes of this section. (Bus. & Prof. Code Section 2290.5 subs. (a)(1))

The Business and Professions Code states:

…prior to the delivery of health care via telemedicine, the health care practitioner who has ultimate authority over the care or primary diagnosis of the patient shall obtain verbal and written informed consent from the patient or the patient's legal representative. (Bus. & Prof. Code § 2290.5 subs. (c))

Predicting Violence and Suicide

Mental health professionals are notoriously poor at predicting violence, especially in the absence of a history of violence, and they consistently overpredict violence. (Underwager, & Wakefield, 2007; Litwack, Schlesinger, 1987, pp.205-257; Monahan, 1983, pp.147-176; Melton, Petrila, Poythress, & Slobogin, 1987; Wyda, Black, 1989)

Our difficulty in predicting violence is a key reason for the stringent laws set up to protect people from being held in mental hospitals based on overzealous assessments. The other side of the coin, of course, is that untreated individuals may be violent as a result of these same stringent laws. Their social worker must be well-versed in managing potential violence and suicide, as well as understand the benefits to society of the protections against confinement as well as the legal basis for confinement.

Conclusion

Over the history of psychotherapy knowledge, sophistication and tools have converged for effective, humane, clinical practice and for providing services to a diverse population. Know the principles upon which the specific ethical guidelines and laws are based, and you will work with more relevance and confidence. Remember the resources available for resolving ethical and legal concerns for a less stressful and better supported practice. You are part of a profession filled with great minds discovering new answers.

MAKE SURE YOU READ THE FOLLOWING APPENDICES:

Appendix A: Professional Licensing and Certification Unit: Types of Disciplinary Actions

Revocation - The license, certificate, registration, permit, or document has been taken away from the person. The person may no longer practice in the field or engage in the regulated activity.

Denial - The person applied for a license, certificate, registration, permit, or document (or applied for renewal of a license, certificate, registration, permit, or document) and the application was denied. The person may not practice in the field or engage in the regulated activity.

Surrender - The person voluntarily surrendered the person's license, certificate, registration, permit, or document. The person may no longer practice in the field or engage in the regulated activity.

Suspension - The license, certificate, registration, permit, or document has been taken away from the person for a certain period of time, during which the person may no longer practice in the field or engage in the regulated activity. A suspension is similar to a revocation except that it is for a certain time period.

Probated suspension - The license, certificate, registration, permit, or document has been taken away from the person for a certain period of time, but the suspension has been probated. The person may continue to practice in the field or engage in the regulated activity as long as the person meets specific conditions described in an order agreed to by the person and the regulatory authority.

Reprimand - The regulatory authority mailed a formal letter of reprimand to the person. The person may continue to practice in the field or engage in the regulated activity.

Settlement agreement with stipulations - Instead of proceeding to a formal hearing on the specific allegations, the regulatory authority agreed to resolve the case against the person by mutual consent to certain conditions or requirements. The conditions may include supervised practice, restricted practice, additional continuing education, or other requirements. The person may continue to practice in the field or engage in the regulated activity.

Administrative penalty - A monetary fine assessed against the person. The person may continue to practice in the field or engage in the regulated activity.

Settlement agreement with administrative penalty - Instead of proceeding to a formal hearing on the specific allegations, the regulatory authority agreed to resolve the case against the person by mutual consent to certain conditions or requirements. The person must also pay a monetary fine. The conditions may include supervised practice, restricted practice, additional continuing education, or other requirements. The person may continue to practice in the field or engage in the regulated activity.

Probated suspension with administrative penalty - The license, certificate, registration, permit, or document has been taken away from the person for a certain period of time, but the suspension has been probated and a fine assessed. The person may continue to practice in the field or engage in the regulated activity as long as the person pays a monetary fine and meets specific conditions described in an order agreed to by the person and the regulatory authority.

Appendix B: California Codes on Unprofessional Conduct

CALIFORNIA CODES BUSINESS AND PROFESSIONS CODE SECTION 4982-4982.3

4982. The board may refuse to issue any registration or license, or may suspend or revoke the license or registration of any registrant or licensee if the applicant, licensee, or registrant has been guilty of unprofessional conduct. Unprofessional conduct shall include, but not be limited to:

(a) The conviction of a crime substantially related to the qualifications, functions, or duties of a licensee or registrant under this chapter. The record of conviction shall be conclusive evidence only of the fact that the conviction occurred. The board may inquire into the circumstances surrounding the commission of the crime in order to fix the degree of discipline or to determine if the conviction is substantially related to the qualifications, functions, or duties of a licensee or registrant under this chapter. A plea or verdict of guilty or a conviction following a plea of nolo contendere made to a charge substantially related to the qualifications, functions, or duties of a licensee or registrant under this chapter shall be deemed to be a conviction within the meaning of this section. The board may order any license or registration suspended or revoked, or may decline to issue a license or registration when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal, or, when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under Section 1203.4 of the Penal Code allowing the person to withdraw a plea of guilty and enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment.

(b) Securing a license or registration by fraud, deceit, or misrepresentation on any application for licensure or registration submitted to the board, whether engaged in by an applicant for a license or registration, or by a licensee in support of any application for licensure or registration.

(c) Administering to himself or herself any controlled substance or using of any of the dangerous drugs specified in Section 4022, or of any alcoholic beverage to the extent, or in a manner, as to be dangerous or injurious to the person applying for a registration or license or holding a registration or license under this chapter, or to any other person, or to the public, or, to the extent that the use impairs the ability of the person applying for or holding a registration or license to conduct with safety to the public the practice authorized by the registration or license, or the conviction of more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this subdivision, or any combination thereof. The board shall deny an application for a registration or license or revoke the license or registration of any person, other than one who is licensed as a physician and surgeon, who uses or offers to use drugs in the course of performing marriage and family therapy services.

(d) Gross negligence or incompetence in the performance of marriage and family therapy.

(e) Violating, attempting to violate, or conspiring to violate any of the provisions of this chapter or any regulation adopted by the board.

(f) Misrepresentation as to the type or status of a license or registration held by the person, or otherwise misrepresenting or permitting misrepresentation of his or her education, professional qualifications, or professional affiliations to any person or entity.

(g) Impersonation of another by any licensee, registrant, or applicant for a license or registration, or, in the case of a licensee, allowing any other person to use his or her license or registration.

(h) Aiding or abetting, or employing, directly or indirectly, any unlicensed or unregistered person to engage in conduct for which a license or registration is required under this chapter.

(i) Intentionally or recklessly causing physical or emotional harm to any client.

(j) The commission of any dishonest, corrupt, or fraudulent act substantially related to the qualifications, functions, or duties of a licensee or registrant.

(k) Engaging in sexual relations with a client, or a former client within two years following termination of therapy, soliciting sexual relations with a client, or committing an act of sexual abuse, or sexual misconduct with a client, or committing an act punishable as asexually related crime, if that act or solicitation is substantially related to the qualifications, functions, or duties of a marriage and family therapist.

(l) Performing, or holding oneself out as being able to perform, or offering to perform, or permitting any trainee or registered intern under supervision to perform, any professional services beyond the scope of the license authorized by this chapter.

(m) Failure to maintain confidentiality, except as otherwise required or permitted by law, of all information that has been received from a client in confidence during the course of treatment and all information about the client which is obtained from tests or other means.

(n) Prior to the commencement of treatment, failing to disclose to the client or prospective client the fee to be charged for the professional services, or the basis upon which that fee will be computed.

(o) Paying, accepting, or soliciting any consideration, compensation, or remuneration, whether monetary or otherwise, for the referral of professional clients. All consideration, compensation, or remuneration shall be in relation to professional counseling services actually provided by the licensee. Nothing in this subdivision shall prevent collaboration among two or more licensees in a case or cases. However, no fee shall be charged for that collaboration, except when disclosure of the fee has been made in compliance with subdivision (n).

(p) Advertising in a manner that is false, misleading, or deceptive.

(q) Reproduction or description in public, or in any publication subject to general public distribution, of any psychological test or other assessment device, the value of which depends in whole or in part on the naivete of the subject, in ways that might invalidate the test or device.

(r) Any conduct in the supervision of any registered intern or trainee by any licensee that violates this chapter or any rules or regulations adopted by the board.

(s) Performing or holding oneself out as being able to perform professional services beyond the scope of one's competence, as established by one's education, training, or experience. This subdivision shall not be construed to expand the scope of the license authorized by this chapter.

(t) Permitting a trainee or registered intern under one's supervision or control to perform, or permitting the trainee or registered intern to hold himself or herself out as competent to perform, professional services beyond the trainee's or registered intern's level of education, training, or experience.

(u) The violation of any statute or regulation governing the gaining and supervision of experience required by this chapter.

(v) Failure to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered.

Appendix C: Code of Ethics of the NASW

Approved by the 1996 NASW Delegate Assembly and revised by the 1999 NASW Delegate Assembly

Preamble

The primary mission of the social work profession is to enhance human well-being and help meet the basic human needs of all people, with particular attention to the needs and empowerment of people who are vulnerable, oppressed, and living in poverty. A historic and defining feature of social work is the profession's focus on individual well-being in a social context and the well-being of society. Fundamental to social work is attention to the environmental forces that create, contribute to, and address problems in living.

Social workers promote social justice and social change with and on behalf of clients. "Clients" is used inclusively to refer to individuals, families, groups, organizations, and communities. Social workers are sensitive to cultural and ethnic diversity and strive to end discrimination, oppression, poverty, and other forms of social injustice. These activities may be in the form of direct practice, community organizing, supervision, consultation, administration, advocacy, social and political action, policy development and implementation, education, and research and evaluation. Social workers seek to enhance the capacity of people to address their own needs. Social workers also seek to promote the responsiveness of organizations, communities, and other social institutions to individuals' needs and social problems.

The mission of the social work profession is rooted in a set of core values. These core values, embraced by social workers throughout the profession's history, are the foundation of social work's unique purpose and perspective:

• service
• social justice
• dignity and worth of the person
• importance of human relationships
• integrity
• competence.

This constellation of core values reflects what is unique to the social work profession. Core values, and the principles that flow from them, must be balanced within the context and complexity of the human experience.

Purpose of the NASW Code of Ethics

Professional ethics are at the core of social work. The profession has an obligation to articulate its basic values, ethical principles, and ethical standards. The NASW Code of Ethics sets forth these values, principles, and standards to guide social workers' conduct. The Code is relevant to all social workers and social work students, regardless of their professional functions, the settings in which they work, or the populations they serve.

The NASW Code of Ethics serves six purposes:

The Code identifies core values on which social work's mission is based.

The Code summarizes broad ethical principles that reflect the profession's core values and establishes a set of specific ethical standards that should be used to guide social work practice.

The Code is designed to help social workers identify relevant considerations when professional obligations conflict or ethical uncertainties arise.

The Code provides ethical standards to which the general public can hold the social work profession accountable.

The Code socializes practitioners new to the field to social work's mission, values, ethical principles, and ethical standards.

The Code articulates standards that the social work profession itself can use to assess whether social workers have engaged in unethical conduct. NASW has formal procedures to adjudicate ethics complaints filed against its members.* In subscribing to this Code, social workers are required to cooperate in its implementation, participate in NASW adjudication proceedings, and abide by any NASW disciplinary rulings or sanctions based on it.

*For information on NASW adjudication procedures, see NASW Procedures for the Adjudication of Grievances.

The Code offers a set of values, principles, and standards to guide decision making and conduct when ethical issues arise. It does not provide a set of rules that prescribe how social workers should act in all situations. Specific applications of the Code must take into account the context in which it is being considered and the possibility of conflicts among the Code's values, principles, and standards. Ethical responsibilities flow from all human relationships, from the personal and familial to the social and professional.

Further, the NASW Code of Ethics does not specify which values, principles, and standards are most important and ought to outweigh others in instances when they conflict. Reasonable differences of opinion can and do exist among social workers with respect to the ways in which values, ethical principles, and ethical standards should be rank ordered when they conflict. Ethical decision making in a given situation must apply the informed judgment of the individual social worker and should also consider how the issues would be judged in a peer review process where the ethical standards of the profession would be applied.

Ethical decision making is a process. There are many instances in social work where simple answers are not available to resolve complex ethical issues. Social workers should take into consideration all the values, principles, and standards in this Code that are relevant to any situation in which ethical judgment is warranted. Social workers' decisions and actions should be consistent with the spirit as well as the letter of this Code.

In addition to this Code, there are many other sources of information about ethical thinking that may be useful. Social workers should consider ethical theory and principles generally, social work theory and research, laws, regulations, agency policies, and other relevant codes of ethics, recognizing that among codes of ethics social workers should consider the NASW Code of Ethics as their primary source. Social workers also should be aware of the impact on ethical decision making of their clients' and their own personal values and cultural and religious beliefs and practices. They should be aware of any conflicts between personal and professional values and deal with them responsibly. For additional guidance social workers should consult the relevant literature on professional ethics and ethical decision making and seek appropriate consultation when faced with ethical dilemmas. This may involve consultation with an agency-based or social work organization's ethics committee, a regulatory body, knowledgeable colleagues, supervisors, or legal counsel.

Instances may arise when social workers' ethical obligations conflict with agency policies or relevant laws or regulations. When such conflicts occur, social workers must make a responsible effort to resolve the conflict in a manner that is consistent with the values, principles, and standards expressed in this Code. If a reasonable resolution of the conflict does not appear possible, social workers should seek proper consultation before making a decision.

The NASW Code of Ethics is to be used by NASW and by individuals, agencies, organizations, and bodies (such as licensing and regulatory boards, professional liability insurance providers, courts of law, agency boards of directors, government agencies, and other professional groups) that choose to adopt it or use it as a frame of reference. Violation of standards in this Code does not automatically imply legal liability or violation of the law. Such determination can only be made in the context of legal and judicial proceedings. Alleged violations of the Code would be subject to a peer review process. Such processes are generally separate from legal or administrative procedures and insulated from legal review or proceedings to allow the profession to counsel and discipline its own members.

A code of ethics cannot guarantee ethical behavior. Moreover, a code of ethics cannot resolve all ethical issues or disputes or capture the richness and complexity involved in striving to make responsible choices within a moral community. Rather, a code of ethics sets forth values, ethical principles, and ethical standards to which professionals aspire and by which their actions can be judged. Social workers' ethical behavior should result from their personal commitment to engage in ethical practice. The NASW Code of Ethics reflects the commitment of all social workers to uphold the profession's values and to act ethically. Principles and standards must be applied by individuals of good character who discern moral questions and, in good faith, seek to make reliable ethical judgments.

Ethical Principles

The following broad ethical principles are based on social work's core values of service, social justice, dignity and worth of the person, importance of human relationships, integrity, and competence. These principles set forth ideals to which all social workers should aspire.

Value: Service

Ethical Principle: Social workers' primary goal is to help people in need and to address social problems.

Social workers elevate service to others above self-interest. Social workers draw on their knowledge, values, and skills to help people in need and to address social problems. Social workers are encouraged to volunteer some portion of their professional skills with no expectation of significant financial return (pro bono service).

Value: Social Justice

Ethical Principle: Social workers challenge social injustice.

Social workers pursue social change, particularly with and on behalf of vulnerable and oppressed individuals and groups of people. Social workers' social change efforts are focused primarily on issues of poverty, unemployment, discrimination, and other forms of social injustice. These activities seek to promote sensitivity to and knowledge about oppression and cultural and ethnic diversity. Social workers strive to ensure access to needed information, services, and resources; equality of opportunity; and meaningful participation in decision making for all people.

Value: Dignity and Worth of the Person

Ethical Principle: Social workers respect the inherent dignity and worth of the person.

Social workers treat each person in a caring and respectful fashion, mindful of individual differences and cultural and ethnic diversity. Social workers promote clients' socially responsible self-determination. Social workers seek to enhance clients' capacity and opportunity to change and to address their own needs. Social workers are cognizant of their dual responsibility to clients and to the broader society. They seek to resolve conflicts between clients' interests and the broader society's interests in a socially responsible manner consistent with the values, ethical principles, and ethical standards of the profession.

Value: Importance of Human Relationships

Ethical Principle: Social workers recognize the central importance of human relationships.

Social workers understand that relationships between and among people are an important vehicle for change. Social workers engage people as partners in the helping process. Social workers seek to strengthen relationships among people in a purposeful effort to promote, restore, maintain, and enhance the well-being of individuals, families, social groups, organizations, and communities.

Value: Integrity

Ethical Principle: Social workers behave in a trustworthy manner.

Social workers are continually aware of the profession's mission, values, ethical principles, and ethical standards and practice in a manner consistent with them. Social workers act honestly and responsibly and promote ethical practices on the part of the organizations with which they are affiliated.

Value: Competence

Ethical Principle: Social workers practice within their areas of competence and develop and enhance their professional expertise.

Social workers continually strive to increase their professional knowledge and skills and to apply them in practice. Social workers should aspire to contribute to the knowledge base of the profession.

Ethical Standards

The following ethical standards are relevant to the professional activities of all social workers. These standards concern (1) social workers' ethical responsibilities to clients, (2) social workers' ethical responsibilities to colleagues, (3) social workers' ethical responsibilities in practice settings, (4) social workers' ethical responsibilities as professionals, (5) social workers' ethical responsibilities to the social work profession, and (6) social workers' ethical responsibilities to the broader society.

Some of the standards that follow are enforceable guidelines for professional conduct, and some are aspirational. The extent to which each standard is enforceable is a matter of professional judgment to be exercised by those responsible for reviewing alleged violations of ethical standards.

1. Social Workers' Ethical Responsibilities to Clients

1.01 Commitment to Clients

Social workers' primary responsibility is to promote the well-being of clients. In general, clients' interests are primary. However, social workers' responsibility to the larger society or specific legal obligations may on limited occasions supersede the loyalty owed clients, and clients should be so advised. (Examples include when a social worker is required by law to report that a client has abused a child or has threatened to harm self or others.)

1.02 Self-Determination

Social workers respect and promote the right of clients to self-determination and assist clients in their efforts to identify and clarify their goals. Social workers may limit clients' right to self-determination when, in the social workers' professional judgment, clients' actions or potential actions pose a serious, foreseeable, and imminent risk to themselves or others.

1.03 Informed Consent

(a) Social workers should provide services to clients only in the context of a professional relationship based, when appropriate, on valid informed consent. Social workers should use clear and understandable language to inform clients of the purpose of the services, risks related to the services, limits to services because of the requirements of a third-party payer, relevant costs, reasonable alternatives, clients' right to refuse or withdraw consent, and the time frame covered by the consent. Social workers should provide clients with an opportunity to ask questions.

(b) In instances when clients are not literate or have difficulty understanding the primary language used in the practice setting, social workers should take steps to ensure clients' comprehension. This may include providing clients with a detailed verbal explanation or arranging for a qualified interpreter or translator whenever possible.

(c) In instances when clients lack the capacity to provide informed consent, social workers should protect clients' interests by seeking permission from an appropriate third party, informing clients consistent with the clients' level of understanding. In such instances social workers should seek to ensure that the third party acts in a manner consistent with clients' wishes and interests. Social workers should take reasonable steps to enhance such clients' ability to give informed consent.

(d) In instances when clients are receiving services involuntarily, social workers should provide information about the nature and extent of services and about the extent of clients' right to refuse service.

(e) Social workers who provide services via electronic media (such as computer, telephone, radio, and television) should inform recipients of the limitations and risks associated with such services.

(f) Social workers should obtain clients' informed consent before audiotaping or videotaping clients or permitting observation of services to clients by a third party.

1.04 Competence

(a) Social workers should provide services and represent themselves as competent only within the boundaries of their education, training, license, certification, consultation received, supervised experience, or other relevant professional experience.

(b) Social workers should provide services in substantive areas or use intervention techniques or approaches that are new to them only after engaging in appropriate study, training, consultation, and supervision from people who are competent in those interventions or techniques.

(c) When generally recognized standards do not exist with respect to an emerging area of practice, social workers should exercise careful judgment and take responsible steps (including appropriate education, research, training, consultation, and supervision) to ensure the competence of their work and to protect clients from harm.

1.05 Cultural Competence and Social Diversity

(a) Social workers should understand culture and its function in human behavior and society, recognizing the strengths that exist in all cultures.

(b) Social workers should have a knowledge base of their clients' cultures and be able to demonstrate competence in the provision of services that are sensitive to clients' cultures and to differences among people and cultural groups.

(c) Social workers should obtain education about and seek to understand the nature of social diversity and oppression with respect to race, ethnicity, national origin, color, sex, sexual orientation, age, marital status, political belief, religion, and mental or physical disability.

1.06 Conflicts of Interest

(a) Social workers should be alert to and avoid conflicts of interest that interfere with the exercise of professional discretion and impartial judgment. Social workers should inform clients when a real or potential conflict of interest arises and take reasonable steps to resolve the issue in a manner that makes the clients' interests primary and protects clients' interests to the greatest extent possible. In some cases, protecting clients' interests may require termination of the professional relationship with proper referral of the client.

(b) Social workers should not take unfair advantage of any professional relationship or exploit others to further their personal, religious, political, or business interests.

(c) Social workers should not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client. In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries. (Dual or multiple relationships occur when social workers relate to clients in more than one relationship, whether professional, social, or business. Dual or multiple relationships can occur simultaneously or consecutively.)

(d) When social workers provide services to two or more people who have a relationship with each other (for example, couples, family members), social workers should clarify with all parties which individuals will be considered clients and the nature of social workers' professional obligations to the various individuals who are receiving services. Social workers who anticipate a conflict of interest among the individuals receiving services or who anticipate having to perform in potentially conflicting roles (for example, when a social worker is asked to testify in a child custody dispute or divorce proceedings involving clients) should clarify their role with the parties involved and take appropriate action to minimize any conflict of interest.

1.07 Privacy and Confidentiality

(a) Social workers should respect clients' right to privacy. Social workers should not solicit private information from clients unless it is essential to providing services or conducting social work evaluation or research. Once private information is shared, standards of confidentiality apply.

(b) Social workers may disclose confidential information when appropriate with valid consent from a client or a person legally authorized to consent on behalf of a client.

(c) Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons. The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person. In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.

(d) Social workers should inform clients, to the extent possible, about the disclosure of confidential information and the potential consequences, when feasible before the disclosure is made. This applies whether social workers disclose confidential information on the basis of a legal requirement or client consent.

(e) Social workers should discuss with clients and other interested parties the nature of confidentiality and limitations of clients' right to confidentiality. Social workers should review with clients circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. This discussion should occur as soon as possible in the social worker-client relationship and as needed throughout the course of the relationship.

(f) When social workers provide counseling services to families, couples, or groups, social workers should seek agreement among the parties involved concerning each individual's right to confidentiality and obligation to preserve the confidentiality of information shared by others. Social workers should inform participants in family, couples, or group counseling that social workers cannot guarantee that all participants will honor such agreements.

(g) Social workers should inform clients involved in family, couples, marital, or group counseling of the social worker's, employer's, and agency's policy concerning the social worker's disclosure of confidential information among the parties involved in the counseling.

(h) Social workers should not disclose confidential information to third-party payers unless clients have authorized such disclosure.

(i) Social workers should not discuss confidential information in any setting unless privacy can be ensured. Social workers should not discuss confidential information in public or semipublic areas such as hallways, waiting rooms, elevators, and restaurants.

(j) Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client's consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection.

(k) Social workers should protect the confidentiality of clients when responding to requests from members of the media.

(l) Social workers should protect the confidentiality of clients' written and electronic records and other sensitive information. Social workers should take reasonable steps to ensure that clients' records are stored in a secure location and that clients' records are not available to others who are not authorized to have access.

(m) Social workers should take precautions to ensure and maintain the confidentiality of information transmitted to other parties through the use of computers, electronic mail, facsimile machines, telephones and telephone answering machines, and other electronic or computer technology. Disclosure of identifying information should be avoided whenever possible.

(n) Social workers should transfer or dispose of clients' records in a manner that protects clients' confidentiality and is consistent with state statutes governing records and social work licensure.

(o) Social workers should take reasonable precautions to protect client confidentiality in the event of the social worker's termination of practice, incapacitation, or death.

(p) Social workers should not disclose identifying information when discussing clients for teaching or training purposes unless the client has consented to disclosure of confidential information.

(q) Social workers should not disclose identifying information when discussing clients with consultants unless the client has consented to disclosure of confidential information or there is a compelling need for such disclosure.

(r) Social workers should protect the confidentiality of deceased clients consistent with the preceding standards.

1.08 Access to Records

(a) Social workers should provide clients with reasonable access to records concerning the clients. Social workers who are concerned that clients' access to their records could cause serious misunderstanding or harm to the client should provide assistance in interpreting the records and consultation with the client regarding the records. Social workers should limit clients' access to their records, or portions of their records, only in exceptional circumstances when there is compelling evidence that such access would cause serious harm to the client. Both clients' requests and the rationale for withholding some or all of the record should be documented in clients' files.

(b) When providing clients with access to their records, social workers should take steps to protect the confidentiality of other individuals identified or discussed in such records.

1.09 Sexual Relationships

(a) Social workers should under no circumstances engage in sexual activities or sexual contact with current clients, whether such contact is consensual or forced.

(b) Social workers should not engage in sexual activities or sexual contact with clients' relatives or other individuals with whom clients maintain a close personal relationship when there is a risk of exploitation or potential harm to the client. Sexual activity or sexual contact with clients' relatives or other individuals with whom clients maintain a personal relationship has the potential to be harmful to the client and may make it difficult for the social worker and client to maintain appropriate professional boundaries. Social workers--not their clients, their clients' relatives, or other individuals with whom the client maintains a personal relationship--assume the full burden for setting clear, appropriate, and culturally sensitive boundaries.

(c) Social workers should not engage in sexual activities or sexual contact with former clients because of the potential for harm to the client. If social workers engage in conduct contrary to this prohibition or claim that an exception to this prohibition is warranted because of extraordinary circumstances, it is social workers--not their clients--who assume the full burden of demonstrating that the former client has not been exploited, coerced, or manipulated, intentionally or unintentionally.

(d) Social workers should not provide clinical services to individuals with whom they have had a prior sexual relationship. Providing clinical services to a former sexual partner has the potential to be harmful to the individual and is likely to make it difficult for the social worker and individual to maintain appropriate professional boundaries.

1.10 Physical Contact

Social workers should not engage in physical contact with clients when there is a possibility of psychological harm to the client as a result of the contact (such as cradling or caressing clients). Social workers who engage in appropriate physical contact with clients are responsible for setting clear, appropriate, and culturally sensitive boundaries that govern such physical contact.

1.11 Sexual Harassment

Social workers should not sexually harass clients. Sexual harassment includes sexual advances, sexual solicitation, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

1.12 Derogatory Language

Social workers should not use derogatory language in their written or verbal communications to or about clients. Social workers should use accurate and respectful language in all communications to and about clients.

1.13 Payment for Services

(a) When setting fees, social workers should ensure that the fees are fair, reasonable, and commensurate with the services performed. Consideration should be given to clients' ability to pay.

(b) Social workers should avoid accepting goods or services from clients as payment for professional services. Bartering arrangements, particularly involving services, create the potential for conflicts of interest, exploitation, and inappropriate boundaries in social workers' relationships with clients. Social workers should explore and may participate in bartering only in very limited circumstances when it can be demonstrated that such arrangements are an accepted practice among professionals in the local community, considered to be essential for the provision of services, negotiated without coercion, and entered into at the client's initiative and with the client's informed consent. Social workers who accept goods or services from clients as payment for professional services assume the full burden of demonstrating that this arrangement will not be detrimental to the client or the professional relationship.

(c) Social workers should not solicit a private fee or other remuneration for providing services to clients who are entitled to such available services through the social workers' employer or agency.

1.14 Clients Who Lack Decision-Making Capacity

When social workers act on behalf of clients who lack the capacity to make informed decisions, social workers should take reasonable steps to safeguard the interests and rights of those clients.

1.15 Interruption of Services

Social workers should make reasonable efforts to ensure continuity of services in the event that services are interrupted by factors such as unavailability, relocation, illness, disability, or death.

1.16 Termination of Services

(a) Social workers should terminate services to clients and professional relationships with them when such services and relationships are no longer required or no longer serve the clients' needs or interests.

(b) Social workers should take reasonable steps to avoid abandoning clients who are still in need of services. Social workers should withdraw services precipitously only under unusual circumstances, giving careful consideration to all factors in the situation and taking care to minimize possible adverse effects. Social workers should assist in making appropriate arrangements for continuation of services when necessary.

(c) Social workers in fee-for-service settings may terminate services to clients who are not paying an overdue balance if the financial contractual arrangements have been made clear to the client, if the client does not pose an imminent danger to self or others, and if the clinical and other consequences of the current nonpayment have been addressed and discussed with the client.

(d) Social workers should not terminate services to pursue a social, financial, or sexual relationship with a client.

(e) Social workers who anticipate the termination or interruption of services to clients should notify clients promptly and seek the transfer, referral, or continuation of services in relation to the clients' needs and preferences.

(f) Social workers who are leaving an employment setting should inform clients of appropriate options for the continuation of services and of the benefits and risks of the options.

2. Social Workers' Ethical Responsibilities to Colleagues

2.01 Respect

(a) Social workers should treat colleagues with respect and should represent accurately and fairly the qualifications, views, and obligations of colleagues.

(b) Social workers should avoid unwarranted negative criticism of colleagues in communications with clients or with other professionals. Unwarranted negative criticism may include demeaning comments that refer to colleagues' level of competence or to individuals' attributes such as race, ethnicity, national origin, color, sex, sexual orientation, age, marital status, political belief, religion, and mental or physical disability.

(c) Social workers should cooperate with social work colleagues and with colleagues of other professions when such cooperation serves the well-being of clients.

2.02 Confidentiality

Social workers should respect confidential information shared by colleagues in the course of their professional relationships and transactions. Social workers should ensure that such colleagues understand social workers' obligation to respect confidentiality and any exceptions related to it.

2.03 Interdisciplinary Collaboration

(a) Social workers who are members of an interdisciplinary team should participate in and contribute to decisions that affect the well-being of clients by drawing on the perspectives, values, and experiences of the social work profession. Professional and ethical obligations of the interdisciplinary team as a whole and of its individual members should be clearly established.

(b) Social workers for whom a team decision raises ethical concerns should attempt to resolve the disagreement through appropriate channels. If the disagreement cannot be resolved, social workers should pursue other avenues to address their concerns consistent with client well-being.

2.04 Disputes Involving Colleagues

(a) Social workers should not take advantage of a dispute between a colleague and an employer to obtain a position or otherwise advance the social workers' own interests.

(b) Social workers should not exploit clients in disputes with colleagues or engage clients in any inappropriate discussion of conflicts between social workers and their colleagues.

2.05 Consultation

(a) Social workers should seek the advice and counsel of colleagues whenever such consultation is in the best interests of clients.

(b) Social workers should keep themselves informed about colleagues' areas of expertise and competencies. Social workers should seek consultation only from colleagues who have demonstrated knowledge, expertise, and competence related to the subject of the consultation.

(c) When consulting with colleagues about clients, social workers should disclose the least amount of information necessary to achieve the purposes of the consultation.

2.06 Referral for Services

(a) Social workers should refer clients to other professionals when the other professionals' specialized knowledge or expertise is needed to serve clients fully or when social workers believe that they are not being effective or making reasonable progress with clients and that additional service is required.

(b) Social workers who refer clients to other professionals should take appropriate steps to facilitate an orderly transfer of responsibility. Social workers who refer clients to other professionals should disclose, with clients' consent, all pertinent information to the new service providers.

(c) Social workers are prohibited from giving or receiving payment for a referral when no professional service is provided by the referring social worker.

2.07 Sexual Relationships

(a) Social workers who function as supervisors or educators should not engage in sexual activities or contact with supervisees, students, trainees, or other colleagues over whom they exercise professional authority.

(b) Social workers should avoid engaging in sexual relationships with colleagues when there is potential for a conflict of interest. Social workers who become involved in, or anticipate becoming involved in, a sexual relationship with a colleague have a duty to transfer professional responsibilities, when necessary, to avoid a conflict of interest.

2.08 Sexual Harassment

Social workers should not sexually harass supervisees, students, trainees, or colleagues. Sexual harassment includes sexual advances, sexual solicitation, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

2.09 Impairment of Colleagues

(a) Social workers who have direct knowledge of a social work colleague's impairment that is due to personal problems, psychosocial distress, substance abuse, or mental health difficulties and that interferes with practice effectiveness should consult with that colleague when feasible and assist the colleague in taking remedial action.

(b) Social workers who believe that a social work colleague's impairment interferes with practice effectiveness and that the colleague has not taken adequate steps to address the impairment should take action through appropriate channels established by employers, agencies, NASW, licensing and regulatory bodies, and other professional organizations.

2.10 Incompetence of Colleagues

(a) Social workers who have direct knowledge of a social work colleague's incompetence should consult with that colleague when feasible and assist the colleague in taking remedial action.

(b) Social workers who believe that a social work colleague is incompetent and has not taken adequate steps to address the incompetence should take action through appropriate channels established by employers, agencies, NASW, licensing and regulatory bodies, and other professional organizations.

2.11 Unethical Conduct of Colleagues

(a) Social workers should take adequate measures to discourage, prevent, expose, and correct the unethical conduct of colleagues.

(b) Social workers should be knowledgeable about established policies and procedures for handling concerns about colleagues' unethical behavior. Social workers should be familiar with national, state, and local procedures for handling ethics complaints. These include policies and procedures created by NASW, licensing and regulatory bodies, employers, agencies, and other professional organizations.

(c) Social workers who believe that a colleague has acted unethically should seek resolution by discussing their concerns with the colleague when feasible and when such discussion is likely to be productive.

(d) When necessary, social workers who believe that a colleague has acted unethically should take action through appropriate formal channels (such as contacting a state licensing board or regulatory body, an NASW committee on inquiry, or other professional ethics committees).

(e) Social workers should defend and assist colleagues who are unjustly charged with unethical conduct.

3. Social Workers' Ethical Responsibilities in Practice Settings

3.01 Supervision and Consultation

(a) Social workers who provide supervision or consultation should have the necessary knowledge and skill to supervise or consult appropriately and should do so only within their areas of knowledge and competence.

(b) Social workers who provide supervision or consultation are responsible for setting clear, appropriate, and culturally sensitive boundaries.

(c) Social workers should not engage in any dual or multiple relationships with supervisees in which there is a risk of exploitation of or potential harm to the supervisee.

(d) Social workers who provide supervision should evaluate supervisees' performance in a manner that is fair and respectful.

3.02 Education and Training

(a) Social workers who function as educators, field instructors for students, or trainers should provide instruction only within their areas of knowledge and competence and should provide instruction based on the most current information and knowledge available in the profession.

(b) Social workers who function as educators or field instructors for students should evaluate students' performance in a manner that is fair and respectful.

(c) Social workers who function as educators or field instructors for students should take reasonable steps to ensure that clients are routinely informed when services are being provided by students.

(d) Social workers who function as educators or field instructors for students should not engage in any dual or multiple relationships with students in which there is a risk of exploitation or potential harm to the student. Social work educators and field instructors are responsible for setting clear, appropriate, and culturally sensitive boundaries.

3.03 Performance Evaluation

Social workers who have responsibility for evaluating the performance of others should fulfill such responsibility in a fair and considerate manner and on the basis of clearly stated criteria.

3.04 Client Records

(a) Social workers should take reasonable steps to ensure that documentation in records is accurate and reflects the services provided.

(b) Social workers should include sufficient and timely documentation in records to facilitate the delivery of services and to ensure continuity of services provided to clients in the future.

(c) Social workers' documentation should protect clients' privacy to the extent that is possible and appropriate and should include only information that is directly relevant to the delivery of services.

(d) Social workers should store records following the termination of services to ensure reasonable future access. Records should be maintained for the number of years required by state statutes or relevant contracts.

3.05 Billing

Social workers should establish and maintain billing practices that accurately reflect the nature and extent of services provided and that identify who provided the service in the practice setting.

3.06 Client Transfer

(a) When an individual who is receiving services from another agency or colleague contacts a social worker for services, the social worker should carefully consider the client's needs before agreeing to provide services. To minimize possible confusion and conflict, social workers should discuss with potential clients the nature of the clients' current relationship with other service providers and the implications, including possible benefits or risks, of entering into a relationship with a new service provider.

(b) If a new client has been served by another agency or colleague, social workers should discuss with the client whether consultation with the previous service provider is in the client's best interest.

3.07 Administration

(a) Social work administrators should advocate within and outside their agencies for adequate resources to meet clients' needs.

(b) Social workers should advocate for resource allocation procedures that are open and fair. When not all clients' needs can be met, an allocation procedure should be developed that is nondiscriminatory and based on appropriate and consistently applied principles.

(c) Social workers who are administrators should take reasonable steps to ensure that adequate agency or organizational resources are available to provide appropriate staff supervision.

(d) Social work administrators should take reasonable steps to ensure that the working environment for which they are responsible is consistent with and encourages compliance with the NASW Code of Ethics. Social work administrators should take reasonable steps to eliminate any conditions in their organizations that violate, interfere with, or discourage compliance with the Code.

3.08 Continuing Education and Staff Development

Social work administrators and supervisors should take reasonable steps to provide or arrange for continuing education and staff development for all staff for whom they are responsible. Continuing education and staff development should address current knowledge and emerging developments related to social work practice and ethics.

3.09 Commitments to Employers

(a) Social workers generally should adhere to commitments made to employers and employing organizations.

(b) Social workers should work to improve employing agencies' policies and procedures and the efficiency and effectiveness of their services.

(c) Social workers should take reasonable steps to ensure that employers are aware of social workers' ethical obligations as set forth in the NASW Code of Ethics and of the implications of those obligations for social work practice.

(d) Social workers should not allow an employing organization's policies, procedures, regulations, or administrative orders to interfere with their ethical practice of social work. Social workers should take reasonable steps to ensure that their employing organizations' practices are consistent with the NASW Code of Ethics.

(e) Social workers should act to prevent and eliminate discrimination in the employing organization's work assignments and in its employment policies and practices.

(f) Social workers should accept employment or arrange student field placements only in organizations that exercise fair personnel practices.

(g) Social workers should be diligent stewards of the resources of their employing organizations, wisely conserving funds where appropriate and never misappropriating funds or using them for unintended purposes.

3.10 Labor-Management Disputes

(a) Social workers may engage in organized action, including the formation of and participation in labor unions, to improve services to clients and working conditions.

(b) The actions of social workers who are involved in labor-management disputes, job actions, or labor strikes should be guided by the profession's values, ethical principles, and ethical standards. Reasonable differences of opinion exist among social workers concerning their primary obligation as professionals during an actual or threatened labor strike or job action. Social workers should carefully examine relevant issues and their possible impact on clients before deciding on a course of action.

4. Social Workers' Ethical Responsibilities as Professionals

4.01 Competence

(a) Social workers should accept responsibility or employment only on the basis of existing competence or the intention to acquire the necessary competence.

(b) Social workers should strive to become and remain proficient in professional practice and the performance of professional functions. Social workers should critically examine and keep current with emerging knowledge relevant to social work. Social workers should routinely review the professional literature and participate in continuing education relevant to social work practice and social work ethics.

(c) Social workers should base practice on recognized knowledge, including empirically based knowledge, relevant to social work and social work ethics.

4.02 Discrimination

Social workers should not practice, condone, facilitate, or collaborate with any form of discrimination on the basis of race, ethnicity, national origin, color, sex, sexual orientation, age, marital status, political belief, religion, or mental or physical disability.

4.03 Private Conduct

Social workers should not permit their private conduct to interfere with their ability to fulfill their professional responsibilities.

4.04 Dishonesty, Fraud, and Deception

Social workers should not participate in, condone, or be associated with dishonesty, fraud, or deception.

4.05 Impairment

(a) Social workers should not allow their own personal problems, psychosocial distress, legal problems, substance abuse, or mental health difficulties to interfere with their professional judgment and performance or to jeopardize the best interests of people for whom they have a professional responsibility.

(b) Social workers whose personal problems, psychosocial distress, legal problems, substance abuse, or mental health difficulties interfere with their professional judgment and performance should immediately seek consultation and take appropriate remedial action by seeking professional help, making adjustments in workload, terminating practice, or taking any other steps necessary to protect clients and others.

4.06 Misrepresentation

(a) Social workers should make clear distinctions between statements made and actions engaged in as a private individual and as a representative of the social work profession, a professional social work organization, or the social worker's employing agency.

(b) Social workers who speak on behalf of professional social work organizations should accurately represent the official and authorized positions of the organizations.

(c) Social workers should ensure that their representations to clients, agencies, and the public of professional qualifications, credentials, education, competence, affiliations, services provided, or results to be achieved are accurate. Social workers should claim only those relevant professional credentials they actually possess and take steps to correct any inaccuracies or misrepresentations of their credentials by others.

4.07 Solicitations

(a) Social workers should not engage in uninvited solicitation of potential clients who, because of their circumstances, are vulnerable to undue influence, manipulation, or coercion.

(b) Social workers should not engage in solicitation of testimonial endorsements (including solicitation of consent to use a client's prior statement as a testimonial endorsement) from current clients or from other people who, because of their particular circumstances, are vulnerable to undue influence.

4.08 Acknowledging Credit

(a) Social workers should take responsibility and credit, including authorship credit, only for work they have actually performed and to which they have contributed.

(b) Social workers should honestly acknowledge the work of and the contributions made by others.

5. Social Workers' Ethical Responsibilities to the Social Work Profession

5.01 Integrity of the Profession

(a) Social workers should work toward the maintenance and promotion of high standards of practice.

(b) Social workers should uphold and advance the values, ethics, knowledge, and mission of the profession. Social workers should protect, enhance, and improve the integrity of the profession through appropriate study and research, active discussion, and responsible criticism of the profession.

(c) Social workers should contribute time and professional expertise to activities that promote respect for the value, integrity, and competence of the social work profession. These activities may include teaching, research, consultation, service, legislative testimony, presentations in the community, and participation in their professional organizations.

(d) Social workers should contribute to the knowledge base of social work and share with colleagues their knowledge related to practice, research, and ethics. Social workers should seek to con-tribute to the profession's literature and to share their knowledge at professional meetings and conferences.

(e) Social workers should act to prevent the unauthorized and unqualified practice of social work.

5.02 Evaluation and Research

(a) Social workers should monitor and evaluate policies, the implementation of programs, and practice interventions.

(b) Social workers should promote and facilitate evaluation and research to contribute to the development of knowledge.

(c) Social workers should critically examine and keep current with emerging knowledge relevant to social work and fully use evaluation and research evidence in their professional practice.

(d) Social workers engaged in evaluation or research should carefully consider possible consequences and should follow guidelines developed for the protection of evaluation and research participants. Appropriate institutional review boards should be consulted.

(e) Social workers engaged in evaluation or research should obtain voluntary and written informed consent from participants, when appropriate, without any implied or actual deprivation or penalty for refusal to participate; without undue inducement to participate; and with due regard for participants' well-being, privacy, and dignity. Informed consent should include information about the nature, extent, and duration of the participation requested and disclosure of the risks and benefits of participation in the research.

(f) When evaluation or research participants are incapable of giving informed consent, social workers should provide an appropriate explanation to the participants, obtain the participants' assent to the extent they are able, and obtain written consent from an appropriate proxy.

(g) Social workers should never design or conduct evaluation or research that does not use consent procedures, such as certain forms of naturalistic observation and archival research, unless rigorous and responsible review of the research has found it to be justified because of its prospective scientific, educational, or applied value and unless equally effective alternative procedures that do not involve waiver of consent are not feasible.

(h) Social workers should inform participants of their right to withdraw from evaluation and research at any time without penalty.

(i) Social workers should take appropriate steps to ensure that participants in evaluation and research have access to appropriate supportive services.

(j) Social workers engaged in evaluation or research should protect participants from unwarranted physical or mental distress, harm, danger, or deprivation.

(k) Social workers engaged in the evaluation of services should discuss collected information only for professional purposes and only with people professionally concerned with this information.

(l) Social workers engaged in evaluation or research should ensure the anonymity or confidentiality of participants and of the data obtained from them. Social workers should inform participants of any limits of confidentiality, the measures that will be taken to ensure confidentiality, and when any records containing research data will be destroyed.

(m) Social workers who report evaluation and research results should protect participants' confidentiality by omitting identifying information unless proper consent has been obtained authorizing disclosure.

(n) Social workers should report evaluation and research findings accurately. They should not fabricate or falsify results and should take steps to correct any errors later found in published data using standard publication methods.

(o) Social workers engaged in evaluation or research should be alert to and avoid conflicts of interest and dual relationships with participants, should inform participants when a real or potential conflict of interest arises, and should take steps to resolve the issue in a manner that makes participants' interests primary.

(p) Social workers should educate themselves, their students, and their colleagues about responsible research practices.

6. Social Workers' Ethical Responsibilities to the Broader Society

6.01 Social Welfare

Social workers should promote the general welfare of society, from local to global levels, and the development of people, their communities, and their environments. Social workers should advocate for living conditions conducive to the fulfillment of basic human needs and should promote social, economic, political, and cultural values and institutions that are compatible with the realization of social justice.

6.02 Public Participation

Social workers should facilitate informed participation by the public in shaping social policies and institutions.

6.03 Public Emergencies

Social workers should provide appropriate professional services in public emergencies to the greatest extent possible.

6.04 Social and Political Action

(a) Social workers should engage in social and political action that seeks to ensure that all people have equal access to the resources, employment, services, and opportunities they require to meet their basic human needs and to develop fully. Social workers should be aware of the impact of the political arena on practice and should advocate for changes in policy and legislation to improve social conditions in order to meet basic human needs and promote social justice.

(b) Social workers should act to expand choice and opportunity for all people, with special regard for vulnerable, disadvantaged, oppressed, and exploited people and groups.

(c) Social workers should promote conditions that encourage respect for cultural and social diversity within the United States and globally. Social workers should promote policies and practices that demonstrate respect for difference, support the expansion of cultural knowledge and resources, advocate for programs and institutions that demonstrate cultural competence, and promote policies that safeguard the rights of and confirm equity and social justice for all people.

(d) Social workers should act to prevent and eliminate domination of, exploitation of, and discrimination against any person, group, or class on the basis of race, ethnicity, national origin, color, sex, sexual orientation, age, marital status, political belief, religion, or mental or physical disability.

Appendix D: California Legal Definition of Social Work Practice

Section: 4996.9. CLINICAL SOCIAL WORK AND PSYCHOTHERAPY DEFINED

The practice of clinical social work is defined as a service in which a special knowledge of social resources, human capabilities, and the part that unconscious motivation plays in determining behavior, is directed at helping people to achieve more adequate, satisfying, and productive social adjustments. The application of social work principles and methods includes, but is not restricted to, counseling and using applied psychotherapy of a nonmedical nature with individuals, families, or groups; providing information and referral services; providing or arranging for the provision of social services; explaining or interpreting the psychosocial aspects in the situations of individuals, families, or groups; helping communities to organize, to provide, or to improve social or health services; or doing research related to social work.

Psychotherapy, within the meaning of this chapter, is the use of psychosocial methods within a professional relationship, to assist the person or persons to achieve a better psychosocial adaptation, to acquire greater human realization of psychosocial potential and adaptation, to modify internal and external conditions which affect individuals, groups, or communities in respect to behavior, emotions, and thinking, in respect to their intrapersonal and interpersonal processes.

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Citations

Legislation

Business and Professions Code section 2290.5

Business and Professions Code section 728

California Constitution, Article 1, Declaration of Rights. Retrieved from http://www.leginfo.ca.gov/.const/.article_1

Civil Code section 43.93

Civil Code section 56.10

Civil Code section 56.11 (c)

Civil Code section 56.37

Civil Code section 1013(c)

Evidence Code section 1010

Evidence Code section 1014, 1015

Family Code section 6924

Health & Safety Code section 123105 (e)

Health & Safety Code section 123110 (a)

Health & Safety Code section 123111 (a)

Health & Safety Code section 123115 (a)(b)

Health & Safety Code section 123130 (a)

Health & Safety Code section 123145 (a)

Health & Safety Code section 123149.5 (c)

Penal Code section 11164

Penal Code section 11165.7

Penal Code 11166

Penal Code section 11166(a)(1)

Penal Code section 15610.23 (a)(b)

Penal Code section 15610.27

Penal Code section 15630 (a)

Welfare and Institutions Code section 18951 (f)(f)

Welfare and Institutions Code section 15610-15610.65

Welfare and Institutions Code section 15630-15632

Welfare and Institutions Code section 15633-15637

Code of Federal Regulations chapter 45 section 164.501 (2007). Psychotherapy notes.

Code of Federal Regulations captor 45 section 164.502 (b) (2007). Uses and disclosures of protected health information: general rules.

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Ewing v. Goldstein, 15 Cal Rptr. 3d 864 (Cal. Ct. App. 2004) and Ewing v. Northridge Hospital Medical Center, 16 Cal Rptr. 3d 591 (Cal. Ct. App. 2004)

Griswold v. Connecticut, 381 U.S. 479. Retrieved from http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZC.html

Hamman v. County of Maricopa, 1989.

Jablonski v United States of America, 1983.

Lindsey v. United States of America, (693 F. Supp. 1012 [U.S. Dist. 1988]).

Mark L. (2001) 94 Cal. App. 4th 573, and Evid. Code, ' 1013, subds. (a), Evid. Code, ' 1013, subds. (b).

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