No psychotherapist wants a licensing board complaint or malpractice suit filed against them. While the overall risk of such events happening during the course of one’s career can be fairly low, their consequences may be quite significant for the psychotherapist. Even just the threat of such actions being taken can be stressful and may be a significant source of distress experienced by psychotherapists (Knapp et al., 2013; Packman et al., 2009). Being sued for malpractice and having a licensing board complaint filed against oneself have long been found to be very stressful and even traumatizing events for health and mental health professionals (e.g., Adames et al., 2023; Charles et al., 1984; Montgomery et al., 1999). Such actions can have debilitating emotional consequences for the clinician, impacting both their professional and personal lives; these may be time consuming and costly processes, at times seemingly taking over one’s life and often taking years to resolve; and they may negatively impact one’s professional reputation, insurability, employment opportunities, and earnings (Kennedy et al., 2003).
Risk Management and Defensive Practice
It is therefore quite reasonable to expect that all psychotherapists will want to do all they reasonably can to avoid such events from occurring. While there is no known way of guaranteeing that a complaint or lawsuit will never be filed, there are steps one can take to help minimize the chances of this occurring, and if one is filed, to greatly reduce the chances of a negative outcome occurring. Collectively, the actions psychotherapists may take, both proactively and in response to challenges and difficulties that may arise in clinical practice, are known as risk management (Knapp et al., 2012). Risk management strategies, when applied appropriately and effectively, minimize risk to the clinician while simultaneously serving the client’s best interests.
Risk management is described as prudent practice and is contrasted with defensive practice which is described as “risk management in the extreme” (Younggren et al., 2016, p. 403), something that is typically motivated by the clinician’s desire to reduce the risk of complaints against them and that not only may be inconsistent with clients’ best interests, but that may actually be harmful to clients (Kleespies, 2014). In defensive practice, clinicians frequently over- or under-respond to client risk such as by rushing to hospitalize clients immediately upon any mention of suicidal thoughts, conducting extra tests or assessments that may not be relevant to providing effective treatment, and refusing to work with certain clients such as those perceived to be at risk for harm to self or others and those who may be perceived as being potentially litigious (Kleespies, 2014; Montgomery et al., 1999; Wilbert & Fulero, 1988).
Effective Risk Management
When appropriately applied, risk management strategies are consistent with the aspirational General Principles of the Ethical Principles of Psychologists and Code of Conduct and its enforceable Ethics Standards (APA, 2017). When guided by these ethics principles and standards, the probability of a positive outcome for client and clinician alike is greatly increased (Knapp et al., 2012). Put most succinctly, Knapp and VandeCreek (1995) boil effective risk management down to “Conduct Good Psychotherapy” (p. 67). While one cannot effectively argue with this advice, these authors and others cited above each describe essential strategies and practices essential to effective risk management.
There are multiple actions one can take based on common sources of complaints against mental health clinicians. These include avoiding sexual intimacies and other inappropriate boundary violations and exploitative and harmful multiple relationships with clients and those associated with them, not releasing confidential information without appropriate authorization, limiting your practice to areas where you possess sufficient clinical competence based on prevailing professional practice standards, not engaging in financial exploitation or fraudulent billing practices, conducting appropriate risk assessments when indicated based on timely and appropriate assessments of clients’ treatment needs, never abandoning clients, and ensuring that subordinates are appropriately supervised (DeMers & Schaffer, 2012). Additionally, psychotherapists should utilize a decision-making process when confronted with ethical dilemmas, should engage in ongoing self-care to help ensure that ongoing stressors and challenges do not negatively impact one’s professional functioning, and should work to establish and maintain effective relationships with their clients (Younggren et al., 2016).
In essence, each psychotherapist should practice ethically and not allow one’s professional conduct to fall below accepted practice standards. While each of the above-mentioned goals are important, should a complaint ever be filed, how will one demonstrate their reasonable, good faith efforts to meet or exceed prevailing professional practice standards? Risk management experts (e.g., Knapp et al., 2013) describe three essential risk management strategies, informed consent, documentation, and consultation, that must be thoughtfully and effectively applied consistently in the course of each clinician’s professional activities to achieve this goal. Applying these strategies in a cursory or minimal manner to ‘check the box’ will not prove helpful in preventing and responding to complaints. How each of these is applied on an ongoing basis will form the basis of effective risk management for clinician and client alike
Informed consent focuses on the sharing of information with prospective and current clients sufficient for them to be able to make a reasoned decision about participation. Informed consent should be a collaborative process that engages the client in decision-making through open discussion of the professional services being offered, reasonably available options, and the relative risks and benefits of each. Informed consent goes far beyond a written document the client is given to read and then sign. While this may be an important component of the informed consent process, by itself it is insufficient (Snyder & Barnett, 2006).
For the informed consent process to be considered valid four criteria must be met (Knapp et al., 2017):
- The consent must be given voluntarily (there can be no coercion).
- The individual must be competent to give consent. This includes having the legal authority to consent on their own behalf (e.g., minors of certain ages are not afforded this right, parents who do not have any legal custody of their minor child do not have this right). Additionally, the individual must have the cognitive or intellectual capacity to consent. Individuals with significant dementia, psychosis, or impairment from substances may lack this ability.
- The clinician must actively ensure the client’s understanding of what they are agreeing to. Merely asking if they have any questions is insufficient. Some clients may think they understand the parameters of the consent agreement when they do not, and others may not understand but are not comfortable acknowledging this to their psychotherapist. Discussing the details of the informed consent agreement and having the client explain these details and their implications for them in their own words will help ensure clients actually understand what they are agreeing to.
- The informed consent process must be both written and verbal. The client receives the informed consent document, it is reviewed and discussed verbally to ensure the client’s understanding and acceptance of this, and then the details of this process are documented in the treatment record.
It also should be understood that informed consent is an ongoing process, not a one-time event. Anytime a substantive change to the agreement is being considered (e.g., suggesting a client in individual psychotherapy also enter group treatment) the informed consent agreement should be updated. Additionally, the informed consent agreement should be reviewed with the client periodically to ensure their ongoing understanding of it and its implications (e.g., the need to report certain behaviors if they are disclosed by the client).
There are numerous key issues that should be included in every informed consent agreement. One goal of the informed consent process is for the client to have realistic expectations regarding each of these at the outset of the professional relationship. These include:
- Confidentiality and its limits - What information will stay private, what information might need to be shared with others and under what circumstances, the involvement of any third parties, and what steps the psychotherapist will take to respect and protect the client’s privacy.
- Fees and financial arrangements - What the fees are for each service the psychotherapists provides, to include treatment sessions, assessments, report writing, telephone calls, e-mails, etc.; any fees charged for late cancellations or missed appointments; any participation in insurance or managed care and the role of pre-authorizations, deductibles, and co-pays, when payment for each service is due, and the mechanism by which payment is made.
- Record keeping processes – The fact that all communications with and about the client are documented and maintained in the treatment record, where and how are the records are stored, the client’s right to access their treatment records.
- Nature and anticipated course of treatment – It is essential that psychotherapists share sufficient information to demystify the psychotherapy process and help the client to have realistic expectations and a realistic understanding of their and the psychotherapist’s roles and responsibilities in treatment. Clients should understand reasons for ending the professional relationship (both client and clinician motivated) and the process or mechanisms for doing so.
- Communications between treatment sessions – Clients should have realistic expectations regarding psychotherapist availability and typical response time to communications by the client to the psychotherapist between appointments.
- Emergency procedures - After-hour availability, how and when to contact the clinician between sessions if a crisis is experienced, and when to call 911 or go to one’s local emergency room.
- Recording – Clients must give permission to be recorded such as is often done with trainee clinicians who are receiving supervision of all professional services they provide.
- Clinician credentials and experience/expertise – Clients have the right to know of the psychotherapist’s licensing status, level of training, amount of experience, and any additional credentials, certifications, or areas of specialization.
Other issues that may be relevant to the reasons the treatment is being provided and they type of services being provided should also be addressed as part of this process. To serve the client’s best interests, the informed consent process should maximize the client’s involvement in their own treatment planning (Knapp et al., 2013) and should be engaged in flexibly, taking into consideration each client’s individual needs and differences (e.g., age, ability status, educational level, culture, language). Engaging in this process through collaborative discussion and decision-making to help the client to have realistic expectations of treatment, for their psychotherapist, and for themselves does not simply reduce risk for the psychotherapist, but also communicates respect for the clients’ autonomy, and increases the trust between the client and clinician, and increases the likelihood of a positive treatment outcome (Fisher & Oransky, 2008).
Timely, accurate, and comprehensive documentation not only protects the clinician from complaints, but it also honors and respects the clients’ privacy and helps to foster effective, high-quality treatment (Reamer, 2005). Solid documentation creates a record that can be sent to other providers (Knapp et al., 2013) which assists with the continuity and coordination of services. It can help clinicians refresh their memory between sessions which leads to higher quality of care. Good documentation also serves as a tool for assessment and planning, a way to evaluate and monitor the progress that a client is making, and a form of accountability. But deciding exactly what to document can be a challenge. Good documentation would satisfy a lawyer when used as a defense against a complaint and would satisfy the client when used as a record of treatment progress. In other words, it should serve and protect all parties (Reamer, 2005).
Should a complaint be filed against a psychotherapist it is the treatment record that will be seen as the tangible record of the clinician’s efforts to meet or exceed prevailing professional practice standards. Thus, it is essential that psychotherapists create each treatment record not just for their own purposes but also to convey to others what transpired in the professional relationship and treatment process. It is hoped that readers of the treatment record will see clear evidence of the high quality of the treatment services provided. It should be clear to the reader what services were provided and to whom; what the client’s level of participation, cooperation, and follow-through with recommendations were; what options were considered, what decisions were made, and the rationale behind them; what the client’s presenting problems were and changes in them over time; and what risk assessments were conducted, their results, and actions taken as a result. Further, all consultations and referrals made should be documented, all communications with the client outside of treatment sessions and with others regarding the client should be documented, and all recommendations made to clients should clearly be documented.
Consultation refers to the process of seeking input from expert colleagues to gain more information and/or new perspectives to assist the psychotherapist to provide the highest possible quality of professional services. No psychotherapist can be expected to know everything or to know how to best respond to every clinical situation they are confronted with over the course of a career. What psychotherapists are expected to do is to know the limits of their expertise and to know when support, input, and assistance from colleagues would be consistent with the profession’s aspirational ethics ideals as articulated in the General Principles of the APA Ethics Code (APA, 2017). Thus, clinicians should seek consultations when faced with an especially challenging or high-risk clinical situation, when an ethical dilemma is present, or when it is unclear if the clinician possesses the necessary competence to meet the client’s treatment needs.
Knapp et al. (2013), list three specific benefits to consultation. First, the clinician receives new information. By speaking with an additional clinician, one can receive new ideas, notice new things, and increase their understanding of their own client. Second, the clinician you choose to consult may be think about the case with less emotionality and/or more clarity; they may be able to point out blind spots in the way you are conceptualizing the case. Third, you may receive feedback on the way you are thinking about the case. During consultation, it can be helpful to follow a few simple tips that can maximize these benefits: enter the consultation space with openness to new perspectives and non-defensiveness, write down what questions you have ahead of time, and do not seek confirmation only for an already determined course of treatment. Rather, be willing an open to other ideas about how to proceed with treatment (Knapp et al., 2013). On-going peer consultation may be an excellent way for even seasoned psychotherapists to continue to provide the best possible care for their clients.
Seeing consultation should not be seen as a sign of incompetence, inadequacy, or weakness. Such thinking would likely result in avoiding consultation, something that would increase risk for client and clinician alike. From a risk management perspective consultation demonstrates:
- an understanding of the complexity of a client’s treatment needs and clinical situation,
- an understanding and acceptance of the limits of one’s expertise,
- a desire to provide the client with the best treatment possible, and
- a commitment to the highest ethics ideals of the profession.
It is hoped that all readers will see risk management, when done correctly and effectively, as a positive and helpful process that is consistent with psychotherapists’ ethical obligations. Each risk management strategy discussed should be embraced and integrated into psychotherapists’ ongoing clinical practice to provide client with the highest possible quality of care while simultaneously significantly reducing risk to the psychotherapist.
Cite This Article
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