Younggren, J. N., Fisher, M. A., Foote, W. E., & Hjelt, S. E. (2011). A legal and ethical review of patient responsibilities and psychotherapist duties. Professional Psychology: Research and Practice, 42(2), 160-168. doi:10.1037/a0023142
This HTML version may not exactly replicate the final version as published in the APA journal. It is not the copy of record. The published version is available in Professional Psychology: Research and Practice. © 2011, American Psychological Association.
A Legal and Ethical Review of Patient Responsibilities and Therapist Duties
J. N. Younggren, M. A. Fisher, W. E. Foote & S. E. Hjelt
The ethics and standards of practice literature have long focused on the duties that psychotherapists owe their patients. While this has been valuable to the profession, it has created a circumstance where psychotherapists have focused on their duties and responsibilities to their patients with little understanding or respect for how the conduct of a patient can impact those factors. These articles will review these factors from both an ethical and legal perspective. In addition, all of the articlesdiscuss the premise that, while the psychotherapist has the primary responsibilities when rendering treatment to a patient, the treatment alliance is actually a dynamic that changes depending upon the conduct of both the psychotherapist and the patient.
PsychologistDuties, Patient Responsibilities, and Psychotherapy Termination
Jeffrey N. Younggren
American Psychological Association Insurance Trust
Psychologists are all too often prone to view duty in psychotherapy in a unidirectional fashion in spite of the prevalence of both literature (Davis, 2008; Davis & Younggren, 2009; Hjelt, 2007; Younggren & Gottlieb, 2008) and legal cases (Ensworth v. Mullvain, 1990; Sparks v. Hicks, 1996) supporting the existence of both psychotherapist and patient duties in the treatment relationship. That is, regardless of the nature of a case, the changes that have occurred in the case, or the conduct of the patient, some believe they continue to have a duty to treat. This attitude, which is also reflected in some state licensing laws (e.g., Indiana Administrative Code, 2009), can lead many psychologists to put themselves at risk professionally and personally, despite the fact that dutychanges for both parties in the treatment dyad, based upon the nature of the case and the conduct of thepatient. What is created by this misunderstanding of psychotherapist’s beliefs and ethical/legal reality is a very risky ethical, legal, and potentially dangerous, dilemma (Miller v. Oregon Board, 2004). This is because some clinicians continue to treat patients that they should terminate, losing sight of some very significant ethical tenants such as who is responsible for directing treatment, the ethical prohibition against the provision of unnecessary and ineffective treatmentand the impact on the quality of professional services when psychologists are threatened or endangered. Any or all of these can occur when this unilateral view of professional duty results in choices that extend conflicted and/or nonproductive treatment relationships.
I have had the opportunity to do hundreds of risk management consultations over the years and have become greatly concerned about how distorted many clinicians’ views are regarding duty when dealing with termination of the professional relationship. Frequently, when discussing a case where no progress is happening, conflict exists at every corner, payment for services has stopped, treatment goals have become lost, and patients are not compliant, psychologists often respond to the suggestion that they terminate with the question, “Isn’t that abandonment?” The answer to this question, of course, is, “No.” In these types of cases termination is not only likely to be appropriate but it is often also necessary and to do otherwise can actually put the treating psychologist at risk.
Younggren and Gottlieb (2008) defined termination as “the ethically and clinicallyappropriate process by which a professional relationship is ended” and abandonment as the absence of that process (p. 500). These authors further stated that “abandonment represents the failure of thepsychologist to take the clinically indicated and ethically appropriatesteps to terminate a professional relationship” (p. 500).According to these authors, and others, terminating a case over the objection of the patient or when the nature of the contractual relationship with the patient has changed may not only be appropriate, but it may be ethically necessary (Davis, 2009). It is not termination itselfthat is problematic in this circumstance but how it is accomplished. In fact, it could be argued that under some of these conditions, cliniciansmight even have a duty to terminate.
Duty, in the case of a psychotherapeutic relationship, is actually bilateral in nature. Bilateral means not only that the psychologist has duties to the patients but patients also have duties to the psychologist. Such a view is clearly reflected in the APA Ethical Principals of Psychologists and Code of Conduct (Ethics Code) (APA, 2002) which states in Standard 10.10, Terminating Therapy,“Except where precluded by the actions of clients/patients orthird-party payors, prior to termination psychologists provide preterminationcounseling and suggest alternative service providers as appropriate”(p. 1073).This section of the Ethics Code was not only carefully thought through by the committee that revised it, but it was carefully worded. What it means is that while the duty of care falls upon the shoulders of the psychotherapist, patients share the responsibility for the maintenance of the relationship. That is, they have duties and responsibilities, to include contractual obligations, to the psychotherapist. These contractual obligations are usually set forth in the comprehensive informed consent forms that are commonly utilized in professional practices today. These forms outline what the psychotherapist is willing to provide to the patient, the rules for the provision of those services and the patient’s obligations as part of the treatment dyad.
The contractual obligations of the psychotherapist begin with fulfillment of the obligation to pay for the professional services rendered or to make sure that those services are paid for in some fashion. Arguably, fee for service psychotherapists who are not being paid for their professional services can usually terminate treatment because the original remuneration agreement has been violated. The term “usually” is used here because this type of termination does have some limitations. For example, it does not apply to individuals who are in crisis at the time termination is being considered. Under this circumstance, termination would have to be postponed until the crisis was resolved after which the therapist can terminate. Support for this type of termination should be found in the informed consent agreement that outlines reimbursement issues and the contingency that ties the continued provision of services to reimbursement. Interestingly, to do otherwise can create a variety of other ethical dilemmas (Davis 2008, Davis & Younggren, 2009) to include having to decide which of your needy patients gets such consideration or, on the converse, to resent having extended such consideration to too many of your needy patients.
Consistent with the Standard 10(c) of the Ethics Code, the right to terminate also exists when third party payors no longer cover the professional services. A change in coverage, carrier, or benefits represents a change in the treatment contract and psychotherapists are not mandated to maintain treatment when these conditions change. When this occurs what must follow is a renegotiation of the original professional contract or the termination of the professional alliance (Davis, 2008). In addition,a sudden refusal of a third party payor to cover services is grounds for termination and could arguably even negate the necessity for termination sessions. Simply said, under most circumstances psychotherapists have no legal duty to provide free psychological services and can usually terminate those services when payment stops, even if termination is abrupt. Of course, appropriate referral should be provided under these circumstances. If the patient is covered by a managed care company with a list of contractual providers unknown to the practitioner, the referral might entail sending the patient back to their carrier to obtain a list of contracted providers.
Patients also have a duty of compliance with treatment if they expect to get better andto have theirpsychotherapist remain in a relationship with them. This is because in psychotherapy thepsychotherapist becomes a “fiduciary” in the treatment relationship. This type of fiduciary relationship is not simply a financial relationship but is actually much broader in both duty and obligation. It is a special type of relationship that requires that the patient have confidence and trust in the recommendations that are being made by the psychotherapist (Simon & Shuman, 2007). That is not to say that they have to agree with every suggestion the psychotherapist makes but they, at a minimum, have to see value in cooperating with at least some of what is being offered. This begins with regularly attending treatment sessions. A psychotherapist’s duty to treat patients is significantly reduced when theyvoluntarily fail to attend treatment sessions in a consistent fashion.Simply put, this lack of compliance on the part of patients is a violation of their responsibilities to the treatment alliance.
Patients also have a duty to comply with their psychotherapist’s suggestions or to bring up their reluctance to accept such suggestions during the psychotherapy session and attempt to work out their disagreements over treatments with their psychotherapist. A non-complaint patientpresents a serious dilemma since it could be argued that the maintenance of this type of a nonproductive relationship could constitute the provision of unnecessary treatment and even patientexploitation. So, not only is a patient’s commitment to treatment a necessary component of most successful therapies (Ben-Porath, 2004 ; Rudd, 2005; Yeomans, Gutfreund, Selzer, Clarkin, Hull, & Smith, 1994;) the failure to do so on the patient’s part reflects a violation of the patient’s duty to the psychotherapy and necessitates the consideration of modifying the treatment plan or terminating the treatment. When therapeutic movement is at an impasse and progress is not being made because of a lack of compliance on the part of the patient, it falls upon the shoulders of the clinician to address this with the patient, to discuss the patient’s lack of compliance in the treatment dyad and to make the appropriate choices regarding how to move treatment forward. If the patient is still non-compliant the psychotherapist should then consider termination and referral.
Duty can become quite difficult to discharge and confusing to a psychotherapist when that psychotherapist feels that termination and referral are appropriate and the patient objects to this. In this circumstance, the patientcertainly has the right to object and hear why this is necessary, but the patient does not have a right to insist that the treatment continue over the objections of the responsible party – the psychotherapist. While treatment issues must be addressed regularly and treatment plans must be reviewed and understood, when termination and referral are deemed to be appropriate and necessary by the psychotherapist, to do otherwise clearly violates the fiduciary obligation to the patient and is arguably a violation of professional ethics that prohibit the provision of unnecessary treatment sessions (Ethics Code, Standard 10.10(a)). In this circumstance, and when the termination landscape had been carefully viewed by both psychotherapist and patient, the psychotherapist may have the duty to terminate regardless of the view of the patient.
What is the psychotherapist’s obligation to the patient when the patient violates professional boundaries or threatens the psychotherapist? This is a very interesting issue that raises many duty questions. It is arguable both legally and that the duty to treat is ended when the clinicianfeels threatened or professional boundaries are repeatedly violatedethically (Ethics Code, Standard 10.10 (b)). Such conduct is a serious violation of the responsibilities and duties owed to the psychotherapist by the patient and can be of such a serious nature to even raise questions of civil and criminal liability on the part of the patient to the clinician.
The landmark case of Ensworth v. Mullvain (1990)is probably one of the best examples of violations of patient duty in the legal literature. In this case, Heather Ensworth began treating Cynthia Mullvain who became very attached to Dr. Ensworth, anattachment that eventually brought about a decision on Dr. Ensworth’s part to end treatment.Ms. Mullvainobjected to this termination and, as a consequence of this, and secondary to advice that had been given to the Ms. Mullvain by her new psychotherapist, Dr. Ensworth made the mistake of seeing Ms. Mullvain once again to bring about a termination that was more acceptable to her. Ms. Mullvain, however, continued to violate professional boundaries leading to a decision to terminate a second time. This, however, was not acceptable to Ms. Mullvain and brought about a series of more serious boundary violations. Dr. Ensworth eventually obtained a restraining order against Ms. Mullvain but, in spite of the existence of this restraining order, Ms. Mullvain continued to harass Dr. Ensworth. This included the receipt of a letter from Mullvain which stated that Mullvain would repeatedly violate a restraining order, that she would be willing to go to jail, and that she would be willing to do whatever necessary to continue to have contact with Ensworth and to make sure that Ensworth did not forget her. The letter alluded to committing suicide in Ensworth’s presence. (p.449)
Clearly this case reflected treatment that had spun out of control and conduct on the part of the patient that was inconsistent with any expectation of care owed to Mullvain on the part of Ensworth. It teaches how important it is for the clinician to retain control of the treatment process and to stay in touch with what, in a broadly based way, is in the best interests of the patient. In this case, a strong argument could be made that the well-intended decision to re-establish treatment with Ms. Mullvain was not in the best interests of either member of the treatment dyad.
In its written opinion on this case, the court clearly supported Dr. Ensworth on the matter and opined that “Ensworth needed the protection provided by section 527.6 (the restraining order). There was no error in issuing the injunction” In addition, because of the degree of inappropriate conduct on the part of Ms. Mullvain, the judgment against her was affirmed and the costs of the appeal were awarded to Dr. Ensworth.
Cases like Ensworth v. Mullvain are rare but the lessons taught by them are very important. While most impasses should be addressed with the patient as a treatment issue, there are times when, despite one’s best efforts,this cannot be accomplished.Treatment should always be patient centered and clinicians should demonstrate understanding and care. However, when patients do not fulfill theirobligations to the treatment alliance, and attempts to rectify this situation have failed, psychotherapists must be aware of their professional obligations to maintain responsible control over the treatment alliance and to seriously consider the termination of nonproductive relationships. In the extreme, these terminations may have to occur over the objections of the patient, but such objections do not make them inappropriate. In these situations, there are times when the patient’s conduct might preclude any attempt to resolve the impasse in a positive way because the behavior of the patient is either unacceptable, a violation of the patient’s obligations to the psychotherapist, or sometimes even illegal.Terminations under these conditions are arguably in the best interests of both patient and psychotherapist and to do otherwise, and maintaincontact with a patient under these highly adversarial circumstances,is both professionally and personally unwise.
Of particular relevance to this discussion is a commentary written by Gutheil and Brodsky at the end of their book on professional boundaries(2008). These two authors close their discussion of this topic with a number of cogent recommendations for mental health professionals, three of which are very relevant to this discussion. They state, “Good therapy is the best form of risk management” which is followed by, “Always be professional, and always be human.” Finally, they state that, “The responsibility for setting and maintaining boundaries always belongs to the therapist,not the patient” (p. 302). No advice could be more appropriate, accurate or wise.
Three invited commentaries by experts in the field follow this introduction to the topic of patient responsibilities in the professional relationship. These commentaries will address this topic from clinical, ethical, and legal perspectives. Additionally, they will add to this discussion by focusing on additional relevant issues to include the obligation to provide competent services and how a patient’s actions might jeopardize that, the ways these issues might better be addressed by clinicians through the ongoing informed consent process and through the use of a treatment contract, and relevant issues that may arise when working with patients with certain presenting problems and characteristics, among others.
American Psychological Association.(2002). Ethical principles of psychologists and code of conduct.American Psychologist, 57, 1060-1073.
Ben-Porath, D. (2204),Strategies for Securing Commitment to Treatment from Individuals Diagnosed with Borderline Personality Disorder, Journal of Contemporary Psychology, 34(3), 247-263.
Davis, D. (2008). Terminating therapy: A professional guide to ending on a positive note.Hoboken, NJ: John Wiley & Sons.
Davis, D. & Younggren, J. N. (2009), Ethical Competence in Psychotherapy Termination, Professional Psychology, Vol. 40, No. 6, 572-578.
Ensworth v. Mullvain, 224 Cal. App. 3d 1105, 274 Cal.Rptr. 447 (Oct. 1990).
Gutheil, T. G. & Brodsky, A. (2008). Preventing Boundary Violations in Clinical Practice. New York, NY: The Guilford Press.
Hjelt, S. (2007). Termination and Abandonment: Civil and Administrative Law Implications, A paper presented at the annual convention of the American Psychological Association.
Indiana Administrative Code, 868 IAC Section 4.1 e & f.
Miller v. Board of Psychologist Examiners, (Oregon) 00-05, A119529, June 2004.
Rudd, D (2005). The case against no-suicide contracts: The commitment to treatment statement as a practice alternative, The Journal of Clinical Psychology, Vol62(2), 243-251.
Simon, R. I. & Shuman, D. W. (2007). Clinical Manual of Psychaitry and Law. Washington, D.C.:American Psychiatric Publishing.
Sparks v. Hicks 82203 OK. 20,912 P.2d 331; 1996
Yeomans, F.E., Gutfreund, J., Selzer, M.A., Clarkin, J.F., Hull, J.W, & Smith, T.E. (1994). Factors related to drop-outs by borderline patients: Treatment contract and therapeutic alliance. The Journal of Psychotherapy Practice and Research, 3, 16-24.
Younggren, J. N.& Gottlieb, M. C. (2008). Termination and abandonment: History, risk and risk management. Professional Psychology: Research and Practice, 39(5), 498-504.
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Psychotherapist Variables Affecting Termination
Mary Alice Fisher
Center for Ethical Practice, Charlottesville, Virginia
Younggren has provided important ethical and legal information that should dispel some of the misunderstandings about termination. It is not clear how such misunderstandings arose in the first place. If their origins lie in psychotherapists’ clinical training and early supervision experiences, then ultimately the solutions may lie there (Murdock, Edwards, & Murdock, 2010).
But regardless of their origins, it is hard to understand why the misunderstandings have persisted. Practicing psychologists have long had access to detailed advice about managing difficult terminations and about differentiating between psychotherapist-initiated termination and abandonment. (For recent examples see Davis & Younggren, 2009; Shefet & Curtis, 2005; Vasquez, Bingham & Barnett, 2008; Younggren & Gottlieb, 2008). This commentary will focus on possible reasons why such resources have not ended the confusion.
Termination is a complex process that is affected by both patient and psychotherapist variables. Psychotherapists tend to blame problematic or premature terminations on the patient rather than on themselves (Murdock et al., 2010). Undoubtedly, certain categories of patients may complicate the termination process. But perhaps, in focusing on patient variables, we have paid too little attention to psychotherapist variables (Behnke, 2009; Boyer & Hoffman, 1993).
It is recommended that psychologists initiate a discussion of termination at three different stages of psychotherapy: (1) at intake; (2) during treatment, in anticipation of termination; and (3) when the ending actually occurs (Vasquez et al., 2008). The quality of such discussions might depend to some degree on the patient, and on the nature of the patient-psychotherapist relationship. But whether such discussions are actually initiated at each of these stages, and whether they are introduced in a manner conducive to effective interactions, would depend on psychotherapist variables, not patient variables.
Intake is the appropriate time for a psychotherapist to introduce discussion of the patient duties that Younggren describes. In fact, talking about termination during the initial informed consent conversation may be the most important thing one can do to reduce the likelihood of later difficulties with closure (Younggren & Gottlieb, 2008). Written intake materials can provide information about when the psychotherapist might initiate termination, such as “when feasibility or quality of service is compromised; services are not benefitting or harming the client; or when client conduct is inconsistent with the safety or integrity of the work” (Davis & Younggren, 2009, p. 576). Davis (2008) even provides sample paragraphs that psychotherapists can use to describe both their termination policy and patient responsibilities. Yet, reportedly, few psychotherapists include the topic of termination in their informed consent documents or discuss it at intake (Davis & Younggren, 2009).
Failure to initiate that discussion may result as much from a general tendency to shortcut the informed consent conversation as from avoidance of the topic of termination in particular. Obtaining the patient’s informed consent includes (1) providing clear information about what the rules will be and (2) obtaining the informed patient’s consent to accept the conditions described. Many psychotherapists are either reluctant to begin a therapy relationship that way, or are confused about the specifics of the process (Barnett, Wise, Johnson-Greene & Bucky, 2007; Somberg, Stone, & Claiborn, 1993). The APA Ethics Code (Standard 10.01, Informed Consent to Therapy) lists numerous things that psychotherapists are required to inform prospective patients about; and HIPAA has expanded the list. If the item of “termination” is simply added to these ethically- and legally-required intake topics, it is likely to go unnoticed on a crowded handout. Yet, Younggren suggests that patient duties about termination should be emphasized, not ignored.
Once therapy begins, numerous psychotherapist factors might affect whether termination is discussed. Martin & Schurtman (1985) suggested that psychotherapists might experience anxiety about termination because of such things as overconcern about whether it will be a “successful” termination; response to the patient’s termination anxiety; or personal loss at the ending of what has been a meaningful therapy relationship. Others found that dissatisfaction with the results of treatment may be the most frequent psychotherapist hindrance to successful terminations, perhaps because the pending termination brings to the surface feelings of defeat and incompetency about the case (Brady, Guy, Poelstra & Brown, 1996). Conscious or not, such emotions might make it less likely that a psychotherapist would follow the advice to make reference to termination during the therapy or to raise issues of non-payment or non-compliance that might lead to the need to end the relationship. Finally, reluctance to terminate can arise from practical concerns (e.g., financial worries; dwindling caseload) or from psychotherapist fears that the patient will be angry, retaliate, or file a complaint.
Regardless of the underlying reasons, among the most visible signs of psychotherapist discomfort with termination may be the tendency to prolong the therapy relationship inappropriately. Lambert (2000) suggested that clinicians tend to defend against the awareness that a patient is failing to progress. According to Stewart and Chambless (2008), 36 percent of psychotherapists in private practice continue to treat patients who are not improving. Earlier research suggested that, even when the patient showed little or no progress, more than half of psychotherapists tended to continue doing “more of the same” rather than revising the treatment plan or raising the possibility of referring the patient to another provider (Kendall, Kipnis & Otto-Salaj, 1992). Yet, as Younggren notes, this is in direct contradiction to APA Ethical Standards. Although therapy is a bilateral relationship in which patients share responsibility about the termination process, psychotherapists must nevertheless take responsibility for unilaterally ending the relationship in certain circumstances.
The fact that it is sometimes unethical for a psychologist not to end a therapy relationship makes it logically impossible to equate every psychotherapist-initiated termination with an unethical “abandonment” of the patient. Yet psychotherapists who are dealing with unresolved issues of loss or abandonment might so experience it. Boyer & Hoffman (1993) found a correlation between the psychotherapist’s loss history and feelings of anxiety and depression during termination. A psychotherapist with unresolved feelings around loss may fail to be aware when termination is appropriate, or “may respond to the termination phase in a manner that is detrimental not only to ending the therapy but also to progress made up to that point” (p. 276). This suggests that a belated or inept ending can have an “undoing” effect on the progress that was accomplished during the therapy.
Self-Reflection and Consultation
Psychotherapists who are uncomfortable with termination for any reason are less likely to initiate sufficient conversation about it at any stage of the relationship. Davis and Younggren (2009) suggest that a psychotherapist’s competence in conducting a well-executed termination not only requires a strong ethical foundation and good clinical skills, but also taps such things as self-reflection and relationship capabilities.
Questions such as the following might help psychotherapists recognize when they are doing things that unnecessarily complicate or hinder the termination process:
1. At intake, do I discuss patient duties such as responsibility for participating in mutual goal-setting, monitoring progress, or planning for termination? If not, why not?
2. Do my written informed consent documents and patient contracts mention patient responsibilities, including those related to termination? If not, why not?
3. Do I re-open the conversation about termination if the contract needs to change (e.g., patient is making no progress; third party reimbursement is ending)? If not, why not?
4. Do I raise issues of nonpayment or noncompliance when they first arise, and consider the possible need for termination? If not, why not?
5. Do I dread ending particular therapy relationships? If so, which ones, and why?
6. As therapy relationships end, do I spend sufficient time exploring patients’ issues related to the ending, including negative as well as positive feelings about the therapy? If not, why not?
7. Do I remain aware of my possible role in complicating a termination, instead of just blaming the problems on patient variables? If not, why not?
8. Do I obtain consultation in cases involving difficult terminations? If not, why not?
Psychotherapists can use such self-reflection to remain aware of their possible need for ongoing consultation when facing difficult terminations. Psychotherapists who are unwilling to engage in self-examination will not likely benefit from the available resources, even when they come in the form of helpful ethical and legal recommendations such as those provided by Younggren. Finally, we must count on clinical training programs to be alert to issues related to both informed consent and termination, and to use classroom and supervision experiences to monitor trainees’ competence with both beginnings and endings.
Barnett, J.E., Wise, E.H., Johnson-Greene, D., & Bucky, S.F. (2007). Informed consent: Too much of a good thing or not enough? Professional Psychology: Research and Practice, 38, 179-186.
Behnke, S. (2009). Termination and abandonment: A key ethical distinction. Monitor on Psychology 40 (8), 70.
Boyer, S.P. & Hoffman, M.A. (1993) Counselor affective reactions to termination: Impact of counselor loss history and perceived client sensitivity to loss. Journal of Counseling Psychology, 40, 271-277.
Brady, J.L., Guy, J.D., Poelstra, P.L. & Brown, C.K. (1996). Difficult good-byes: A national survey of therapists’ hindrances to successful terminations. Psychotherapy in Private Practice, 14, 65-76.
Davis, D.D. (2008). Terminating therapy: A professional guide to ending on a positive note. Hoboken, N.J., John Wiley & Sons.
Davis, D.D. & Younggren, J.N. (2009). Ethical competence in psychotherapy termination. Professional Psychology: Research and Practice, 40, 572-578. DOI: 10.1037/a0017699
Lambert, M. J. (2000, August). Promise and problems of evaluating clinical practice in everyday clinical settings. In J. A. Carter & G. K. Lampropoulos (Chairs), Reprioritizing the role of science in the scientist-practitioner model in psychotherapy. Symposium conducted at the 108th Annual Convention of the American Psychological Association,Washington, DC.
Martin, E.S. & Schurtman, R. (1985). Termination anxiety as it affects the therapist. Psychotherapy, 22, 92-96.
Murdock, N.L., Edwards, C. & Murdock, T.B. (2010). Therapists’ attributions for client premature termination: Are they self-serving? Psychotherapy: Theory, Research, Practice, Training, 47, 221-234. DOI: 10.1037/a0019786
Shefet, O.M. & Curtis, R.C. (2005). Guidelines for terminating psychotherapy. In: G.P. Koocher, J.C. Norcross & S. S. Hill III (Eds). Psychologists’ Desk Reference, 2nd Edition, pp. 354-359. New York, Oxford University Press.
Somberg, D.R., Stone, G.L., & Claiborn, C.D. (1993). Informed consent: Therapists’ beliefs and practices. Professional Psychology: Research and Practice, 24, 153-159.
Stewart, R.E. & Chambless, D.L.(2008). Treatment failures in private practice: How do psychologists proceed? Professional Psychology: Research and Practice, 39, 176-181. DOI: 10.1037/0735-7028.39.2.176
Vasquez, J.T., Bingham, R.P. & Barnett, J.E. (2008). Psychotherapy termination: Clinical and ethical responsibilities. Journal of Clinical Psychology: In Session, 64, 653-665. DOI: 10.1002/jclp.20478
Younggren, J.N. & Gottlieb, M.C. (2008). Termination and abandonment: History, risk, and risk management. Professional Psychology: Research and Practice, 39, 498-504. DOI: 10.1037/0735-7028.39.5.498
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On Duty, Power and Informed Consent in Relation to Termination in Psychotherapy
William E. Foote
Department of Psychology, University of New Mexico
In previous articles, Jeffrey Younggren has dealt with concerns about the pitfalls of termination in psychotherapy (Davis & Younggren, 2009; Younggren & Gottlieb, 2009). I would agree that concern about termination in psychotherapy is well taken. Research on the topic indicates that about 50% of patients drop out of treatment, often with no warning to the psychotherapist about their intentions (Quintana, 1993; Rainer & Campbell, 2001; Renk& Dinger, 2002; Wiersbicki&Pekarik, 1993). In his current paper, Younggren (this issue) places an emphasis on the client’s duties that is a departure from the common thinking of many psychotherapists. The traditional focus has been to focus on the duties of the psychotherapist and to ignore the role that the client may play in severing the therapeutic connection.
In the current paper, I will examine the validity of Younggren’s designation of the client as co-partner in the termination context. Then, I will consider the function of informed consent in highlighting the client’s responsibilities relating to termination. My contribution will end with some specific practice suggestions regarding informed consent and termination
Is The Client An Equal Partner In Therapeutic Decision Making?
Younggren argues that psychologists have long neglected the client’s responsibilities in the therapeutic relationship. He states: “Duty, in the case of a psychotherapeutic relationship, is actually bilateral in nature. Bilateral means not only that the psychologist has duties to the patients but patients also have duties to the psychologist” (Younggren, 2011, p XX). Although the point that Younggren makes is appropriate—that clients play a role in decision making about psychotherapy, I will argue that the client’s responsibility is not as great as Younggren contends, and that the psychologist’s responsibilities far outweigh those of the client. In order to discuss this issue, I will begin by reviewing the concept of “duty” as the law sees it. Next, I will discuss characteristics of psychotherapy clients that make them vulnerable and less powerful than psychotherapists, and then examine how psychotherapists are rendered more powerful in the therapeutic context.
The legal Concept of “Duty”
The concept of a legal duty has long been a cornerstone of civil law. Legal scholar Dean Prosser noted: “A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another” (Prosser & Keaton 1984, p. 356). For professionals, the very act of donning a professional title triggers a host of duties toward individuals with whom the psychotherapist acts within a professional role. Some even argue that for psychotherapists there is a “fiduciary duty”, a specific role in which the “fiduciary accepts the trust and confidence of another party, the ‘entrustor,’ and agrees to act only in the entrustor’s best interest” (Bisbing, Jorgerson& Sutherland, 1995, p. 4). Indeed, some jurisdictions have determined that psychotherapists have a fiduciary duty to their clients as a matter of law (e.g., Garcia v. Coffman, 1997). A psychotherapist faces serious consequences in malpractice liability, licensing law violations and even criminal sanctions for breaching these duties.
To my knowledge, nowhere in the law is such a duty imposed upon the client. In fact, in some legal contexts, such as psychhotherapy sexual misconduct statutes, the client is assumed to lack the capacity to consent to a sexual relationship with the psychotherapist.
Client Characteristics that Render them Unequal Partners
Individuals who present themselves at the psychotherapist’s office are vulnerable. Commentators have defined four elements that contribute to this vulnerability: “(1) the entrusting party’s presenting problem, (2) the entrusting party’s revelation of confidential information, (3) the entrusting party’s idealization of the psychotherapist, and, (4) the stress resulting from the treatment process or litigation” (Guthiel, Jorgerson, & Sutherland, 1992). All of these vulnerabilities thus render the client less capable in “contracting” with the psychotherapist about termination and with making informed decisions about termination.
Aspects of Psychotherapists that Make them More Powerful
As noted earlier, the psychotherapist possesses advanced degrees, specific training, and a professional license that tilt the playing field in the professional’s direction. Therapeutic systems differ in respect to the extent that the idealization of the psychotherapist is a focus of the treatment. However, most perspectives acknowledge that clients sometimes distort their view of the psychotherapist through a phenomenon of “transference” or “overgeneralization cognitive distortions” (see Rabinovich&Kacen, 2009). It has long been observed that interventions offered by the psychotherapist do not differ that much from those given to the client by family and friends (e.g., Schofield, 1964). Indeed, it is the enhanced credibility and authority of the psychotherapist that gives those interventions the potency to serve as agents of behavioral change.
In addition, the psychotherapist has legal powers that enhance the imbalance. Psychologists and psychiatrists in many jurisdictions have the legal authority to hospitalize the client. And in contrast to the views of ordinary folk, the professional opinions of mental health professionals are allowed into evidence in court (Federal Rule of Evidence 702).
The Role of Informed Consent in Termination
Ethical standards require psychotherapists to provide appropriate informed consent at the onset of a professional relationship (American Psychological Association, 2002, Standard 10.01). This informed consent is not just to provide cover for psychologists in case of complaints, but to give effect to the ethical principal of autonomy. With sufficient information and understanding in the context of a fully voluntary act, the client is able to make a free decision about entering into and continuing treatment.
Younggren argues that it is this informed consent process that provides the basis for the client’s equal role as a partner in the therapeutic and termination process, and effectively serves as a contract in which the client becomes obligated to do certain things. From a formal and perhaps legal perspective, having the client sign a written informed consent document or provide verbal assent to a orally presented informed consent constitutes a contract. However, unless the client is a lawyer, I would contend that, minutes after signing even a written informed consent document, the average psychotherapy client would not be aware of acquired contractual obligations. Research suggests that a substantial proportion of psychotherapy clients do not understand the fundamentals of the average informed consent (e.g., Arscott, Dagnan&Kroese, 1999). This is almost certainly the case for those at highest risk for premature termination. Those who drop out are more likely to belong to a racial minority, to be of low income, and to have a lower educational level(Wierzbicki&Pekarik, 1993), may have more severe diagnoses (Hilsenroth, Holdwick, Castlebury, &Blais, 1998) or may have had more difficult childhoods (Self, Oates, Pinnock-Hamilton, & Leach, 2005).
Conclusions and Recommendations
So, does this informed consent process counterbalance the responsibilities of the psychologist? I would argue that it does not, and further, that the psychologist’s duties still far outweigh those of the client throughout the psychotherapy process.
At best, the informed consent process can provide a road map for the client to navigate the journey of psychotherapy. This map necessarily includes a discussion of how to take the off-ramp. In regards to this informative consent process, I would offer some suggestions.
First, the psychotherapist should be aware of the impact of the power imbalance with the client during the informed consent process. Especially at that moment, when the client may be anxious, confused and dependent, the client’s capacity for asserting rights and grasping responsibilities may be reduced. This may require that the psychotherapist repeat some elements of the informed consent later in treatment, especially when a client makes comments or engages in behavior (such as not paying bills or attending scheduled sessions) that indicate a desire to stop treatment.
Second, the language concerning termination should be even more understandable than in the rest of the informed consent document. The sample informed consent that Davis and Younggren (2009) provide covers the necessary elements, although an analysis indicates that the Flesch-Kincaid reading level (Flesch, 1973; Paasche-Orlow, Taylor, &Brancati, 2003) for this paragraph is above the 12thgrade, which may be too high for many clients, especially those at highest risk for premature termination.
Third, as Vasquez, Bingham, and Barnett (2008) suggest, the informed consent should include specific information about what the client can do if the psychotherapist suddenly becomes unavailable because of sickness or death. In addition, the informed consent document should be printed and a copy should be provided to the client for record keeping and reference in case the therapist becomes incapacitated.
Fourth, the informed consent process should emphasize the importance of the client’s role in termination. I agree with Younggren (this volume) that the client has many real responsibilities in working with the psychotherapist in the therapeutic endeavor. To highlight the importance of these responsibilities, the psychotherapist should take time to list the reasons that the patient might want to end treatment, the reasons the psychotherapist might want to end treatment and how that task would be best accomplished. Rendering the client’s responsibilities as a bullet list should trigger a discussion of those points and would alert the client to essential responsibilities in the termination process. In the context of the disparate power inherent in the psychotherapist-client relationship, this emphasis is critical so as to open the door for negotiation in circumstances where the client’s financial status has changed or when the client feels as though psychotherapy is not working (Hunsley, Aubrey, Verstervelt, & Vito, 1999). This emphasis is more than just executing a contract, it is establishing the therapeutic relationship as a shared responsibility.
Arscott , K., Dagnan, D., &Kroese, B. S. (1999) Assessing the ability of people with a learning disability to give informed consent to treatment. Psychological Medicine 29, 1367-1375.
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Self, R., Oates, P., Pinnock-Hamilton, T., & Leach, C. (2005).The relationship between social deprivation and unilateral termination (attrition) from psychotherapy at various stages of the health care pathway.Psychology and Psychotherapy: Theory, Research and Practice, 78(1), 95-111. doi:10.1348/147608305X39491
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Psychotherapy Termination: Duty is a Two-Way Street
Honorable Stephen Hjelt, J.D.
I practiced law for 17 years and was a judge for the next twenty. By law school training and experience I am well versed and comfortable with legal analysis and most comfortable using the language of the law. It is easiest for me to speak the jargon of the law – duty of care, breach of duty, damages and contributory negligence. Younggren’s lead article (this issue) is important because it discusses the notion of “duty” with a decidedly legal meaning to it. But the “duty” he focuses on is the duty of the patient and its implications for professionally appropriate mental health services. This is a topic that most often receives scant attention when a psychotherapist’s conduct is being judged in a malpractice or licensing board case.
A number of years ago I sat in a room with approximately 400 psychologists at a program at the American Psychological Association (APA) convention in Washington D.C. It was one of the “ethical dilemma” sessions and had a number of different vignettes meant to highlight problems that a typical practitioner might encounter in his or her practice. One of the hypothetical vignettes posed the following question: My client just threatened my life. How many further sessions are required to effectuate a legally and ethically appropriate termination? After listening to a succession of psychologists in the audience weigh in with answers such as “at least two;” “five” or “you cannot terminate therapy against a patient’s wishes” I felt compelled to raise my hand and say words to the effect…”folks, I’m not a psychologist although I’ve been an APA member for a long time. I’m a judge in a court that hears cases when a Board of Psychology seeks to sanction a psychologist’s license due to ethical and standard of care violations. Let me humbly suggest that the answer is…ZERO.”
We must keep in mind that the correct answer to most ethical and legal dilemma questions is heavily fact specific. But on the face of the sparse facts presented in the APA hypothetical, the correct answer is most assuredly…ZERO. Younggren’s lead article does an excellent job of elucidating why. In most professional discourse, the two words in this lead article’s title (Patients’ Responsibilities) go unnoticed. And yet, they are crucial to understanding the often complex and challenging relationship between psychotherapist and patient. They are crucial, as well, in evaluating (passing judgment, from a legal perspective) on the professional conduct of the mental health professional. That is, in truth, what judges and juries do. We pass judgment on the clinical judgments made by psychologists.
Some of the confusion on the part of psychologists stems from the multi-layered concept of the fiduciary. Certain professions, because of the special nature of the relationship created, owe a very high duty to the client/patient. It is a duty to put the needs of the client/patient before the needs of the professional. Most fiduciaries start out as “contractual fiduciaries.” Lawyers and accountants are classic examples of a contractual fiduciary. What complicates understanding and analysis is the fact that healers (physicians and psychologists) become moral fiduciaries as well. Healers are charged with the duty stemming from the Hippocratic Oath to “First do no harm.” They are also charged with the sometimes impossible task of alleviating human suffering.
Fiduciaries owe a very high duty of care to their clients/patients. However, that duty can be compromised and extinguished by the conduct of the client/patient. Not only can a client/patient’s behavior constitute a breach of the contract of engagement but it can also damage and destroy the trust and confidence that is the core prerequisite of successful psychotherapy. I am at a loss to understand why psychologists fail to comprehend this. It has perplexed me for quite some time.
I believe that one of the reasons for the confused view that psychotherapists have of termination stems from a popular cultural view of what a mental health professional does. This popular world-view sees the psychotherapist as a Jedi Warrior fighting an epic battle with the Darth Vader of mental illness. The view is fueled in part by the lack of scientific and medical literacy that characterizes our society. This view is also fueled by a profession that at least occasionally has oversold and overhyped the health care services it provides. This view is naïve, grandiose, and incredibly misplaced. A psychologist, just like a physician, is not a guarantor of a result. Nor is a particular psychologist, even with the best education, training, and clinical experience necessarily the right psychologist for every patient. There needs to be a good “fit.” If there isn’t, the odds are great that progress in psychotherapy will be elusive. This is avoidable if a discussion of termination of treatment is part of the initial informed consent. Informed consent can be condensed into three words: what, how, and why. A prudent psychologist must ask at the outset: “As we embark on this professional relationship, what are WE seeking to accomplish, why, and how will we seek to accomplish the goal?” Inherent in a properly conducted informed consent is the notion of goal which logically includes the termination or end of the professional engagement.
Many who come to psychotherapy bring with them this fantastical notion that the psychotherapist will do some magic TO them. It is incumbent on the psychotherapist to instill from the first meeting the notion that psychotherapy is collaborative; that a patient/client has a responsibility of honesty and effort. This all begins with an informed consent that is not simply a signature on a form but rather the beginning of a dialogue. In 20 years of hearing cases filed by licensing boards against mental health professionals, the failure to terminate psychotherapy, when called for, has been a recurring issue. Almost all of them had antecedents that began with an absent or poorly done informed consent, a failure to maintain boundaries, and a psychotherapist practicing beyond the scope of his or her expertise. Time and time again, I found myself asking “Who was in charge here?” The answer was either no one or the patient. In either case, it was the wrong answer.
Younggren is correct in pointing out that a psychotherapist can properly terminate treatment if he or she is no longer being paid, assuming the patient/client is not in crisis and appropriate referral has been made. The law does not demand that a psychologist work without the expectation of payment for services rendered.But the broader point is that termination of psychotherapy is not only appropriate but required by the standard of care when either the goals of treatment have been met or when a psychotherapist determines that there are impediments to a successful outcome that cannot be overcome. The most telling impediment is non-compliance on the part of the patient. There is a cold hard truth often ignored by the “helping” professions. It is this: sometimes YOU cannot “fix” or heal everyone…you cannot put Humpty Dumpty back together again. Perhaps someone else can, in which case it is incumbent to transition that patient to someone who may be a better fit. Sometimes no one can “fix” or heal a patient; no one can put Humpty Dumpty back together again. If that be the case, you are engaged in acts of futility which translate into the provision of unnecessary treatment sessions. You must always be humane but you cannot hide from the necessary decision to terminate treatment because you may displease the patient or hurt their feelings.
I have come to view the termination phase of psychotherapy as akin to a high risk delivery for an obstetrician or landing a jet in stormy weather. These tasks are not beyond the ability of a specialist. But they require preparation, concentration, and skill. It is no different for a psychologist. In the last ten years, a new descriptive term has been introduced into our everyday parlance, thanks to the ongoing conflicts in Iraq and Afghanistan. The term is IED, or improvised explosive device. When a psychologist does not terminate a psychotherapy relationship that has failed, that psychologist faces the possibility of an encounter with an IED…in the case of such a psychologist, he or she has had a hand in placing the explosive on the side of the psychotherapy road.
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This article and its accompanying commentaries were published as:
Younggren, J. N., Fisher, M. A., Foote, W. E., & Hjelt, S. E. (2011). A legal and ethical review of patient responsibilities and psychotherapist duties. Professional Psychology: Research and Practice, 42(2), 160-168. doi:10.1037/a0023142
This HTML version may not exactly replicate the final version as published in the APA journal. It is not the copy of record. The published version is available in Professional Psychology: Research and Practice. © 2011, American Psychological Association.