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A Clinician's Guide to Legal Issues in PsychotherapyReview - A Clinician's Guide to Legal Issues in Psychotherapy
by William H. Reid
Zeig, Tucker & Theisen, 1999
Review by Brian Butler, J.D., Ph.D.
Sep 18th 2000 (Volume 4, Issue 38)

            The conflict between legal methods of doing business and the aims of other professional disciplines can be a daunting morass for the individual trying to avoid a legal battle.  Further, the imposition of the relatively inflexible and blunt instruments followed dogmatically and blindly in legal thinking upon another discipline has the potential to wreak havoc upon the proper provision of the non-legal duties required.  This is nowhere more true than in the conflict between Psychotherapy and Law.  William Reid’s A Clinician’s Guide to Legal Issues in Psychotherapy enters this battlefield and purports to guide the psychotherapist away from legal danger in a little under two-hundred pages.  Included among other topics in the guide are sections on clinical standards of care, consent, confidentiality and, importantly, model forms used in clinical and forensic practice.  All is capped off with a glossary of legal terms.  The prose is clear and simple, the sections are admirably brief and legal jargon is kept to a minimum.  But can such a guide written to inform the psychotherapist so as to protect himself or herself from the grasping fingers of the legal profession be effective presented in such a compact volume?  For instance, can the concept of standard of care, as understood in legal practice, be explained to the clinician in a chapter that is a mere twelve pages long? 

            Like many areas where the professional ideals of two divergent groups collide, the domain described as “standard of care” is a battleground where conflicting purposes must be somehow arranged.  Reid, writing to keep the clinician as safe as possible from unwillingly entering into this battle within the legal practitioner’s territory without being well-prepared, outlines the concept of standard of care with a brevity characteristic of all the sections in the Guide.  Not only that, but he analyzes multiple issues that arise within the legal concept of standard of care.  For instance, one major question is when to realize that a duty of care has arisen.  As Reid puts it even a “simple telephone conversation or the making of an appointment” might be enough [31].  Situations from declining the patient before any therapist-patient relationship has been formed, to strategies on how to avoid “abandoning” a client after a therapist-patient relationship has been established, are investigated and strategies to help avoid legal liability are suggested.  One issue rightly emphasized is the varying duties and levels of care that arise from different professional relationships between the client and the clinician due to such seemingly extraneous factors as employment status of the psychiatric professional.  Further sections explain with minimal legal jargon that standards of care are defined by what reasonable practitioners in the same relationship would do, not by the individual practitioner’s own background.  The existence of such an “objective” standard of evaluation is very important to be aware of.  The fact that such a standard not only includes the required level of care and expertise but also requires the “recognition of professional limitations [38]” is also rightly emphasized.

            The discussion of adverse and side effects of treatment is even more concise, encompassing a mere four pages.  After distinguishing adverse effects - which are sometimes to be expected and tolerated as arising from treatment when the aim is a result that is important enough to risk the effect - from side effects, Reid lays out a four-part recommendation so the psychoanalyst will be “meeting the standard for predicting, preventing, or controlling adverse effects, and/or mitigating their impact [p. 132].”  The list offered reads: (1) proper recommendation; (2) adequately informed consent; (3) appropriate prescribing and/or application of the treatment; (4) appropriate monitoring and follow-up [p. 132].”  Such a list has the appearance of being both mostly obvious as well as too brief to be of help.  Is such an appearance true?  Is such brevity helpful, or should more than a mere four pages be set aside for such sticky legal issues?

            Actually, brevity here is a clear virtue.  Reid’s aim is to help the psychotherapist avoid legal controversies.  With such a purpose in mind a more nuanced and lengthy analysis of legal case law or statutes would be counter-productive.  The need for subtle analysis would signal that the subject matter had strayed away from legally safe territory into areas where issues are still at least somewhat up for grabs.  Anywhere where the issues are up for grabs is unsafe for the clinician to tread, and therefore territory that the professional trying to avoid involvement in legal procedures does not want to come near.  Furthermore, due to the imprecise nature of legal processes and practices no amount of analysis, no matter how accurate or complete, will guarantee complete safety.  Therefore, the brevity Reid accomplishes in his prose is fully warranted and the issues are properly treated at such a length.

            More important than the individual chapter topics is a recurring message that is first raised in a section entitled “Document, Document, Document [p. 12].” In this section effective strategies are listed in order to (no surprise) document the decision making procedures and reasoning processes utilized while attempting to properly care for the patient.  The recurring message, though never quite stated as such, is “make sure to force all the parties to tell your story in your own terms.” As Reid does put it; “Whoever started the rumor in professional circles that “if you don’t write it down, they can’t hang you with it” was dead wrong.  In far more cases than not, complete, legible notes help clinicians whose care is questioned.  Skimpy notes imply skimpy care [12].”  This is very important advice.  Once in court the contest will very often come down to a question as to whose story of the event in question is accepted as true.  Effective and thorough documentation helps ensure that the clinician’s perspective is properly acknowledged and weighed.  Decisions that were well-reasoned and adequate at the time they were made, given the unavoidable uncertainties and cost of further information, can appear questionable from a perspective informed by the knowledge of later undesirable results.  Unfortunately such bad results may result even in the context of the most informed and competent decisions.  A biased analysis due to analyzing past decisions from latter consequences has been labeled “hindsight bias.”  Juries and judges have been found to fall into this form of mistaken or biased interpretation.  The unfortunate result combined with the phenomenon of hindsight bias can effectively color an objectively  reasonable decision made under adequate information to the point that from a later view the decision might look irresponsible or negligent.  The only strategy effective in combating such a bias is proper and admissible documentation made at the time of the decision.  Having this documentation available will ensure that the results involved will be properly balanced by a picture of diligence and responsibility under the circumstances.  This pro-active defensive strategy ensures that the story told in court by the adversary grapples with the uncertainty of future outcomes as well as the diligent sorting out of reasons that the psychotherapist went through in choosing between care options.

            Such a pro-active defensive strategy also helps ensure good clinical practice by making the decision process more explicit as well.  Not only will the story-telling abilities of the opposing side be constrained by the documentation but just the availability of decent documentation signals diligence.  A diligent professional cannot ever be certain to avoid unwanted legal controversy.  But through being aware of legal trouble spots and properly documenting decisions as they are made, the clinician can make his or her chances of avoiding such an occurrence much better.   A Clinician’s Guide threads an unavoidable but perilous trail between overly technical legal analysis and the obvious or banal.  The brevity of the book might seem to imply that the latter fault might have not been avoided.  However, neither fault is found.  Furthermore, the book succeeds admirably on its own terms.  The expressed point of the work is avoidance of suits.  A clinician that follows the advice contained in the book will certainly avoid more suits than one who thinks, for example, that no documentation is good documentation. 

           

Brian E. Butler, J.D., Ph.D., Assistant Professor of Philosophy, The University of North Carolina at Asheville.

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