When negligence results in injury or loss to the client
A fundamental aspect of the ethical practice of psychology involves clearly defining the rights and responsibilities of both the client and the psychologist as they engage in the collaborative task of therapy. These guidelines permeate all phases of the treatment relationship and represent issues paramount for protecting all parties and serving the best interest of the client. The topic encompasses both moral and legal issues, including informed consent, record keeping, involuntary hospitalization, malpractice, confidentiality, and the duty to warn and protect.
Malpractice is “the failure to render professional services or to exercise the degree of skill that is ordinarily expected of other professionals in a similar situation. It refers to a legal concept involving negligence that results in injury or loss to the client” (Corey, Corey & Callahan, 2002, p. 181). As such, the definition remains somewhat ambiguous regarding the precise and specific behavior that represents reasonable or expected standard of care.
According to Anderson (as cited in Corey, Corey & Callahan, 2002, p. 181), Malpractice is generally limited to six kinds of situations:
- the procedure used by the practitioner was not within the realm of accepted professional practice
- the practitioner employed a technique that he or she was not trained to use
- the professional did not use a procedure that would have been more helpful
- the therapist failed to warn others about and protect them from a violent client
- informed consent to treatment was not obtained or not documented
- the professional did not explain the possible consequences of treatment
Others (Voskanian, n.d.) categorize specific forms of psychiatric malpractice differently, including: (1) Failure to obtain information; (2) Failure to appropriately diagnose; (3) Failure to treat; (4) Negligent use of psycho-pharmacologic agents or of psychotherapy; (5) Negligent failure to prevent patients from harming themselves or others; (6) Sexual misconduct; (7) Failure to obtain informed consent; (8) Violations of civil rights: false imprisonment/restraints and seclusion; (9) Breach of confidentiality; (10) Abandonment, and (11) Negligence in supervision.
Because malpractice is a legal term, cases involving the aforementioned issues must also contain each of the following legal elements in order to technically be considered suitable for malpractice litigation:
- There must exist a professional relationship between therapist and patient
- The therapist must have breached the duty of reasonable care in the context of the relationship
- Injury or harm must have occurred (including emotional harm)
- A causal link must be established between the negligence and the injury (Deegan, 1999).
Additionally, factors of foreseeability and reasonable care, based on the clinical assessment and judgments of the therapist, determine the degree of liability of the therapist
In light of the malpractice criteria with its broad possibilities for interpretation, the ambiguity involved in the assessment of many psychological conditions and the variability among clients and their reactions to therapy, some therapists may be reluctant to attempt untraditional, innovative or risky (albeit powerful and effective) therapeutic interventions for fear of malpractice allegations. Furthermore, the systems or environments within which some therapists practice may restrict the intervention choices based on legal concerns.
In the words of one practicing counselor, “Patient resistance, confrontation and even what might be considered manipulation, has been a well-documented, normal aspect of the therapeutic process since Freud. It has been seen as representing a particular level of progress and an essential element of change. However, some therapists shy away from these processes for fear of being judged by the patient as causing harm and thus vulnerable to a lawsuit” (DiBiasi, F., personal communication, December 27, 2014). As with many ethical issues, while some cases of negligence denote clear and obvious violations, in other situations the interpretation of what behavior represents acting in the best interest of a client can be controversial and ambiguous.
Corey, G., Corey, M. and Callahan, P. (2002). Issues and ethics in the helping professions (6th ed.). Pacific Grove, CA: Brooks/Cole Publishing Company.
Deegan, P. E. (1999). What is psychiatric malpractice? http://www.power2u.org/legal/malpractice.html.
Voskanian, P. H. (n.d.). Psychiatric malpractice and standards of care. http://www.forensic-psychiatrist.com/mal.html.