Supervision vs. Consultation: what you need to know
The following article was authored by myself and A. Steven Frankel, Ph.D., J.D. It appeared in a slightly shorter format in the July/August 2007 issue of The California Psychologist, the newsletter of the California Psychological Association.
In this article we will discuss an oft-overlooked topic: understanding the difference between supervision and consultation.
The processes of clinical supervision and consultation are integral parts of training, to which clinicians return repeatedly throughout their careers. The historical dedication to consultation and supervision derives from a number of factors, including a profession-wide endorsement of consultation, continuing training and an awareness of ethics. Ongoing consultation with colleagues is important for all clinicians. It allows clinicians to access and maintain the standard of care and to resolve challenges to treatment. Because psychotherapy is most often a private matter, confidentiality places certain restrictions on the extent to which clinicians can openly consult with each other. For obvious reasons, clinicians do not publicly post details of a treatment relationship to solicit feedback. Rather, they tend to fall back on the model under which they were initially trained.
Supervision:
The predominant training model for clinicians is that of supervision, whereby a student discusses cases on an in-depth basis with a supervisor. The supervisor becomes acquainted with all of the critical information about the case, instructs the student on how to conduct the intervention and carefully monitors the progress of the patient/client and student. In this sort of relationship it is vitally important that the supervisor know as much as possible about the case because the supervisor is, by extension, the one providing the treatment. As a result, supervisors may be liable for acts or omissions on the part of their supervisees under a number of different legal theories (Saccuzzo, 2002).
Consultation, as contrasted with supervision:
Consultation, by comparison, is a different arrangement and involves a different set of relationships. (Note the word “relationships”; we’ll return to it later.) For most clinicians, consultation involves approaching a colleague to discuss the case and receiving feedback. The amount of detail that is shared varies, and after discussing the case the colleague with whom the original clinician has consulted (the “consultant”) offers an opinion and/or suggestions.
Many clinicians perceive consultation to be a “lite” model of supervision. There is some truth in this observation, but only insofar as it involves two people discussing a case. The real difference between supervision and consultation is more fundamental and has to do with relationships. As noted above, a supervisor is ultimately responsible for the quality of care, and because of this the supervisor must know all of the available pertinent information to make informed decisions. An example of a supervision arrangement is where a supervisor watches videotapes of a student’s therapy session, which enables the supervisor to provide feedback about the student’s technique and collect data for treatment planning. Patients/clients are aware that the student is under supervision and that a supervisor is directing the treatment.
In contrast, consultation involves a professional who is responsible for providing treatment and asks a colleague for feedback. In a consultation, the consultant knows only the information provided by the treating clinician. This lack of access to information often results in less accurate suggestions, but also affords the consultant a measure of flexibility and creativity that might otherwise be absent if the consultant was responsible for the treatment. Indeed, a consultant knows that he or she does not have all of the facts and implicitly relies on the treating clinician’s good-faith judgment in incorporating the suggestions into the larger picture. Perhaps the “purest” form of consulting is the “case method” of instruction, whereby an instructor at a workshop is asked about a case and responds within the context of the training session. Under these circumstances the instructor is providing instruction, and it should be noted that this dynamic is not synonymous with treatment. That is, historically, courts have been unwilling to equate educational instruction with treatment. (Ranier v. Grossman, 31 Cal. App. 3d 539 (1973)).
Supervision vs. consultation: as a practical matter…
In practice, however, the distinction between supervision and consultation is not entirely clear. Clinicians seek consultation in a number of contexts. The forms of consultation vary, ranging from informal conversations at continuing education courses to repeated and in-depth discussions about the same case. At times, formal supervision can look like consultation. This is particularly true toward the end of clinical training, when supervisors often know less about the details of the interaction between student and patient/client. In these situations, the supervisor increasingly relies on the clinical judgment of the student. Indeed, toward the end of training, the interactions between supervisor and student increasingly resemble the consultations that the trainee will have with colleagues once training is over.
As we shall see, these distinctions are not merely academic. Like most professionals, clinicians practice in a larger socio-cultural environment that occasionally involves legal action. Supervisors and consultants alike occasionally face questions about the nature of their relationship with a patient/client.
Thus, despite similarities in appearance, supervision and consultation remain distinct in the legal relationships that are established. Most notably, though instructional consultations may be detailed and repeated, a consultant does not have a treatment relationship with the patient/client. Conversely, though supervision may be informal, the supervisor retains a treatment relationship with the patient/client.
It may come as a surprise, but for many legal actions (especially negligence) the law is almost as concerned with relationships as are clinicians. Under most circumstances the law does not impose a duty between individuals, but the psychotherapist-patient relationship is one situation where a special legal relationship exists.
The existence of a “special relationship” is legal shorthand for the existence of a duty of care. The common law did not recognize a duty to act or to protect others from the actions of a third party. However, some relationships have since been recognized by the law as “special relationships, and it is through these relationships that the law imposes a duty to act or to protect third parties.
The importance of being clear:
Knowing whether a relationship is supervisory or consultative is important because, as noted above, supervisors have a treatment relationship with the patient/client and are responsible for the course of treatment. Without this special relationship, there is no duty to control the activities of another in an effort to prevent harm. This means that, not only does a consultant lack a duty to prevent harm, but the consultant also does not have a legal obligation to seek additional information to make her/his advice accurate. The difference between supervisor and consultant can be the difference between defendant and non-party, and because of this the stakes can be very high.
Although the practical distinctions between supervisor and consultant can be fuzzy, courts are nevertheless charged with the responsibility to decide. Courts that have examined this question have done so in the context of the physician-patient relationship, which is similar in many respects to the psychotherapist-patient relationship. There are few published California cases that speak precisely to this question, but the few that do provide some clues about how to approach this topic. These cases have held that the decision to hold a defendant accountable to a third person, with whom there is no existing formal relationship, is a matter of public policy and involves balancing various factors. The factors that would militate for or against liability include (1) the extent to which the activities were intended to affect the third party; (2) the foreseeability of harm to the third party; (3) the certainty that the actions caused the third party’s injury; (4) the closeness of the connection between the actions and the injury to the third party; (5) the moral blameworthiness of the conduct; (6) the policy of preventing future harm; and (7) the social utility of the activity that caused the harm.
As evidenced by this lengthy list of factors, a determination of the status of a relationship is dependent on the facts of each individual case. There are no clear guidelines. However, clinicians can take comfort in the fact that reviewing courts have consistently expressed a reluctance to disrupt the exchange of information between professionals. Judges recognize that the case method of instruction is highly effective, widely used and of great social benefit. Because of this, courts have expressed an unwillingness to interfere in an educational transaction that has proven to be effective and is widely-used.
Unfortunately, this also has implications for practitioners who become highly involved in their colleagues’ cases. Consultants may establish a de facto relationship with a patient/client under a number of circumstances, such as if they become actively involved in recommending courses of action that are likely to be harmful. Consultants may also be held responsible if they are engaged in a consultation where they know that it is likely that the treating clinician will accept their suggestions wholesale, as a directive, and without a critical examination of the larger treatment picture. In other words, clinicians cannot use the label of “consultant” to act irresponsibly.
Note that this likely does not require clinicians, consultants, and supervisors to dramatically change their behaviors and practices. In most situations a check-up of professional roles is all that is required; most clinicians are trained to observe professional boundaries and already do so. In other circumstances, consultants might consider explicitly clarifying their roles and the limitations of their advice.
And of course, it is always a good idea to talk with an attorney for legal advice about a specific situation. As discussed above, the application of these factors is situation-specific and clinicians may want to confer with legal counsel if they have concerns about specific practices.
We hope that this article provides some useful background information with which clinicians can monitor their already-existing professional relationships. It is our view that the standard of care is raised when clinicians have a more detailed understanding of the legal and ethical environment in which they practice. This ultimately provides better services to the public, which is a goal that we all share.
References:
Ranier v. Grossman, 31 Cal. App. 3d 539 (1973).
Saccuzzo, D. (2002). Liability for Failure to Supervise Adequately: Let the Master Beware. Retrieved March 15, 2007, from; http://www.e-psychologist.org/index.iml?mdl=exam/show_article.mdl&Material_ID=9.
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8 Responses to “Supervision vs. Consultation: what you need to know”
Do the authors of the article draw a distinction as to whether the practicing mental health professional is licensed or unlicensed? In other words, if the mhp is practing under their own license, how could a consultation with another professional be construed by the courts as a “supervisory” relationship?
Dear Dr. Grenell,
Thanks for this very good question. The answer will likely vary from state to state. My response will focus on practice in California:
It is certainly true, as your question suggests, that the transition from unlicensed to licensed status is often accompanied by a move from supervision toward consultation. Licensed professionals are required to uphold the standard of care. As a general matter, clinicians only owe a duty of care to the patients with whom they have a professional relationship. In most cases this does not extend beyond the clinician/clinic-patient relationship.
There are some circumstances where another clinician owes a duty of care to the patient. One of these is where the other clinician is acting as a supervisor. Under California law supervisees are “employees” of the clinical supervisor and the supervisor is ultimately responsible under a number of different legal theories. Note, however, that the critical term isn’t so much whether someone is in “supervision,” but rather what is the nature of the “relationship” between this other clinician and the patient.
So keeping that in mind, I’ll answer and reframe your question:
The answer: in the rare event that something like this should happen, rather than declare an outside clinician a “supervisor,” (and thus hold him/her accountable) it is more likely that a court arriving at a similar result would merely establish that the nature of the relationship between the outside clinician and the patient created a duty of care. In other words, a court might not need to say that this outside clinician was a “supervisor,” per se. We used the terms “supervision” and “consultation” to highlight the continuum between duties owed and not owed. The important message isn’t so much in the label used as in the relationships established.
The reframe: “Are there circumstances where, if independently licensed clinicians seek assistance from another independently licensed professional, the clinician doing the assisting has a duty to do a reasonable job?” The answer is “yes, if there is an existing or created ‘relationship’ between the assisting professional and the patient.” (See the seven factors listed in the article for how this “relationship” is created.)
I hope this clarifies things. Thanks for your very good question.
Thank you for this very useful and informative article. I would like to extend on Dr. Grenell’s question.
If a licensed psychologist were to provide specialty services such as neuropsychological testing, to be incorporated in a licensed colleagues larger evaluation, such as a custody evaluation — I suppose that the neuropsychologist would retain a duty of care in regards to the services that they provided to the patient but would not have a relationship with the client in regards to the larger encompassing findings of the primary psychologist’s custody evaluation. Is this supposition accurate or has my X-% gone up a few points again?
Excellent Question. I think the answer here is, “it depends.” Just as in junior-high math class, the practitioner should “show his/her work.” In the case of the neuropsychologist performing specialized testing, the neuropsychologist should clarify the nature of the specific referral question, the data collected to answer that question, the inferences made based upon those data, the conclusions reached, and the limitations/qualifications of the opinion. This is, in fact, what most practitioners do.
Note that this isn’t just good practice; it also serves to delineate the limitations of professional responsibilities.
But in a situation where the neuropsychologist knowingly allows his/her work to be misused or misuses his/her status as an ancillary evaluator as a cover for unsubstantiated conclusions, it would be more difficult for the neuropsychologist (or any other ancillary evaluator) to retreat behind the shield of “I’m not responsible for someone else’s bad work.”
As you probably imagine, this is likely highly fact-dependent.
To elaborate a bit more on Perry Staltero’s inquiry that you acknowledge is “fact dependent,” what about a situation that is not either supervision or consultation; does not involve students or employees. Unlike those situations, there are no factors of “patient ownership” and employee exploitation (APA 2002) that apply (no on owns the patient); in fact Independent Contractors are typically paid the large majority of fees collected and payable to the group.
Specifically, in the growing model of Group Collaborative Family Practice: Typically Directed by a Psychiatrist or /Clinical Psychologist of this Group who interviews/intakes all patients/families and then contracts to Independent Contractors, say LMFT’s, for specified services, within the scope of their limited licensure. Per APAT each is listed as a 1099 Independent contractor (with all the tax benefits and consequences per IRS law). Per APAIT each must provide to Director evidence of licensure and malpractice coverage. Per APAIT the Clinical Director maintains a a Group Policy covering all actions of each Associate for which the Clinical Director is responsible. Moreover the Director is required to maintain separate accident/injury liability policy requiring Contractors to see Group patients only at he insured offices of the Group.
The Director under these conditions maintains a direct responsibility to patient welfare, and it would appear be is responsible for understanding, advising and in cases where LMFTs are intentionally or or unintentionally acting outside of scope of licensure, providing a collegial resolution …to professional differences by citing law, ethics and clinical practice- often unavailable to the Masters level therapist
These are not employees or supervisees. They are Independent Contractors under Contract as such, and of course, like the Director, must abide by relevant law, ethical practice an ey yu————trvfv standards of practice. In fact per your point, it could be argued that the “director: may )per APAIT would )may be liable for acts of omissions on the part of their supervisees Per APAIT Contractors) under a number of different legal theories (Saccuzzo, 2002).
This circumstance, though only briefly explained, does not appear to be addressed buy the discussion to date. Your comments?
Clinical Lawyer:
Re Independent contractors v employees v supervisees
This is a follow-up to my inquiry above, of 23, January, 2011. On review, I noticed some simple typos In the final paragraph (as I was hurried to see my first patient of the morning!!-apologies for the typos of the last paragraph)
That garbled sentence refers to the relevant law, ethics and standard of practice related to Group Collaborative Family Practice whereby a Ph.D Group Director (psychologist) contacts to within group MA trained therapists for a specific service(s) within the scope of MA experience and training. Ph.D-MA Collaboration for the purpose of medical quality assurance is the holy grail of such work, as you probably know.
Much like if an MD Director of a Group practice contracted to an in house NP for specified services-the NP collaboration with the MD would integral. The NP (besides a personal policy) would be covered under the Group Insurance policy of the MD. The NP is not a supervisee nor an employee, but is an Independent Contractor (the natire of my question to you) The NP’s acts would be subject to licensure scope and negligent acts would be attributed to both the NP license and the MD license.
Should the NP refuse to collaborate with the MD on patients whose evolving care moves beyond NP licensure scope, then risk management would fall upon both the NP and MD. Furthermore, should the NP reject all collaboration, and, (in some states allowable) set up a private practice with the MD’s patients-MD would would still face malpractice liability for negligent acts of his own NP to his own patients (who may of course, have no idea that their condition is beyond the scope of the particular NP involved).
So,Clinical Lawyer, what is the liability and responsibility to patients at risk for harm in this scenario whereby, the MD Director is the Ph.D. Director and the contracted NP is a contracted LMFT
Please respond, or perhaps there will be a blog reader that can add insight into the discussion. Comments?
Another excellent question. It’s actually a very complicated question because it involves a factual scenario that is somewhat different than the (relatively basic) supervisor/supervisee or clinician/consultant scenario that was articulated in the original article.
Generally speaking, independently licensed professionals aren’t responsible for the acts of another. Therapists usually work alone, so the opportunities to get involved with (and potentially incur liability for) someone else’s work are fairly rare. However, there are situations that I can imagine where independently licensed clinicians who work together might have joint responsibility to a patient.
I think that ultimately, it behooves anyone who works in a group practice to be mindful and sensitive to the practices of coworkers. In the situation where a director of a practice contracts out work to independently licensed professionals, I think the answer is, once again, “it depends.” The more disconnected the director is from the subcontractor, the less likely it is that liability will attach. If the independently licensed subcontractor does something really bad, and this is entirely outside the awareness of the director, it seems to me that the director would have a fairly good defense.
But it seems to me that it is going to be somewhat difficult for the director to remove himself/herself from responsibility entirely. After all, he/she is a “director,” and if the director doesn’t have any connection whatsoever with the practice’s patients, doesn’t it beg the question of what he/she is directing?
Again, this is very fact dependent, but I do think that ultimately, if a director has no actual knowledge of a subcontractor’s conduct, could not reasonably be expected to know that something bad/negligent was afoot, or had policies in place to prevent patient harm that were ultimately thwarted, that is likely to be a tough plaintiff’s case to make. But I also think it’s likely that, at least initially, a plaintiff’s attorney is going to want to cast as wide of a net as possible (as well he/she should, that’s part of the job).
Hope that helps.
Where would the role of assessing mastery of another professional’s skills and then serving in a gate keeping role with a professional organization fall with respect to consultation and supervision? For example, a professional situation where a licensed mental health professional who has expertise in one particular psychotherapy model provides “consultation” to another mental health professional who is aspiring to gain expertise in that model. In this siutation the consultant is paid for the services, is expected to evaluate the consultee, and then provide documentation and recommendations to a credentialing board about the consultee’s skills for which the consultee will gain additional credentials, I have several questions:
1. Would this fall into consultation or supervision?
2. Is there a dual relationship when the consultant is not only providing consultation, but assessing mastery and serving in a gate keeping role about the consultee for a professional organization?
3. Is there a legal and/or ethical issue when the consultant is teaching, evaluating, and then expected to provide a recommendation for the consultee?
I understand that this is a complicated issue, but this seems to be common practice for mental health professionals seeking advanced credentials in specialty areas such as hypnosis, DBT, EMDR, etc. In these situations, the consultant serves many roles that could be assessed as conflicting and or even as “restriction of trade,” especially if there is no industry standard established for assessment of skills.
Thanks!