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.
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.
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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