Working with Multiple People in Therapy: A Refresher on Obligations

The following article was authored by myself and A. Steven Frankel, Ph.D., J.D. It appeared in a slightly altered format in the September/October 2008 issue of The California Psychologist, the newsletter of the California Psychological Association.

Working with Multiple People in Therapy: A Refresher on Obligations

Questions about how consider our professional relationships with multiple people are common.  The template from which most of us learned the “rules” of record-keeping, confidentiality, and other responsibilities was based upon the model of individual psychotherapy.  This model is helpful because it presents concepts in a relatively clear and straightforward manner: psychotherapists have responsibilities to individual patients and these responsibilities take place in the context of a professional relationship.

As most of are aware, however, the relatively straightforward nature of the “psychotherapist-patient” relationship becomes somewhat less clear when the number of individuals with whom a clinician is interacting in the same case begins to increase.  Doesn’t this challenge our assumptions about the very nature of the psychotherapist-patient relationship?  It may, but only insofar as it sometimes leaves us wondering about whether the legalities of the relationship change.

Part of the confusion lies in the fact that our obligations in a psychotherapist-patient relationship are “imported” to a certain extent from the medical model.  Similarly, the laws that concern the psychotherapist-patient relationship were also imported from the laws that govern the more traditional medical model.  There are some significant differences between the laws that regulate the psychotherapist-patient relationship and those that regulate the physician-patient relationship, but the fundamental attributes of these professional relationships consist of a common core of legal obligations.

These legal obligations exist because a clinician, in the context of a professional relationship, must perform acts consistent with the duties of the profession.  The flipside of these obligations is that patients have a legal right to these duties.  When discussing the nature of these obligations when working with multiple people, it is difficult to overstate the importance of understanding that these duties arise out of the professional relationship, and not merely because one of the parties is a clinician.

In many ways, the obligations that clinicians have toward their patients do not change just because there happen to be more than one of them.  That is to say, a clinician owes each person a separate set of legal obligations.  Thus, in couples therapy, both of the parties have independent rights to confidentiality, quality treatment, informed consent, etc.  The same is true in group psychotherapy.  In other words, the obligations owed by clinicians are to the individual patients, not to the groups.

Unfortunately, the realities of clinical practice are not always so clear about what constitutes a “patient.”  All clinicians would likely agree that the legal obligations that constitute a psychotherapist-patient  relationship are owed to long-term psychotherapy patients.  But what about the occasional visitor?  Collaterals?  In many cases, situational factors do not clearly identify those with whom we have obligations from those with whom we do not.  Fortunately, we have two tools that help us to distinguish whether we have obligations toward these peripheral individuals: case law and paperwork.

With regard to case law, the law calls these peripheral individuals “third parties” to denote that they do not have a direct and obvious contractual relationship with the treater.  There are no clear answers, but the law uses a balancing test to determine whether these obligations are owed to the third-party.  The factors utilized in this balancing test include “the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.” Biakanja v. Irving, 49 Cal. 2d 647, 650 (Cal. 1958).

Thus, in situations where a psychologist directs a third party to enter into the treatment relationship in a way that the third party would be affected by the treatment relationship, these duties may arise.  Similarly, if a third party enters into the treatment relationship and a reasonable clinician would anticipate that this third-party would be affected but does nothing to clarify the nature of the relationship between the clinician and the third-party, these obligations may also arise.  This is obviously not the paragon of clarity. See, e.g., Ramona v. Isabella, No. 61898 (Cal. Super. Ct. May 13, 1994).

Fortunately, practitioners can provide a measure of clarity on a proactive basis.  In fact, many already do.  Many clinicians produce documentation/paperwork that resolves these issues and clarifies the nature of the relationship between themselves and third parties.  This can be accomplished in the form of actual paperwork, such as a form that is given to therapy “visitors” at the outset of any meetings .  These forms sometimes contain a statement clarifying that the third party is present only to provide information and/or assistance in the patient’s treatment, and they specify that a psychotherapist-patient relationship is not established.  These forms also frequently indicate that, because the visit does not constitute a therapy relationship, the third party should not expect the other obligations of a treatment relationship such as confidentiality. (For more elements see below.)

Other clinicians do not use a form, but instead insist on discussing these matters at the outset of the communication.  The conversation and the third-party’s understanding is then documented in a contemporaneous note that is filed in the patient’s chart.  The choice to use a more explicit form or merely to document the conversation is mostly a matter of preference or office/agency policy.

There are several ways to communicate the lack of professional relationship, but most of them have some important common elements.  As a preliminary matter the patient’s consent is necessary (except in an emergency).  The communication should also include (1) an explanation that the third-party is not a patient; (2) an explanation of the reason for their voluntary attendance (or other communication) and that it is for the benefit of the patient; (3) a statement of the limitations of confidentiality and how the information they provide will be stored; (4) possible risks and benefits; and (5) other things that might be helpful to communicate (such as the lack of fees and when a referral might be necessary).

Clinicians should also be mindful of any tendency that the relationship with a third party may “creep” toward that of a patient.  One common means through which this occurs is when a third party attends sessions on a regular basis and/or otherwise begins to utilize someone else’s treatment as their own.  In these situations it is important to clarify the nature of the relationship and to refer if warranted.

We are delighted if this article provides guidance, but we are also mindful of the fact that reality often intrudes upon everyday practice.  In unclear and confusing situations it is  important  to seek the counsel of an experienced colleague.  Formal consultation is one of the most effective means clinicians possess to access the standard of care.  Chances are that if you don’t know your professional obligations, an experienced colleague can help you to sort out your responsibilities.  Of course, if additional complications arise it is advisable to consult with your professional liability carrier or your attorney.

References:

Biakanja v. Irving, 49 Cal. 2d 647, 650 (Cal. 1958).
Ramona v. Isabella, No. 61898 (Cal. Super. Ct. May 13, 1994).

Adam Alban, Ph.D., J.D., is a practitioner of law and clinical/forensic psychology in San Francisco.  He also owns and operates www.clinicallawyer.com, an online resource for mental health professionals.  He previously functioned as a clinical psychologist and law clerk for the General Counsel of the District of Columbia Department of Mental Health in Washington, DC.

Steve Frankel, Ph.D., J.D., practices both law and clinical/forensic psychology in the San Francisco Bay area.  A Clinical Professor of Psychology at USC and Adjunct Professor of Law at Golden Gate University, he has authored over 50 articles, chapters and books and has provided continuing education in law, ethics, trauma and forensic psychology for ten years.

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