Negligence and the Psychotherapist

by Martin Collins

Standards and Duty of Care

Society to day is very demanding and people demand high standards. If these standards are not met or maintained then someone has to be answerable. This is no less true for the psychotherapist. There was a time when it was quite unusual to see a professional being sued but now in certain professions at least it is quite normal. I have been unable to find any reported cases in Ireland of negligence actions against psychotherapists, but I am sure if history is anything to go by, then it is only a matter of time before we do find such cases reported. Part of the reason for this, I am sure, is because the Irish people have been slow to go down the road of attending psychotherapy. I expect Irish people have been exposed to film and television from the U.S and I would think it fair to say that the role of the psychotherapist has perhaps been portrayed in a comical fashion. However I believe things are changing slowly and the pressures that people are now under in this country are such that there is a greater demand for the psychotherapist. The world is now a much smaller place and with the internet ordinary people can now access information in different areas of expertise and do their own research on medical and quasi medical matters.

IAHIP Code of Ethics and Practice for psychotherapists.

One way in which standards are set and maintained is through the IAHIP Code of Ethics and Practice for psychotherapists. In paragraph 1.1 of the bye law it is stated that the purpose of this Code is (inter alia) to establish and maintain standards for psychotherapists who are accredited members of the association. Student associates and affiliates agree to abide by this Code. Paragraph 3 of the Code sets out the Issues of  Responsibility. It might seem obvious but the first obligation on a psychotherapist in the first meeting with the client is to explain fully what the psychotherapist has to offer. While this is not stated in the Code, legally this probably constitutes the contract that comes into effect between the client and the therapist. Hence its importance. Very often the client comes to the psychotherapist complaining of one particular issue or a number of issues and the onus is on the psychotherapist to fully explain to the client what approach or approaches he/she may adopt in an effort to assist the client. Of course the client may or may not be familiar with these approaches and so the psychotherapist should try to explain them to the client in simple terms. As therapy continues the psychotherapist should continue to keep the client informed as much as possible and in particular, inform the client of potential adverse effects which can occur and how to try and cope or deal with them if such was to happen. In particular cases such as in dealing with children or persons who may be on medication, appropriate consent in writing should be sought from the appropriate person such as a parent or a doctor. Of course the psychotherapist should ensure that they make and keep in a safe and secure place contemporaneous notes of all consultations with client. These notes are the property of the client and it may arise that at some point in time, in the future these notes may be required if only to be able to show the client how far they have come in their therapy. It may arise that these notes may be necessary for evidence in court proceedings or in supporting evidence in court proceedings. Contemporaneous means at the same time. Such notes at the very least should be made shortly after a consultation when facts are fresh in the memory, but the best practice is making the notes during the consultation.

Paragraph 3.6 of the Code of Ethics provides “Psychotherapists must not exploit their clients either financially, sexually, emotionally or in any other way.” This might appear obvious to the ordinary person and not require specific mention. Clearly a client coming to a psychotherapist is similar perhaps to a patient attending a doctor or a parishioner attending a priest. The client normally is in a vulnerable position and is attending a psychotherapist for assistance in improving their life situation. The psychotherapist and the client over a period of time develop a confidential and trusting relationship and any thing that interferes with that relationship is damaging. However life experience tells us that on occasions such relationships do develop and if it does there is an obligation on the psychotherapist to terminate the client /therapist relationship and seek guidance from his or her own supervisor. Paragraph 3.9 of the Code of Ethics provides that psychotherapists should not enter into a significant relationship with a former client unless there is a lapse of a considerable period of time after the ending of the psychotherapy.

On the question of client fees, obviously as with any other business, one has to cover the normal business expenses as well as making a profit so as to ensure one can have a reasonable life style. If a psychotherapist was to breach any element of the above paragraph not only can the he/she be sanctioned by the association on foot of a complaint but in certain circumstances and situations find themselves on the receiving end of criminal or civil proceedings, for assault or taking money under false pretences.

Negligence

The foregoing sets out the self regulation and what is expected of a psychotherapist but what remedy does a client have otherwise. This raises the question of negligence. What is negligence? Well given where Irish society is today and the amount of litigation that is going on and reported in the media, I would think that most Irish people have some understanding of negligence. Most Irish people today own and drive their own cars. It is mandatory to have them insured. A great many people own their own house if not houses, and pay insurance on same and we constantly hear in the media the cost to an employer of insurance for employees in the work place. We all know someone who has sustained personal injury in an accident either in the work place or a traffic accident and obtained financial compensation for the injuries and loss sustained arising from same. However, in law it is not good enough just to suffer injury or some loss at least in Ireland.

There are four elements in negligence:

(a)   A duty of care

(b)   A failure to conform to the required standard

(c)   Actual loss or damage to the Plaintiff

(d)   A close causal connection between the conduct and the resulting injury

A simple way of looking at negligence is to think of it as the failure to do something which a reasonable person in ordinary circumstances would do, or doing something which a reasonable person would not do. What is reasonable in any case will depend on the following four factors;

(a) The nature of the relationship between the parties

(b) The magnitude of the threatened injury

(c) The seriousness of the consequences of the injury for the injured party

(d) The cost of preventing the risk of injury

It is perhaps obvious where a driver of one car collides into the rear of an another motor vehicle. Clearly this should not happen. We all accept that the person driving the vehicle behind should be aware of the vehicle in front and drive at a speed and a distance behind such that in the event of something unforeseen happening. The driver in the car behind should be able to stop the car without colliding with the car in front.

The Medical Profession

How does this apply to a psychotherapist. There are no cases reported on the question of the psychotherapist and negligence. So by way of comparison let us look at the medical profession. The standard of care required of medical practitioners has been analysed in a number of cases and it has been stated a medical practitioner is liable for injury caused to another person, to whom he owes a duty of care, or if he fails to possess that amount of skill which is usual in his profession, or if he neglects to use the skill which he possesses or the necessary degree of care demanded or professed. It has been said a doctor must possess such knowledge and skill as conforms to the recognised contemporary standards of his profession. He must use such skill and knowledge to form an honest and considered judgement as to what course, what action and what treatment, is in the best interest of his patient. Now this does not mean that the doctor guarantees the patients’ health. Patients do die. The test is whether the doctor has behaved reasonably. A doctor will not be negligent where he makes an error of judgment, provided the error was not an unreasonable one. There may be cases where the judgement of the physician is proved by subsequent events to have been wrong. But if it is honest and considered and if, in the circumstances known to him at the time it can fairly be justified, he is not guilty of negligence. A medical practitioner will be required to keep reasonably abreast of modern developments in his subject, but he will not be held to a standard stricter than this.

With regard to medical specialists, a medical practitioner who holds himself out as a specialist in a particular field is required to attain to the ordinary level of skill among those who specialise in the same field.

Regarding the issue of consent it is clear that there are some matters which a doctor must tell his patient in order to afford the patient an opportunity of deciding whether to accept his opinion or perhaps consult another doctor. In a situation of an operation where an unexpected complication arises, the surgeon will be expected to do and exercise the standard expected from such a class of surgeon.

The Psychotherapist

Applying the foregoing to the psychotherapist, clearly he/she has to apply a standard of care and treatment which one would expect from such a practitioner. Psychottherapists who specialise in suicide, in trauma or in body work would be expected to utilise care and skill that psychotherapists who specialise in such an area utilise. In the U.S there was a case in the 1990’s where a former patient at a prestigious mental hospital sued the hospital for negligence because it failed to treat his severe depression with antidepressant drugs. Hospital clinicians had offered the man only intensive, four times a week psychotherapy. The case was settled out of court.

This highlights the fact that in taking on a client in the first place, a psychotherapist should satisfy himself/herself that the client knows what is being provided and should understand the nature and the manner in which the service is being provided. A key question is how suitable the person/client is for psychotherapy, whether the person is suffering from perhaps a psychiatric condition best dealt with by a doctor or a psychiatrist? The next issue to be addressed with the client particularly if one specialises in a particular type of psychotherapy is that a full explanation should be given to the client about how it might affect the client particularly after a deep session in therapy. This can be very frightening and very difficult for the client. So I would suggest that some time be spent on explaining to the client the possibility of such happenings so that the client might have some forewarning and perhaps be better equipped to deal with the situation. I would also recommend that the client be equipped with some basic techniques so as to be able to handle the situation, to help them ground themselves in the event of the client re-entering an emotional state while on their own. Further, it is important that the psychotherapist ensure that the client is fully grounded before they leave the room particularly if the client is driving a vehicle or is going out into busy traffic. It is very important that the client has a full understanding of what is involved in the particular type of psychotherapy employed. Clearly if a psychotherapist does not utilise the appropriate standard of care and the client, as a consequence, suffers additional stress, injury and loss then the psychotherapist could find themselves on the receiving end of a claim in damages for negligence as well as in breach of contract. The latter arises because at the outset the psychotherapist and client have entered into a contract that the psychotherapist will provide a service for which the client pays a fee.

Another example of where an action in negligence might arise would be where a client is not fully grounded on leaving the session, gets into a car and drives, or is walking out into streets with heavy traffic and is involved in a accident and the client claims that she left the psychotherapist in an emotional and confused state. It is the obligation of the psychotherapist to ensure that the client is fully grounded prior to leaving the room.

Another area where difficulty may arise is in the area of abuse where the abuse is attributed to a named third party resulting in complaints to the Gardai, perhaps marital breakdown or family difficulties. People might want to find a scapegoat and blame the psychotherapist. He/she might find themselves as a witness in proceedings, the subject matter of a complaint or the Defendant in civil proceedings brought by a third party and not the client. In such circumstances the psychotherapist will have to be able to present evidence of procedures adopted and utilised which will meet the required standard of a psychotherapist generally. This is a further reason why the psychotherapist should ensure that proper and contemporaneous notes are kept safe and secure.

Notes and Court

This raises the question of when notes can be used in court and what privilege is attached to these notes. The only privilege that exists in our courts is the confessional or that between the confessor and the priest. So if your client is involved in court proceedings and the other party serves a witness summons on the psychotherapist to give evidence, he/she is obliged to attend court. This does not mean that the psychotherapist can breach confidentiality and talk to the other side. He/she turns up at court, does not talk to the other side and is not obliged to talk to them. If they call you to give evidence, then they will not know what you are going to say in answer to any given question. Most lawyers would not call a witness without knowing what answers they would give to any particular question asked. However there are occasions when this does happen. If called to give evidence in such circumstances, firstly ask your client for permission to give evidence and if he/she permits, then you can answer the questions. But if client does not permit then you have to explain this to the judge hearing the case and he will direct on the matter. Therefore, this must be borne in mind when writing up notes of therapy sessions.

I would like to draw your attention to the issue of how long a person has in law to take an action in Negligence? For personal injuries the straight answer is two years but if some one is suffering from a disability such that their capacity to bring a action is affected, then they have two years from the time the disability is abated. There have been a number of cases in Ireland in the recent past where people have taken cases many years after the abuse and experts have given evidence that the Plaintiff was not aware or in a position to bring a case because the trauma that they were subjected to had had such an effect on them that they could not act on it.

Conclusion

The foregoing I hope illustrates some of the issues that might be of concern to the psychotherapist in the context of a client /therapist relationship. However in recent times with ever expanding numbers undertaking courses in psychotherapy and the expansion in institutions providing such courses, other issues arise such as those between student psychotherapists and their supervisors, as well as between students and their trainers/teachers. If an issue arises between a student and a trainer/supervisor every effort should be made to resolve this by discussion as between the parties themselves. If this is not possible then discussion could be through a third party on an informal basis. Students will be slow to complain for fear of punishment and so a system should be in place whereby students can feel they can make a complaint without fear of punishment. Perhaps there should be a facility whereby a student could bring their concerns to another person in authority on a confidential basis in the first place and discuss the issue with that person. Also there should be a body in situ that oversees the work of the trainer/supervisor. Another issue that might arise is that of bullying. Bullying must be distinguished from inter-personal conflicts. Bullying is something more than that. In Ireland the definition of work related bullying is repeated, inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise. So a once off incident is not bullying. Bullying is not acceptable behaviour between a person in a position of authority and a student, and systems have to be put in place to protect both parties.

It is only right and correct that standards are set and maintained. There is a duty on all the members of the association to ensure that this is the case. Members might be aware that colleagues are overworking, suffering from stress or worse still have a drink or drug problem. Clearly there is an onus on fellow members in such circumstances to ensure that this person is helped and that no damage is suffered particularly by clients or students. It is imperative that psychotherapists attend worthwhile and relevant courses to keep up-to-date with new developments and approaches in psychotherapy so that the client can the benefit.

Martin J Collins B.A., B.L. practices as a Barrister and has attended psychotherapy training. He is available for lectures on the subject of ‘Law and the Psychotherapist’. mjcollins1@eircom.net