Medico-Legal and 
Psycho-Legal Responsibility
 – The Challenge of Contemporary Professionalism


Colm J O’Connor & Declan Aherne


Recent trends and developments in the sphere of public
 liability and health care practice have been a source of
 concern for most practitioners in the medical fields. The 
implications of these developments have particular and
 immediate relevance for mental health practitioners such as
 clinical psychologists and psychotherapists.


A medical model of liability and responsibility which promotes ‘defensive medicine’ 
is, seen by the authors, if incorporated by clinical psychotherapists, as having grave im
plications for effective and responsible health-care practice. It is suggested that an
 alternative model of professional responsibility needs to be developed where the professional role of the psychotherapist is defined in such a way as to diminish practitioner
 hierarchy and power and to promote patient autonomy. This paper is presented as a dis
cussion document in an attempt to raise key issues that need to be addressed and to 
initiate further dialogue and reflection.

A GP colleague reported recently how tired he was following as late night ’emer
gency’ the previous evening. He was attending a concert performance with his wife when
 he was reached. His patient, obviously extremely distressed and in a state of emotional 
panic, informed him that she needed to see him as soon as possible. The doctor, out of
 a sense of responsibility, felt obliged to respond to this call. He apologised to his wife
 and left the concert early to go and attend to his patient. Talking with him later about 
this he disclosed how he believed that this kind of situation was part and parcel of gen
eral practice and it was an aspect of patient-care that the patient population have come 
to expect. We later began to challenge some of his and our own assumptions about professional responsibility and health-care. It appeared that this kind of practice was quite
 common for general practitioners and represented a kind of response that clinical psychologists and psychotherapists are vulnerable to, given the recent trends in
 medico-legal responsibility. It is our belief that this kind of patient care emerges directly from a medical model of professional practice that, in many instances, flies in the face 
of many core assumptions and conditions that are essential to ethical and responsible 
health-care practice.

This paper is being written out of concern for what we observe as the professionals’
 increasing fear of legal action being taken against them and the effects this might have 
on their practice. As two practitioners who have been concerned about these issues, we
 offer this paper as a discussion document and a starting point from which we can begin
 to dialogue and concretise our own thinking. With the emergence of a new Europe at
 our door step, issues of liability and accountability will become increasingly important
 in our work. A proposed European Commission directive (1) on the liability of the sup
pliers of service suggests that in areas of professional practice the sole responsibility will
 lie with the provider of service. This proposal, if adopted, will have enormous implica
tions for our work.

PSYCHOLOGY AND THE LAW

Public Accountability


At the outset, we wish to recognise the necessity of comprehensive professional and
 public accountability for all qualified practitioners. In psychology and psychotherapy, as
 in many professions, there is a great danger of the abuse of power and position. (From
 this point forward reference, in this discussion, will be made only to ‘psychotherapy’ and
 distinctions will not be drawn between the mental fields. It is an unfortunate fact that
 many of our colleagues in psychiatry or clinical psychology while practising as clinicians
 are not trained as psychotherapists). Being attracted by the ‘Healer-Patient’ archetype,
 without being aware of its inherent polarities and unrecognised ‘shadow side’, can be a
 grave danger (2). The law is essential for the protection of the public, particularly for 
those who are most vulnerable in our community. We understand this premise to be fundamental to the philosophy we wish to articulate. Ultimately, as professionals, we must
 be answerable to the general public through a legal system which acts on its behalf.


Duty of Care and Negligence


It is crucial that we as psychotherapists clarify the essential components of our re
sponsibilities in the eyes of the law. The responsibibIties, as laid down by the law for all 
health care professionals, refers to “the duty of care”(3). This requires taking ‘reasonable 
care’ in all circumstances in our dealings with clients. The majority of breaches of
 Common Law relates to such care not being taken (referred to in legal terms as ‘tort of
 negligence’). Reasonable care refers to what competent practitioners within a speciality would agree with and support. Fears about what one’s colleagues might suggest you 
do in any given circumstance are commonly experienced in the field of medicine and 
more so in the field of psychotherapy. These fears can arise as much from our own insecurities about our competence as they do from practicing in a medico-legal system.
 To practice adequately one must be willing to explore the former before addressing the
 latter.

The law goes on to state that the actor is responsible for his own negligence. Clearly, the law expects the psychotherapist to carry ‘the primary responsibility for his/her own acts and ommissions’. Whilst in many cases the practitioners’ negligence and the ensuing behaviour of the client may overlap, it is vital that we keep these two factors apart if we are to clarify where our professional responsibilities lie. McCarthy and O’Mahoney (4) point out that if a practitioner acts with due care, considering all the circumstances and 
acts within the realm of his competence, he will not be held to be negligent. At first
 glance this may appear reassuring. However, we can never know all the circumstances 
and we may not know precisely the limits of our competence. Ultimately we are to be
 judged in comparison with our colleagues and fellow professionals and, in this regard,
 we as a profession need to have a say in who these might be. In particular, they must be
 professionals who have undergone rigorous training and supervision in psychotherapy
 and who, consequently, can be assumed to have a clear understanding of the nature of
 psychotherapy. To the surprise of many in the field of medicine, this would rule out a
 large number of psychiatrists and psychologists who have never undergone such train
ing or supervision.

PSYCHOTHERAPY AND THE MEDICO-LEGAL MODEL

Defensive Medicine


Why are we concerned about the issues we raise here? According to Quinn (5) a con
cern of doctors in Ireland is that rising fear of litigation will lead to defensive medicine
 defined as “the practice of doctors undertaking treatment which they think is legally safe
 even though they may believe that it is not the best for the patient” (6). It is evident that 
medical-legal practice has developed to such an extent that the welfare of the patient 
often becomes secondary to fear of legal action. Many doctors now maintain that they
 would feel restricted in their practice due to the legal implications of their actions. So
 one ends up with a ‘cart-before-the-horse’ phenomenon where the guiding motive in
 professional practice becomes self-protection rather than patient-care. We would hope 
to prevent this situation from occurring within the field of psychotherapy and it is this
 very concern that prompted this discussion paper.

The pattern of the law in relation to the caring professions has been largely influ
enced by the medical model. Heretofore in medicine there has been, using the
 Transactional metaphor, a Parent-Child relationship between doctor and patient. This 
is what is referred to as the doctor-centric model(7). More recently, according to Quinn, 
questioning of doctors by patients has become more usual while the acceptance of pre
scriptions, instructions, or directives has become less common. Inherent in this change 
is a transfer of responsibility to the patient, resulting more in an egalitarian relationship. 
Perhaps it is this situation that has generated much of the anxiety amongst physicians 
regarding legal action being taken against them. Surely this is not a healthy response.
 Already indications from the US with regard to psychotherapy are that legal restrictions
 are making it more and more difficult to provide an effective service.

Towards an Alternative Model

What we are searching for is a clarification and understanding of the fundamental
 differences between traditional medical models of provider responsibility and those which have been developed in the field of psychotherapy. We would hope to then have 
this reflected in a legal system which remains as the broad container that protects the 
’consumer’ from practitioners who do not comply with the corresponding Codes of
 Ethics and Practice. (A Code that also protects the practitioner).

The reason we state this is because psychotherapy has, as one of its ultimate aims,
 the education of the individual in self support. The word ‘responsibility’, when broken
 down, reads ability-to-respond. However, fear of the law can prevent us allowing the
 client to exercise this ability thus negating any effect of the service provided. There is a
 danger that the very principles on which the law is based do not reflect the principles of
 those whom it serves. It is our intention that, in so far as is possible, the client must be 
given responsibility for his actions and we feel there is need to redress the balance in the 
taking of this responsibility (8). The law must not be considered the enemy of the people 
but as a support to all of us, working for us. Throughout the history of psychotherapy,
 it has been in the halls of psychiatric wards and in consultants’ board rooms that the
 values and principles which guide ethical practice have often been hatched. Within these
 confines, the field of vision has been somewhat limited. With psychology and psychotherapy in particular it appears that some of these values create dissonance. What we 
are basically arguing is for a change of attitude and a process of social re-education in
 the taking of personal responsibility. This, we believe will provide a greater opportuni
ty for health and development. We believe then, as a consequence, that the medical,
 legal, and psychotherapeutic ‘systems’ must reflect this in real and concrete ways.

Hierarchy and Powerlessness


The medical model of practitioner responsibility is hierarchical, male and parental 
(which many of us in the field of psychotherapy operate out of, despite our espoused 
values). It serves many patients in the medical sector very well but is at the same time a 
tragic disservice to many others – particularly those with strong psychological compo
nents to their illnesses. But of equal importance is the fact that it is a disservice to the
 practitioner herself as she is prone to assuming greater and greater responsibility and
 becoming cornered into protecting herself from the consequences. A psychological 
model must always be seen to be collaborative and must avoid defining itself as a profession with more power than it can or could ever have. If the truth be known,
 psychotherapy is far less effective as a curative measure and far less efficient than many
 of us in practice would like to believe. But herein we find our strength. That is, in clear
ly knowing our limitations. To know our limitations clearly is not to emphasise our 
inadequacies, as some might suggest, rather it serves to crystallise our competencies.

The Samaritans are an example of a counselling service for which we have considerable regard particularly because its success is derived from its clearly understood mission,
 the limits of its influence, and the boundaries which define what it is mandated to do. 
Paradoxically, its success with suicidal patients is derived out of its acknowledged powerlessness and regard for the complete autonomy of the client. A similar paradox is 
evident in the Alcoholics Anonymous movement which puts powerlessness as its first 
step toward recovery. Professional bodies can learn a great deal from this. If psycholo
gy gets caught in the game of expanding its ‘power’ it will assume more responsibility
 than it can or should ethically handle. Medicine has already done this. The cost to all of 
us is huge indeed. It is particularly problematic for those of us working in interdisciplinary contexts where there is a clash of paradigms. If we swallow the medico-legal
 model we handcuff ourselves with responsibilities that should never be ours.

Self-care and Dependency

Putting it simply, one can state that there are two approaches to health-care: One 
where the goal is to facilitate ‘self-care’, the other where the goal is to ‘take care of’ the
 patient. Psychological therapy is a collaborative venture. It emphasises the role of the
 patient in his or her own health promotion and psychological well-being and has as its 
goal client-autonomy and self-support, unlike the traditional medical system that has
 seemed to foster patient dependency. As long as the intellectual, emotional, and financial rewards of the present medical system continue as they are there will be little impetus 
to change this model. Knowles (9) puts this well:

“The idea of individual responsibility has been submerged to individual rights – rights 
or demands to be guaranteed by government and delivered by public and private institutions…..I believe in the idea of an individual moral obligation to preserve one’s own 
health – a public duty if you will……Clearly we do not die as often as we kill ourselves!”

From our perspective, while protecting the public from malpractice we need to have 
our parameters clearly defined in such a way that the individual moral obligation of the 
client to preserve his/her own health must not be undermined in any way. We must have
 no directives that promote client dependency. We are at the same time cognisant of, for
 example, the psychotic client who is not often in a position to assume self-responsibility – our own parameters are attempting to delineate this clearly. This raises the issue
 then of clinical competence and standards. The nature and necessity of clearly defined
 Professional Standards is central to this discussion.

ISSUES FOR THE PSYCHOTHERAPIST

Avoidance


The fields of Psychotherapy have shied away, perhaps unconsciously, from the issues 
raised here because of being unclear about its parameters and feels accountable, in some
 way, to the medical and legal fields. Such avoidance serves to enlarge the problem rather 
than diminish it and forces others to resolve our conflicts for us. To put it in Erikson’s
 language of conflict, in the development of our field we are still struggling with auton
omy versus shame and doubt.

Tragic Outcomes and Emergencies

Quite clearly the model of professional ‘responsibility’ that guides practice has 
emerged from a reaction to the threat of what we shall term the ‘tragic outcome’, i.e. a 
death, suicide, serious illness, prolonged hospitalisation, etc. If there is a tragic outcome the normative human response and question is, and should be, “was it preventable?” And 
if a patient was under the care of a practitioner prior to this outcome can he/she be held 
responsible in some way for the outcome? This is the core issue.

Professional Roles


The resolution of the dilemma lies in establishing clear professional identities. Ou
t of this emerges a clear delineation of our professional role. And out of this comes a clear 
understanding of the boundaries and limitations of our work and what we are responsi
ble for within these boundaries. This identity of ours is not as clearly outlined as many 
within our field would have us believe. Any of us who have conducted case-conferences
 on suicidal patients know well the kind of reaction and uncertainty that results.

Let us look at a familiar question as an example. The question posed is often the same
: What am I supposed to do with an actively suicidal patient? Am I supposed to have him 
committed to a hospital, even if against his will, to ensure his safety? Am I obliged to 
breach confidentiality and inform his family? What procedures am I obliged to pursue?
 Where does my responsibility as a ‘provider’ end and where does my client’s a
bility as a ‘consumer’ begin? Unless we as practitioners have a clear idea of what we can 
and should do in such situations then we have no business practising as psychotherapists.

The medical profession may well dictate, if it is to continue on its current vein, that a 
practitioner is obliged to do anything that prevents a tragic outcome, regardless of the
 wishes of the patient. It is our belief that the psychotherapist is required to do only dearly specified things to avert a tragic outcome.

Conclusion


What might we propose out of this discussion? A number of issues appear to us as
 be of central importance:

1. With the immanent changes of being part of a new Europe at our doorstep, these 
issues assume increasing importance. The role of the Irish Standing Conference an
 Psychotherapy is one that we assess, along with others, to be of great significance. As 
our fields and professions become necessarily more clearly defined so too will our legal
 and ethical responsibilities. Given the stance of the Dutch and German representatives 
in defining psychotherapy we believe the issue raised in this paper are central. Now is 
the time for us to explore these issues.

2. What the EC and the Standing Conference challenge us to do, in a long overdue 
manner, is to establish the common ground between the various models for psychotherapy. The territoriality often exhibited by practitioners who become attached to 
their particular ‘model’ is long since outdated. We are in need of professional support
 systems that help us to articulate our responsibilities as practitioners operating in very 
real local communities.

3. We would like to explore various possibilities in establishing counsellor-client contracts which would clearly reflect how we define ourselves in a professional relationship.

(For further details of this contact the authors)

4. Considerable attention needs to be paid to third-party systems of reimbursement
 for services – which in Ireland is confined to VHI. This system of repayment may, in the
 future, become central to how we are perceived by various other systems. In the US for 
example, it is the large insurance companies which dictate who is competent to carry out 
various medical and psychological services and will only reimburse patients who have 
received treatment by professionals which the insurance company designates as competent. At present in the US registered clinical psychologists and psychiatrists are the only
 professional groups so designated to carry out psychological therapy which it will reim
burse. These companies use as their guidelines a medical model of diagnosis, usually 
according to DSM-IIIR, and corresponding treatment. If Ireland, in the wake of EC developments, moves in a similar direction over the years then psychotherapy, as a field,
 will remain as the poor relation of the other specialities and will be bound by the medico-
legal model.

5. Our intent in this paper is not to reach clearly defined conclusions but rather to 
open up the issue of legal responsibility and accountability for further discussion. We
 hope that such clarity will evolve as we give more attention to these matters.

References:


1.European Commission Council of Ministers, COM(90) 4A2, December 20 1990

2. Guggenbuhl-Craig, A. Power in the Helping Professions. Spring Publications, Dallas, 1977.

3. McCarthy, JB & O’Mahoney, DS. The Legal Responsibility of Psychologists. Bull. Br. Psychol. Soc,
1977; 30; 378-379.

4. Ibid.

5. ICGP. Sligo/Leitrim Faculty. Draft Policy Statement on Medical Negligence, Compensation and
 Accountability.

6. McCarthy, N. Let’s Kill All the Lawyers. Medico-Legal Society of Ireland, March 27, 1987.

7. Millon, T, Green, CJ & Meagher, RB (Eds). Handbook of Clinical Health Psychology, New York,
Plenum, 1982.

8. Nelson-Jones, R. Personal Responsibility Counselling and Therapy: An Integrated Approach.
 Harper and Rowe, London, 1984.

9. Knowles, JH (Ed). Doing Better and Feeling Worse; Health Care in the US. Norton & Co., New 
York, 1977.

Colm J. O’Connor, MA., M.Clin.Psych., APSI., Cork & Ross Family 
Centre, 34 Paul Street, Cork.


Declan Aherne, MA., M.Psych.Sc, Limerick University, Plassy, Co.
Limerick.