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.