Constitutional rights of Patients and Treatment

General Remarks:

Medical practice has always been governed by law. Currently, professionals face a very high standard of accountability, not only because of the threat of malpractice but also because of the monitoring of professional practice through the National Data Bank. The National Data Bank began operation in the fall of 1990 with physicians and dentists, but eventually it will include all licensed health care practitioners throughout the United States. The mandatory reporting of disciplinary actions against practitioners and of malpractice awards or settlements has already had an impact on the entire health care field. The emphasis is on prevention and risk management. Suits now primarily involve allegations of negligence for improper management of psychopharmacological treatments, suicide, inappropriate hospitalization, patient abandonment and sexual involvement. Malpractice suits for negligent psychotherapy, per se, are uncommon because the standard of care is so diverse, given the multitude of psychotherapeutic schools and the fact that causation is very hard to establish. Negligent psychotherapy is usually associated with other allegations.

Sexual Misconduct:

Although the Hippocratic tradition clearly held that sexual involvement with any patient was unethical, the reality is that, like child sexual abuse, sexual relations between health care practitioners and patients have been one of those dark secrets that one made every effort to forget, to not see, and to not hear. There are powerful societal and professional resistances against the confrontation of this problem. Most surveys done today among psychologists, psychiatrists and other mental health professionals have reported an incidence of sexual involvement with patients of around 5%-10%. The California Senate Task Force on this issue (California Legislature 1987) stated that "with 38,000 licensed mental health practitioners in the state, the incidence of sexual involvement with patients constituted "a public health problem" (p. 1). Sexual involvement with patients involves abuse and exploitation of the vulnerable and less powerful by the more powerful and less vulnerable. As in childhood incest, it is not necessarily the sexual act itself that causes the damage, but the violation of trust. As of 1990, all professional associations of health care providers specifically had addressed the issue of sexual involvement with patients and uniformly viewed such behavior as unethical. The American Psychiatric Association was the first medical specialty organization to focus attention on ethical issues in clinical practice and specifically on sexual misconduct. In 1973, the first edition of The Principles of Medical Ethics with Annotation Specifically Applicable to Psychiatry was issued. The 1989 revision (American Psychiatric Association 1989) includes sections relevant to this problem. Section I, Annotation J: The patient may place his/her trust in hi/her psychiatrist knowing that the psychiatrist's ethics and professional responsibilities preclude him/her gratifying his/her own needs by exploiting the patient. This becomes particularly important because of the essentially private, highly personal, and sometimes intensely emotional nature of the relationship established with the psychiatrist. Section 2, Annotation I: The requirement that the physician conduct himself/herself with propriety in his/he profession and in all the actions of his/her life is especially important in the case of the psychiatrist because the patient tends to model his/her behavior after that of his/her therapist by identification. Further, the necessary intensity of the therapeutic relationship may tend to activate sexual and other needs and fantasies o the part of both patient and therapist, while weakening the objectivity necessary for control. Sexual activity with a patient is unethical. Sexual involvement with one's former patients generally exploits emotions deriving from treatment and therefore almost always is unethical. Section 2, Annotation 2: The psychiatrist should diligently guard against exploiting information furnished by the patient and should not use the unique position of power afforded him/her by the psychotherapeutic situation to influence the patient in any way not directly relevant to the treatment goals. In 1990, the AMA House of Delegates adopted Policy 32.0045: On Sexual misconduct in the Practice of Medicine: It is the policy of the AMA that (1) Sexual contact or a romantic relationship with a patient concurrent with the physician-patient relationship is unethical. (2) Sexual or romantic relationships with former patients are unethical if the physician uses or exploits trust, knowledge, emotions or influence derived from the previous professional relationship. (3) Education o the issue of sexual attraction to patients and sexual misconduct should be included throughout all levels of medical training. (4) Disciplinary bodies muss be structured to maximize effectiveness in dealing with the problem of sexual misconduct. (5) Physicians who learn of sexual misconduct by a colleague must report the misconduct to either the local medical society, the sate licensing board or other appropriate authorities. Exceptions to reporting may be made in order to protect patient welfare. (6) It should be noted that many states have legal prohibitions against relationships between physicians and current or former patients. (CEJA Rep. A, 5-9; see also Current Opinions Section 8.14) The American Psychological Association's Ethical Principles of Psychologists (1981 [revised 1989]) included the following: Principle 6a: Sexual intimacies with clients are unethical. Principle 6d: Psychologists do not exploit their professional relationships with clients, supervisees, students, employees, or research participants, sexually or otherwise. Psychologists do not condone or engage in sexual harassment. In NASW Policy Statements: Code of Ethics The National Association of Social Workers (1980) specifically noted Section II, item 5: The social worker should under no circumstances engage in sexual activities with clients. Section II, item 4: The social worker should avoid relationships or commitments that conflict with the interests of clients. The American Association for Marriage and Family Therapy Code of Professional Ethics (1988) included Section 1.2: Marriage and family therapists are cognizant of their potentially influential position with respect to clients, and they avoid exploiting the trust and dependency of such persons. Marriage and family therapists therefore make every effort to avoid dual relationships with clients that could impair their professional judgement or increase the risk of exploitation. Examples of such dual relationships include, but are not limited to business or close personal relationships with clients. Sexual intimacy with clients is prohibited. Sexual intimacy with former clients for two years following the termination of therapy is prohibited. The Code for Nurses With Interpretive Statements (American Nurses Association 1985) included Section 3: The nurse acs to safeguard the client and the public when health care and safety are affected by incompetent, unethical or illegal practice of any person. Sexual involvement between nurse and client is both unethical and unprofessional. Regardless of theoretical orientation, a finding of negligent psychotherapy can result from failure to maintain clear treatment boundaries. Boundary violations include inappropriate extratherapeutic actions such as seeing patients outside of the regularly scheduled sessions or making sexually suggestive comments. Sexual involvement between a therapist and a patient is unequivocally unethical, illegal, and in some states, a criminal act that can result in years of litigation, censure from one's own professional association, loss of license, a jail term and severe financial, emotional and personal hardship to the professional and damage to the patient.

Focus on Ethics and Group Therapy:

There are no data on the incidence of sexual involvement among group therapy patients either during or subsequent to group therapy. Such involvements may expose the therapists of the involved patients to malpractice suits on the basis of negligent group psychotherapy. It is the therapist's responsibility to set and maintain clear group therapy boundaries. Patients who attempt to or actually violate these pose a major technical therapeutic challenge for any therapist. Specific techniques are needed for managing such patients, including obtaining consultation and referring the patient for individual therapy. Malpractice suits for negligent group psychotherapy may be difficult to win. However, the stress of a malpractice suit is extremely taxing on the involved professional causing major disruptions in one's personal, family economic and professional life. Finally, patients may disclose in the course of group therapy a sexual involvement with a prior or current therapist. The management of such disclosures presents specific technical problems. The therapist has to be knowledgeable about the applicable state laws and reporting requirements. Consultation with the professional ethics committee and/or an experienced professional in this area is strongly recommended. Such patients often go through very severe regressions with manifestations of abusive experience. In the absence of legally mandated reporting requirements, it is the patient's decision regarding what, if anything, to do about such experiences.

Confidentiality Issues:

confidentiality in clinical practice is one of the ethical duties of every practitioner or health care provider. Legally, confidentiality (i.e., the right to privacy) is a constitutional right of very citizen. In addition, there are specific statutes involving physician-patient privilege and, in most states, specific statutes dealing with psychotherapist-patient privilege.

Patient Records and Confidentiality :

In most states, there are specific statutes that govern access to medical or health care records or summaries of those records. These statutes include procedures for disclosure directly to patients, as well as reasons for denial of such disclosure requests. Usually patients who are denied access may designate a health care professional who can review the records. Therapists are urged to obtain legal consultation from their malpractice carrier in all cases involving requests for medical records, eve if it seems that there is proper patient authorization and/or court order for such release. In the past, there was considerable debate about keeping psychiatric records. Therapists felt that the best way to protect their patients confidences was by not keeping any records. Today, however, medical records are viewed as part of the standard of practice and are required. The record must document the need for care, the type of care, and the patient's response.

Problems of Boundary Violations and Multiple Agentry:

The psychotherapist-patient relationship is a fiduciary one. As a fiduciary the therapist knows that the patient's needs and interests take precedence over those of the therapist. However, there are situations where the therapist's allegiance to the patient is in conflict with demands from the institution or other professionals. This is a double-agentry situation. Until recently, therapists were not aware of how the organizational structure in which they work affects their professional function as clinicians. In the past, patients were seldom informed in cases of multiple agentry. However, the situations is rapidly changing. Double agentry conflicts are now recognized to exist in some practice settings (such as managed care) where economics and corporate policies, rather than clinical assessment and specific patient needs, dictate the type and level of care that patients receive. In addition, double-agentry conflicts are found in cases involving the duty to preserve confidentiality and the need of the practitioner to publish, as well as between service and research obligations. These are now handled with specific modifications and authorization by the patient or patients involved. Currently, special attention is focused on dual relationships with patients that represent a whole spectrum of treatment boundary violations other than sexual transgressions. Whenever the doctor-patient relationship is altered by the initiation of any other type of relationship with the patient or by the assumption of any other role vis-a-vis the patient, a boundary violation can result. There is a spectrum of boundary violations. Some are therapeutically required an justified for optimal patient care. Some are part of a pattern of multiple repeated violations, the slippery slope phenomenon, which often culminates in sexual misconduct. Examples of boundary violations include assuming the role of "real friend" in the patient's life by participating in the life of the patient outside of the therapy by attending dinners and social functions; lending a patient money; investing in a patient's business or having the patient invest in the therapist's business; entering in joint business ventures with the patient; revealing to the patient personal problems and traumas and disclosing feelings, particularly sexual feelings and arousal about the specific patient; and employing a patient on one's practice, to name just a few. When such transgression fulfills narcissistic needs of the patient or is part of collusive acting out it may take years for the patient to recognize the reality of the violation. The dynamics are similar to those seen in patients who have been sexually involved with their therapists. Damage to patients can be extensive. Denial, idealization of the therapist, and identification with the therapist, as well as other types of transference countertransference configurations, tend to make recognition of the transgression very difficult for both patients and therapists. Such recognition may take years. Studies on nonsexual transgressions are currently being reported by various professional organizations. The Ethics Newsletter of the American Psychiatric Association's Ethics Committee (1990a) included specific recommendations regarding boundary violations stemming from religious or ideological commitmet of the therapist. Namely, religious convictions and beliefs of therapists should not be presented as treatment recommendations but should be explicitly acknowledged as such. The American Psychiatric Association's Ethics Committee (1990b) also addressed some of the nonsexual boundary violations that result in exploitation of patients. Five different patterns were described: exploitation for financial reasons, exploitation for family reasons, exploitation for fame or notoriety, exploitation by "living through a patient," and exploitation by interpretation. Priorities need to be set when dealing with ethical dilemmas. The treatment needs of the individual patient may, at times, conflict with those of the group. The therapist has to be guided by the fiduciary and ethical duty to each and every patient, while at the same time ensuring the preservation of the safety and integrity of the group. Clinical skill and experience are the fruits of repeated trials in the clinical field.

Special Considerations in the Practice of Group Psychotherapy:

Members of therapy groups are vulnerable to abuse not only by therapists but also by other group members. Member-to-member exploitation is possible I the areas of sex, money, self-aggrandizement, and so forth. Members are protected from abuse by group therapists by the standards and laws discussed above. How they are protected from abuse by one another? There is no specific legal requirement for protection of the individual group ember from member-to-member abuse I group therapy. The usual legal requirements that apply to al forms of psychiatric treatment also apply to group therapy. Situations could arise when a group member could become violent and present a clear threat toward another specific group member or members. The clinical challenges of the Tarasoff requirements - the duty to warn and the duty to protect potential victims - present major treatment problems, particularly in the outpatient settings. Group therapy is no exception (For a full discussion of these issues, see Beck 1988.) The competence of the group leader is the best defense against member-to-member exploitation. The leader must have clear guidelines about permitted and prohibited member-to-member interactions. These must be explicitly communicated to group members and documented in appropriate records. When exploitative behavior arises, it must be pursued in the context of the therapy. If this behavior proves intractable, consideration must be given to terminating group membership for one or both parties engaging in such behavior. Appropriate consultation with colleagues, ethics committees, and legal advisors is strongly recommended. Careful and thorough records of all therapeutic interventions and consultations are essential. The basic governing principle is that of competent care. Group members cannot be protected from every risk of member-to-member exploitation, but it is essential that the group leader exercise and document due diligence and clinical judgement.

Patient Care Principles in Group Therapy:

Adequate record for each group therapy patient must be maintained. These records must contain The initial evaluation The diagnosis The indications for group therapy Documentation of informed consent of the patient for group therapy. Patients have to be informed that this is only one type of treatment among others and that other options may specifically be recommended on further evaluation during group therapy. A copy of each group therapy session summary. A quarterly clinical summary of the patient's progress. Reevaluation should be done and documented on every patient who fails to use the group therapy successfully after a reasonable period or whose conditions worsen significantly while in group treatment. Such reevaluation may include consultative discussions with colleagues and when appropriate, direct evaluation of the patient by a consultant. In view of the fact that specific psychopharmacological treatment is now available for a variety of psychiatric symptoms and conditions, patients should be informed that a consultation with a psychiatrist is indicated if patients either have a specific psychiatric diagnosis on entering the group or manifest symptoms suggestive of such diagnoses in the course of group therapy Billing practices should ensure that the name and qualifications of the therapist who actually runs the group treatment are stated, as well as the name and qualifications of the supervisor or director.

Conclusions:

The practice of group therapy requires that the therapist uphold all of the relevant ethics set by professional organizations and by law for medical and mental health professionals and reviewed in this chapter. In addition, the group therapist has the unique responsibility of exercising du diligence in protecting group members from injury and exploitation by one another. Both these areas, particularly the latter, are evolving rapidly, and the responsible group therapist must remain informed about current developments.

References:

American Association for Marriage and Family Therapy: Code of Professional Ethics. Washington, DC, American Association for Marriage and Family Therapy, 1988. American Medical Association: Current Opinions: The Council on Ethical and Judicial Affairs of the American Medical Association. Chicago, IL, American Medical Association, 1990. American Nurses Association, Committee on Ethics. Code for Nurses with Interpretive Statements. Kansas City, MO, American Nurses Association, 1985. American Psychiatric Association: The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Washington, DC, American Psychiatric Association, 1989, p 2. American Psychological Association: Ethical Principles of Psychologists. Washington, DC, American Psychological Association, 1981. American Psychiatric Association's Ethics Committee: Ethics Newsletter. Vol 6, No 1. Washington, DC, American Psychiatric Association, 1990a. American Psychiatric Association's Ethics Committee: Ethics Newsletter. Vol 6, No 2. Washington, DC, American Psychiatric Association, 1990a. Beck JC (ed): Confidentiality Versus the Duty to Protect: Foreseeable Harm in the Practice of Psychiatry. Washington, DC, American Psychiatric Press, 1988. California Legislature: Report of the Senate Task Force on Psychotherapist and Patients' Sexual Relations, prepared for the Senate Rules Committee, March 1987, Sacramento, CA, Joint Publications, 1987. Dyer, AR: Ethics and Psychiatry: Towards Professional Definition. Washington, DC, American Psychiatric Press, 1988. National Association of Social Workers: NASW Policy Statements Code of Ethics. Washington, DC, National Association of Social Workers, 1980.

Additional Readings:

Apfel R, Simon B: Sexualized therapy; causes and consequences. I Sexual Exploitation of Patients by Health Professionals. Edited by Burgess AW, Hartman CR. New York, Praeger, 1986, pp 143-151. Bergman MS: Platonic love, transference love, and love in real life. J Am Psychoanal Assoc. 30:87-111, 1982. Gabbard G: Sexual Exploitation in Professional Relationships. Washington, DC, American Psychiatric Press, 1989. Gartrell N, Herman J, Olarte S, et al: Psychiatrist-patient sexual contact results of a national survey. I: prevalence. Am J Psychiatry 143:1126-1131, 1986. Marmor J: Some psychodynamic aspects of the seduction of patients in psychotherapy. Am J Psychoanal 36:319-323, 1976. Person ES: The erotic transference in women and in men: differences and consequences. J Am Acad Psychoanal 13(3):159-180, 1985. Sanderson B (ed): It's Never OK: A Handbook for Professionals on Sexual Exploitation by Counselors and Therapists. St. Paul, MN, Minnesota Department of Corrections, 1989. Schoener G, Milgrom JH, Consiorek JC, et al (eds): Psychotherapists' Sexual Exploitation of Clients: Intervention and Prevention. Minneapolis, MN, Walk In Counseling Center, 1989. Stone AA: Sexual misconduct by psychiatrists: the ethical and clinical dilemma of confidentiality. Am J Psychiatry I40:195-197, 1983.

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