Practical Suggestions for Legal Protections

Categories: RECENT RESEARCH

Basyle Tchividjian & Diane Langberg

*This article originally appeared in the Vol. 17, No. 3 issue of Christian Counseling Today magazine, a quarterly publication of the American Association of Christian Counselors (www.AACC.net).

A psychologist is accused of having sex multiple times with one of his female patients and billing her insurance company $1,400 for “sessions” according to records from the Florida Department of Health. — Associated Press (February 2010)

Headlines like these are becoming all too common in the world of counseling. Sadly, professing Christian therapists are not immune from charges of having inappropriate relationships with clients and/or former clients. This type of behavior can result in irreparable damage to clients, the testimony of Christ, and the life of the accused therapist. During my legal career, I (Basyle) have both represented and prosecuted therapists who have been accused of inappropriate activities with patients. These cases provided me with extremely valuable insight, which I pray can assist Christian therapists exercise wise judgment and discretion in such a critical and much needed profession.
Recent statistics show that approximately 4.4% of therapists report having engaged in sex with at least one client. Between 88-92% of sexually exploited clients are women, and one out of 20 victims is a minor. These startling statistics are undoubtedly low because they do not take into account clients who have not reported abuse or therapists who refuse to admit such abuse. Furthermore, these statistics only measure behavior related to sexual activity and not the myriad of other inappropriate behaviors that occur between a therapist and client. The major point is that the first step in learning to exercise wisdom in your own practice is to acknowledge the prevalency of therapist abuse in today’s society.
Before going any further, if you’re a therapist who is engaged in an inappropriate relationship with a client or struggling with the temptation to do so, it is critical that you seek help immediately. Every state has a “hotline” available for therapists who are in need of immediate assistance. Use it.
State licensing boards, civil courts, and criminal courts are the primary means by which therapists can experience irreparable damages. Not too many years ago, I (Basyle) prosecuted a local psychiatrist (a.k.a. “Dr. M”) who had been charged with engaging in a sexual relationship with his client. Though he was eventually found “not guilty” by a criminal jury, his life was devastated as a result of his actions. Being involved with Dr. M’s case allowed me to witness the interplay and impact of all three of these legal methods.

Licensing Board
Most states require a mental health license in order to be titled and officially function as a professional therapist. Just like a driver’s license, a mental health license can be revoked if the appropriate licensing board finds that a therapist has violated certain behavioral standards. A revocation proceeding is usually initiated by a complaint, which can be filed by any member of the public. Depending upon the severity of the finding, a revocation can be temporary or permanent. Mental health professionals can also be formally reprimanded and required to obtain additional training, education, and/or supervision. Shortly after Dr. M had been criminally charged, a complaint was filed with his state licensing board. The board found sufficient evidence to permanently revoke Dr. M’s mental health license. Thus, even though he was acquitted of the criminal charges, the revocation of his license permanently ended Dr. M’s career as a doctor and therapist.

Civil Courts
The civil court system allows individuals to hold therapists liable for monetary damages as a result of intentional acts and/or negligence. A negligence action is when the therapist is found to have breached the “duty” owed to the patient. In most states, proving such a case only requires a preponderance of the evidence and, thus, is not difficult to establish. Also, it is important to note that the outcome in a criminal case has no relevance to a companion civil case. Though Dr. M was eventually acquitted in criminal court, he was subsequently sued in civil court. That case resulted in a significant financial settlement for his abuse survivor.

Criminal Courts
Each state has criminalized certain inappropriate behaviors by therapists. For example, Dr. M was charged with felony sexual misconduct by a psychotherapist, which carries a penalty of up to five years in state prison. The law increases the penalty to 15 years if the prosecutor can establish that the therapist convinced the patient that the sexual relationship was part of the treatment. In addition to a prison sentence, a conviction for this type of crime will likely result in the revocation of a practice license and an end to one’s career.

Therapeutic Concerns
The therapeutic relationship is professional; therefore, sexual contact in any form is not permitted. Such boundary crossing behavior carries within it an imbalance of power. Power is simply the ability to make something happen. It is the capacity to have impact or influence. The word suggests some sort of energy used to make something else occur. All of us have power. Power is not a fixed trait; it varies with context. If you render psychological services to others, in the context of that relationship and position of authority, you have more power.

The client is the vulnerable party and, therefore, susceptible to injury. Whenever power is used in a way that wounds the vulnerable or exploits trust, abuse occurs. The word abuse basically means to wrongly use or mistreat. When a person with power uses another for his own ends, abuse occurs—the shepherd has used his sheep for food.

It is important to note that the one who has power does not always feel powerful. You can hold tremendous power and not feel powerful. You can feel tired, needy, weak and even powerless and, yet, still wield tremendous power. Anyone who has parented small children can recall the days when they felt tired, needy and weak but, regardless of that feeling of vulnerability, still realized they had the power to damage their small children. Fragilities and weaknesses do not necessarily remove our power at all. They do, however, make us more likely to use power destructively. The weaker and needier we feel, the more dangerous we usually are in any position of power because we are far more likely to use the sheep under our care to emotionally or relationally “feed” ourselves. Those who feel powerless or inadequate often abuse power.

There are many different kinds of power. The most obvious, of course, is physical power. The bigger and stronger have power over the smaller and weaker. Physical power can also take the form of charismatic presence rather than size.
A second kind of power is verbal. This is a very important one for us to deal with as counselors. Words are the tools of the trade. People who have a command of words, or are articulate, can dominate a conversation, a room, a relationship, or a group. We often use words to sway others or move them toward what we want. Words can be used to humiliate, deceive, maneuver, and control. Words have the power to move large numbers of people. Think of yourself sitting with a suicidal or homicidal client, scrambling in your mind for the words that will give hope or restrain so that a life can be protected from harm… or using the right words to infuse life into a disintegrating marriage. Think, also, of times when you have used words to titillate, condemn, or shock because it met some need in you and served you in some way. Verbal power is a tremendous power!

A third kind of power is emotional power. People can wield that kind of power by their moodiness or sensitivity. Therapists have great emotional power, often bringing to others things they long for such as comfort, empathy, or hope. Emotional power bonds people together.

Knowledge and skill can also be a kind of power. If one knows more or has more skill in something, then he or she potentially has more power in that arena. Those with a theological degree may have “theological power” over others. It is assumed that they know more and are given the right to tell the rest of us what is true. Several people have “psychological power.” Not only do they have knowledge that others do not, but that knowledge can also include the power to maneuver, manipulate and play on the emotions of others. Many of us experience this imbalance of power regarding knowledge when we are ill and need to rely on physicians to tell us not only what is wrong, but also how to fix it. More often than not, it is a vulnerable feeling.
Finally, there is the power that comes with position. Position can be literal, such as the position of president, pastor, therapist, or parent. Position also extends to the power of reputation or status. Those who are determined by others to be brilliant or godly or successful are accorded power by others by virtue of the power of their reputation. A therapist holds the power of position in the counseling relationship.

Often, multiple kinds of power are combined in one person. Position, combined with a large and/or dynamic physical presence, verbal skill, knowledge, and the capacity to sway people emotionally is a phenomenal combination. For example, let’s take an energetic, articulate male with emotional sway and psychological knowledge, put these dynamics together in the position of counselor, and put him in a room with a female client (usually less powerful both physically and in position) whose struggle or pain has rendered her somewhat inarticulate, vulnerable, and uncertain, and you have a setup for an abuse of power. Words, knowledge, skill, position, and emotion can all be used in concert to control or convince another human being who is vulnerable.

A weary therapist with personal struggles that are untended can easily begin to use a client for emotional sustenance, and it does not take much for that subtle change in the relationship to end up in a sexual place as two hungry, broken humans look to each other for food. The client feels “special” and is vulnerable; the weary therapist has power (unfelt) and has become a shepherd who uses his sheep for food. Many lives have been shattered by this scenario.

Avoiding the Pitfalls
By now, you may be wondering how a therapist can avoid such devastating legal and professional pitfalls. Here are just a few suggestions:
1. Do not engage in an inappropriate relationship with your client. Remember, this is a professional relationship that is built upon a rare, but valued, commodity… trust. Any remark, activity, or counsel that may compromise that trust is most likely inappropriate. If in doubt, obtain the immediate opinion from both the state licensing board and a trusted, mature Christian peer.

2. Become well acquainted with the laws and regulations that relate to psychotherapists. This can be accomplished through continuing education courses, AACC conferences, and staying current on certain publications and books such as Peter Jenkins’ Counseling, Psychotherapy and the Law.

3. Be proactive in protection. There are certain measures a therapist can implement that will minimize the opportunities for allegations of inappropriate behavior. Here are just a few suggestions that you should consider:

• Always take notes during therapy sessions—this can be used to refresh your memory about a particular session that may be the basis of a future complaint.

• Make every effort to have a secretary, office manager, or another counselor present in your building/office suite when you are meeting with a client, especially if the client is of the opposite sex. All of the allegations against Dr. M involved sexual improprieties when he was alone with the victim at his office building. Such claims are almost impossible to refute.

• For each session, require your secretary/assistant to document the identity of each client and the exact time each session begins and ends. Also, request that the assistant has some form of contact with the client before they leave the office. This will document critical information that could be very helpful if an allegation is ever made.

• Talk with staff on a regular basis about the importance of taking these types of proactive, protective measures. This will keep these issues on everyone’s radar screen and raise the overall awareness of protection within your office.
Make yourself accountable and seek supervision of some kind in your own counseling when you find yourself struggling personally.
Finally, and perhaps most importantly, make sure that you have an “open door” policy and allow others in your office to express any concerns they may have regarding your own behavior with clients. Sometimes others observe in us what we cannot (or don’t want to) observe in ourselves. Allowing such freedom could very well prevent irreparable damage to your clients and yourself.

As Christians, our desire to exercise wise judgment and discretion should not be motivated by fear of prison, a lawsuit, or a revocation of our license. Our ultimate motivation must be for the glory of Jesus Christ, who is the ultimate example of a great and perfect counselor. God has given each of us the privilege of serving Him through the service of those precious souls walking through troubled times. May we pray without ceasing for His wisdom and strength in carrying out this most trusted responsibility.

Basyle (Boz) Tchividjian, J.D., is the executive director of GRACE (Godly Response to Abuse in the Christian Environment – www.netgrace.org) and a professor of law at Liberty University School of Law in Lynchburg, Virginia. Prior to joining the faculty at Liberty, Professor Tchividjian spent years as a sexual crimes prosecutor and in private practice in central Florida.

Diane Langberg, Ph.D., is a licensed psychologist with Diane Langberg & Associates in Jenkintown, Pennsylvania, and chairs AACC’s Executive Board. She is also the author of Counseling Survivors of Sexual Abuse and On the Threshold of Hope.