|APA Ethics Committee Considered Prohibiting Solo Practice
Martin H. Williams, Ph.D.
Now that I’ve gotten your attention with this sensationalistic title, let’s talk about the Ethics Code, the Ethics Revision Task Force, and the need for independent practitioners to have better protection against unfair licensing board and civil actions against them. By the way, the above title, which is admittedly sensationalistic, is also an accurate statement of fact. It refers to something that was considered about twenty years ago. Here is a quotation from Koocher and Keith-Spiegel’s authoritative Ethics in Psychology 2nd Edition (1998 New York: Oxford University Press):
"During an APA Ethics Committee meeting in the early 1980's, we noted that the majority of cases involving boundary blurring (including sexual ones) occurred among therapists who maintained individual practices, often in isolated offices away from other mental health professionals. Sometimes, the setting was the therapist's own home. THE COMMITTEE SERIOUSLY DISCUSSED THE FEASIBILITY OF DECLARING SOLO PRACTICES "UNETHICAL." [emphasis added] Although we quickly recognized that such a mandate could neither be enforced nor withstand legal scrutiny, it seemed clear enough that something about therapists either choosing to work in isolation, or the isolating conditions themselves, fostered the clouding of professional standards of care. (p. 176)
I came across this quotation completely by accident while looking something up, and I was shocked and horrified. Here was an authoritative ethics text calmly informing readers that the APA Ethics Committee, in the interest of protecting consumers, actually considered putting many of us out of business. I had not previously been aware that this had been afoot, and I knew of no one in the trenches of private practice who had known about this. What was even more upsetting was the language, which stated that only the difficulty of enforcement and legal scrutiny stood in the way of implementing the prohibition. Clearly, the APA Ethics Committee, at least in the early 1980’s, had a very different agenda than furthering the independent practice of psychology.
My coming across this quotation when I did was fortuitous. It inspired me to think long and hard about the new APA ethics code. The APA Ethics Revision Task force has been meeting and hopes of having a revised version of the Code by 2001. From my experiences testifying before licensing boards and in civil court, I have developed convictions regarding what a revised Code should look like. My convictions are based on my bias as an independent practitioner and as an expert witness who has seen up-close and personal all the damage that can befall my peers once they enter the meat grinder of the civil and licensing board systems.
My view is that the Code must be revised in such a way as to further protect us, not further hurt us. I believe that the Code has, for many years, bent over backwards to protect consumers from us. Now it’s time to add a little balance back into the Code and make it protect us from litigious consumers and their attorneys. Keep in mind that in the hopes of earning 33-40% of the settlement, a civil litigation attorney will make use of each and every word in the Code that makes you or me appear to have acted with negligence. Once a case is turned over from a state board to a deputy attorney general, that deputy attorney general has only one goal-to win. In the service of winning, the deputy attorney general will, like the plaintiff’s attorney, make use of any and all language in the Code that will support his or her quest for victory. For the uninitiated, there is often little in this process that resembles the pursuit of justice. Our legal system is based on the premise that if each side tries as hard as they can to win, justice will be the outcome. In the case of allegations against us, I do not feel that justice is always what is achieved. The APA ethics code, which guides much of the civil and board actions against us, is overwhelmingly biased in favor of the consumer-accuser and against the psychologist-respondent-defendant.
The APA needs to take responsibility for this. It has been many years since the Code was simply an internal APA document to be used by its members to guide their decision-making, and by their Ethics Committee to guide enforcement. Now, the Code is one of the primary business exports of the APA, fueling an ever-growing malpractice industry. Claims against us have soared, and these claims often involve us in both civil and board litigation. After all, a successful board verdict for the plaintiff can be taken right into civil court to help ride the bandwagon to a hefty civil payoff. We need to very carefully examine each and every word of the Code, just as attorneys do, and ask ourselves whether we want to continue to offer to the public a document than can so effectively hurt or destroy any one of us in court.
I believe the revised Code must be fixed, and this repair should include: 1) stripping the Code of adverse opinion statements, 2) allowing no new prohibitions to enter the revised Code, 3) adding a list of behaviors which are permitted (to help protect us from overzealous attorneys and their expert witnesses), and 4) including a new set of ethical standards that will specifically protect us from being abused and mistreated by psychologists who serve on, and testify before, licensing boards.
Here is an overview of my personal wish list for the revised Code:
- Opinion Statements: In at least two areas of the Code something is not exactly prohibited--in fact, it is permitted--but the Code includes a tainting statement of negative opinion about the practice. Multiple relationships and barter are two examples. This opinion-language has the effect of making any licensing board respondent or civil court defendant look tainted as he or she begins an effort to defend having engaged in these "permitted" practices.
For example, regarding barter the Code states, "Psychologists ordinarily refrain from accepting goods, services, or other nonmonetary remuneration from patients or clients in return for psychological services because such arrangements create inherent potential for conflicts, exploitation, and distortion of the professional relationship" (1.18).
Think about trying to defend the decision to engage in barter with a patient. You would need to explain why you set aside the recognized potential for conflicts, exploitation, and distortion of the professional relationship. Keep in mind, too, that you would only be trying to defend barter if a complaint had been filed against you. This means there probably is a consumer who feels exploited by your behavior. According to the Code, this behavior is well known to lead to exploitation, yet you elected to do it anyway.
You are in a position of trying, probably fruitlessly, to justify the decision you made. Of course, everyone in the court will have the benefit of hindsight in evaluating your, by now, obviously wrong decision to engage in barter. You did not have hindsight to help you at the time. Instead, you probably had a perception of mutual goodwill between you and your now alienated patient.
Thus the Code foolishly permitted something and then slurred it so badly that you really cannot reasonably defend your actions in court. One of two things should be done: Either absolutely forbid all behaviors which are slurred or tainted in the Code, such as barter or multiple relationships, or stop inserting the slurring language into the Code. In my view, both barter and multiple relationships are, at times, either beneficial to patients or unavoidable. These behaviors need not be slurred in the Code, since the Code already contains language opposing all forms of exploitation. The Code should be revised with the following logic: If it’s not forbidden, it’s permitted, and anything that is permitted shall not be slandered with tainting and slurring language in the Code.
- The Code should have no new prohibitions added. The August Monitor, on page 44, ran a list of seven new items that the Revision Task Force is considering added to the Code. Each of these items either adds a new prohibition, adds a taint to something that is permitted, or extends a prohibition. For example, there are proposals to extend the scope of individuals at training institutions who should be prohibited from sexual involvement with studentseven if they are not direct teachers or supervisors. There is a proposal to regulate when therapists have clients simultaneously in group and individual therapy assuming that there is a greater potential for exploitation as it can create role confusion, impair objectivity, and be exploitative.
I personally cannot fathom what is behind this push to provide more fodder for lawsuits and license revocations. Has there been a documented problem with group and individual therapy patients having been exploited and abused, and a problem with sexual involvement with individuals who do not have a direct teacher-student relationship? Are these problems so widespread and endemic that simply punishing offenders on a case-by-case basis would be ineffectual?
I think not. With the far-reaching, general, anti-exploitation language of the existing Code, how could we possibly need more statements of specific admonitions? Does the APA membership now believe, by the way, that anyone who is a faculty member at a professional school or university in the same department as a student, and who might be at a meeting at which the student might be evaluated, will naturally be at risk to exploit that student should they be involved sexually? Does no one have any concern about the increased restriction on the civil rights of APA members to form associations of their choosing? Therapist-patient sex is one thing, but now a much wider range of potential dyads have been, by fiat, defined as exploitative. I joined the APA with no intention of giving up a wide range of my civil rights. Is not this anti-sex hysteriawhich began with legitimate concerns about exploited patientsnow getting out of hand?
Similarly, what is the issue with having the same patient in group and individual therapy? Why doesn’t the APA have the presumption that if we are providing more avenues of treatment for a patient, it is happening because we are trying that much harder to help that patient? What is the source of this exploitation paranoia? Note that simultaneous group and individual therapy is not prohibited in the proposed new language. It would merely be tainted by the proposed language, making the defense of such behavior nearly impossible.
- Permitted behaviors: In my experience in court, I have learned that certain perfectly legitimate therapeutic techniques have been presented as unethical by plaintiffs’ or boards’ experts. For example, self-disclosure is a very widely practiced aspect of psychotherapy. In fact, depending on how broadly one defines self-disclosure, it is nearly universal. Nevertheless, it is not uncommon in court to hear plaintiff’s and board’s experts asserting that negligent self-disclosure on the part of the accused caused a breakdown of boundaries and was unethical. One now hears this even in cases that do not involve accusations of sexual misconduct.
I recommend that the Ethics Task Force take all of these perfectly legitimate behaviors, such as self-disclosure, non-sexual hugging, non-sexual touching, and non-sexual fraternizing outside of sessions and clearly state that they are not unethical in and of themselves. This would protect our innocent and blameless members who choose to use some of these behaviors in the furtherance of treatment and not as part of any seductive agenda. Possible language might include: "Self-disclosure, non-sexual touching, non-sexual hugging and non-sexual fraternizing outside of sessions may be legitimate aspects of psychotherapy and are not themselves unethical." Inserting this language would certainly slow down the burgeoning malpractice lawsuit industry while providing some balance to those members who have been wrongly accused of behaviors that look bad but are not.
- Board practices: State licensing boards are significant consumers of the APA ethics code. In some states, the Code has the force of law. In this context, the APA has a duty to pay attention to how the Code is used in the real world. It is applied fairly? Is it applied in a context of due process protections?
Sadly, in the case of many licensing boards, the Code is not applied in the context of due process. For example, board investigators can go on fishing expeditions, starting with a complaint about a single area of practice and then looking at all the records of that practitioner until additional causes of action are discovered. How many of us could open up all our treatment records and not have an investigator for the board find something that could be made to appear as negligence?
Or, a psychologist-respondent will arrive on the day of the board hearing having no idea of what the testimony against him or her will be. Unlike civil court, licensing boards provide no right of discovery. The accused cannot take depositions of opposing witnesses to help the accused prepare the defense. In fact, the accused may not be allowed to discover who the witnesses will be.
The problem gets worse. With many licensing boards there is no statute of limitations. How can one prepare a defense based on events which occurred years ago and for which exculpatory records and witnesses may be unavailable? Finallyand this could be the worst problem of allthe respondent may not even reap the benefits of a successful outcome to the licensing board hearing. In the case of many boards, the decision of the Administrative Law Judge is not binding on the board. Thus, you might put up your defense in an adversarial climate, pay thousands of dollars for attorneys and expert witnesses, win your case with the judge allowing you to remain in practice, only to get a letter from the board telling you your license is revoked.
Here are some remedies that might be incorporated into the revised Code. These remedies build right into the Code an awareness of the regulatory end use to of the Code. These remedies would make it unethical to deny due process rights to psychologists: sychologists who serve on state boards of psychology shall require these boards to provide due process protections to psychologists who have been accused of malpractice. Such protections shall include but not be limited to: right to depose witnesses (right of discovery), right to limit investigation to only those matters of which one is accused (no fishing expeditions), right to a reasonable statute of limitations, and the right to have a successful hearing outcome be binding on the board.
- Psychologists shall ensure that the state boards on which they serve shall prevent their prosecutors--typically deputy attorneys general, from engaging in a practice of intimidating defense experts with threats against those witnesses own licenses, either overt or implied.
- Psychologists shall shall ensure that the state boards of psychology on which they serve shall not decide to retain expert witnesses based on experts’ prior support for the board’s accusations. Keeping track of an expert’s percentage of supporting or not supporting the board’s accusations for the purpose to deciding to retain an expert in the future is unethical because it prevents experts from developing their own testimony, free from financial pressure.
- Psychologists who serve on state boards of psychology shall be responsible for the ethical practices of the deputy attorneys general who prosecute the board’s cases. It shall be the board’s members’ responsibility to protect the accused psychologist from the use of unfair legal tactics. One example is the board’s proffer of license revocation as a negotiating tactic to persuade the accused to accept lesser sanctions.
Conclusion: Some readers may find my viewpoint surprising. They may believe that the Code has given our profession credibility by ensuring the consumers of our services that we are bending over backwards to protect them. Some readers may, in fact, find my viewpoint very much biased towards defending bad psychologists. Some may believe that only those who have done something wrong are accused and only those who deserve sanctions, get sanctions. They may believe that "where there’s smoke, there’s fire," and they may be loathe to help let the bad apples continue to rot the entire barrel.
I respect those who disagree with me, but I fear that they may be examining the Code in a vacuum. I have gleaned a great deal of clinical and practical wisdom from reading and rereading the Code. At the same time, I ask those who fail to appreciate my fears over the Code’s misuse to spend some time in court. Go to regulatory board hearings in your state, or to civil court. Find out for yourself what takes place when a psychologist’s practice is put on trial. Then you will see the end-use of the Code, and you will see how it is interpreted and explained to jurors. When you have witnessed all this, you will be in a better position to decide if the present and proposed Code is really what our struggling profession now needs. Finally, if you agree with me, send a letter to the Ethics Revision Task Force.