The law draws a horizontal line.
If every step you take while treating a client is on the line, or above it, the law absolves you from any blame. You can’t be held liable.
But if you take a single step below that line, the law points a finger directly at you. You can be held liable in court or disciplined by your licensing board.
The line is called the “standard of care.” It is all-important, but remarkably, no one knows exactly where it is. The law provides only the haziest of verbiage. In California, the standard of care is defined like this:
A psychotherapist or other mental health care provider has a duty to use a reasonable degree of skill, knowledge and care in treating a client, commensurate with that possessed and exercised by others practicing within that specialty in the professional community. Calderon v. Glick, 131 Cal.App.4th 224, 234 (2005).
In a nutshell, the standard of care is to do what other reasonable psychotherapists would do in any given situation. Or, given the diversity of opinions within the field on many points, to do what at least one reasonable psychotherapist would do. If no reasonable psychotherapist would do something, it is below the standard of care.
This “reasonableness” line cannot be mapped with GPS-type precision. In many cases, though, this is irrelevant. There are zones of consensus within the psychotherapeutic and legal communities as to things that are definitely below the standard of care.
Let’s take a real-life example. This is a case from the California Board of Behavioral Sciences, which oversees marriage and family therapists (MFTs), clinical social workers, professional clinical counselors, and educational psychologists in California.
An MFT was treating a couple, Mr. and Mrs. F. The MFT found Mr. F to be “angry and abusive” in his interaction with Mrs. F, and noted concerns about Mrs. F’s safety. She diagnosed Mr. F with major depression, and referred him to a psychiatrist and an anger management group, but never followed up on these referrals.
The MFT also had an ongoing friendship with Mrs. F. The MFT, who alternated between living in Pacific Palisades and Switzerland, three months at a time, apparently needed some help managing her affairs. Mrs. F would collect the MFT’s mail, make bank deposits, and do other chores.
The couple owned a cleaning business. In the fall of 2006, Mrs. F told the MFT that she suspected that her husband was having an affair with an employee. Mrs. F had been watching the business from home, through closed-circuit security cameras.
During a session with the couple, Mr. F admitted to the affair. He told his wife that he loved her and “needed help.”
For some reason, Mrs. F and the MFT decided to take direct action. They showed up together at the business, demanding to see the employee. The MFT claimed to be from “immigration.” On the surveillance video, the MFT is aggressively confronting the employee, cursing, and physically blocking her from leaving.
The confrontation ended with the employee driving away from the scene. Driving out, though, she “bumped” Mrs. F, who was eight months pregnant. Mrs. F was taken to the hospital, and was quickly released.
During the incident, the MFT told a customer, who was picking up cleaning, that Mr. F was having an affair. She also provided confidential information about Mr. F to one of his neighbors.
Where to begin? The Board of Behavioral Sciences (BBS) called this case an “extreme departure from the standard of care” on multiple grounds. These included the MFT’s violation of numerous ethical standards regarding professional boundaries, protecting clients’ well-being, and confidentiality. The MFT acted recklessly by placing the couple in an emotionally explosive situation.
Ultimately, the MFT surrendered her license. She also agreed that she could never petition the board for reinstatement.
Violating a law or regulation, or an applicable ethical precept, is clearly below the standard of care. That’s not the only way to fall below the standard of care, but it does virtually guarantee such a finding.
By the way, “below the standard of care” is the equivalent of saying “malpractice.” There are two ways to commit malpractice. You could do something intentionally which falls below the standard of care—for example, by having sex with a client. You could also act negligently, for example, by being careless with the security of your files, and having your clients’ identities and secrets exposed. In everyday terms, though, “negligence,” “malpractice,” and “below the standard of care” are often used interchangeably.
Many actions that are below the standard of care can not only lead to legal liability in court, they can also lead to disciplinary action by your licensing board. Licensing boards have specific statutory authority to take action against your license or registration, including by suspending or revoking it.
From the board’s perspective, the license under which you practice is not really “yours.” It is on loan from the state, and conditioned upon good behavior, competence, and adherence to laws and professional ethics.
To make sure you understand the complex legal and ethical rules that apply to you, as a practicing psychotherapist, take our comprehensive Law & Ethics Continuing Education (CE) courses.
These CE courses include lawyer-crafted model forms, tailored to the law of your state. They will help you avoid legal trouble. They will help keep you safe, far above the standard of care line.
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