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Competing Interests at the Boundries of Psychotherapy

Competing Interests at the Boundaries of Psychotherapy

The inevitability, pervasiveness, and complexity of competing interests in human interchange are exemplified by certain clinical and ethical dilemmas regularly faced by clinicians in the mental health field. Exploration of these dilemmas broadens our understanding of competing interests since, for the most part (with a few key exceptions), the interests at stake are not financial.

Maintaining Appropriate Boundaries in Clinical Practice

Two types of competing interests for psychotherapists and counselors have received growing attention in recent years. One is the very broad, multi-faceted challenge of maintaining appropriate boundaries in the therapist-patient relationship. Mention of boundary violations in psychotherapy usually calls to mind the most egregious of such transgressions—namely, sexual exploitation of patients by therapists. But boundary challenges arise in other areas as well, such as the time and place of therapy, bartering of services, gifts accepted or rejected, self-disclosure on the part of a therapist, physical contact short of sexual relations, and planned and unplanned out-of-office meetings. These questions play out differently for different kinds of patients, different therapy settings, and different schools of therapy. There is no simple list of forbidden acts to guide the conscientious practitioner through this thicket of complications. Boundary crossings in psychotherapy (which may or may not be found to be unethical boundary violations) are best understood not as presenting a choice of “Do” versus “Don’t,” but as a multitude of “maybes” and “depends on where, when, why, and with whom” (1-3).

If there is one point on which there is unanimity of reputable opinion, it is that having sexual relations with a patient is always unethical (4-6). Likewise, any clearly proven financial exploitation of a patient is unethical and usually illegal. At the other extreme are the inescapable and generally inconsequential boundary crossings that constitute the reductio ad absurdum of the current preoccupation with boundary maintenance. For example, some degree of self-disclosure is inevitable the moment the patient first walks into the office, and even more when the therapist begins to speak (3, 7). Realistically, some personal boundaries are crossed merely by the fact that two people are interacting with each other. Everything else lies between these extremes.

A guiding principle in managing the competing interests of patient and therapist is “Cui bono?” (For whose benefit?) But how does one decide what is in the patient’s best interest? A degree of clarity is provided at the outset by a therapeutic contract (oral or written, but always documented) that says, in effect, “These are the problems we’re going to work on. These are our goals, and this is how we will work toward them.” The contract, although no substitute for ongoing awareness of the dynamics of therapy, can help keep not only the patient but also the therapist on track. Decision-making guidelines have been developed to help clinicians negotiate the competing interests involved in multiple relationships with patients (8-10). Nonetheless, it is impossible to anticipate all the dilemmas that can arise; thus, there is no substitute for context-sensitive clinical judgment (3).

Treater-Expert Role Conflict

By contrast, the other, narrower area of competing interests explored in this chapter has thus far remained below the radar of public awareness, yet it offers a clear demonstration of competing interests and their potential consequences. I refer to the competing interests that arise when one combines clinical and forensic roles by testifying as an expert witness in a legal proceeding having to do with a person one has treated as a patient. Whereas reasoned consideration of other boundary questions has been hindered by sensational publicity, the consequences of crossing the boundary between clinical and forensic involvement with a particular case have received, if anything, too little attention.

Many mental health professionals provide both clinical and forensic services—but not for the same client. Forensic specialists, who understand the dynamics of this situation, are especially unlikely to take on this dual role.

Psychotherapists do testify in court about their patients, but they do so properly as fact witnesses. As a fact witness, the therapist gives a factual account of what took place in therapy, including his or her observations and impressions. That is very different from testifying to an expert opinion held “to a reasonable degree of medical/psychological certainty.” Anyone who is deemed to have relevant factual information (such as a witness to a crime or accident) is presumed to have a civic duty to testify and can be subpoenaed to appear in court. A fact witness is not paid to testify. By contrast, an expert witness is retained—and paid—by counsel for one of the parties in the case to testify voluntarily. Deriving more than one form of income from a patient sets up a competing interest that may work against the patient’s interests in therapy. Another competing interest arises when a therapist testifies in the expectation of being paid for future therapy out of a legal damage award or settlement that may result from the therapist's testimony. That amounts to a contingency fee that compromises the objectivity and reliability of the testimony.

These competing financial interests, however, are less consequential than differences in process and perspective that make the clinical and forensic functions virtually incompatible. The clinical and forensic roles entail very different ways of understanding a person—empathy versus objectivity.

Numerous commentators have cautioned against acceptance of this particular form of competing interests (11-18). Instead of bringing people before ethics boards, a non-punitive way to discourage this practice is simply to clarify the rules of evidence so that expert testimony from treating clinicians will be held inadmissible, except when in the judgment of the court there are compelling reasons to admit such testimony.

Implications

This brief survey of two kinds of competing interests that mental health clinicians face yields a mixed picture. It appears that one area is overregulated, the other underregulated. A large and complex set of questions, ever-present in daily practice, is treated as if it could be mastered by simple rules, or lists of forbidden acts. Meanwhile, a relatively clear-cut pitfall, one amenable to straightforward restraints, is left largely unexamined (except by specialists whose warnings have as yet had little effect).

Regulatory structures and mechanisms have arisen piecemeal, sometimes as ill-considered reactions to perceived abuses, rather than systematically or with foresight. Here as elsewhere, it is a considerable challenge to manage competing interests that inevitably arise. Contrary to what we might wish, there can be no panacea. Clinicians and patients, supervisors and supervisees, practitioners and licensing boards, human-service agencies and staff members, attorneys and expert witnesses, and judges and legislators must work out these issues as they emerge at a given time and place.

Applications of boundary dilemmas to other professions are a subject for further exploration. Absent the intensely intimate interchange and deep personal vulnerability that characterize psychotherapy, to what extent must the same boundaries be respected by others who hold fiduciary responsibility? In these areas, as in those discussed more fully above, “mechanistic litanies of forbidden acts are not as useful as careful case-by-case evaluation and reasonable, flexible application of guidelines aimed at preventing situations of potential harm” (3, p. 280). Competing interests are unavoidable in human interchange. They call for responsible, realistic judgments about where to maintain clear boundaries and where to make pragmatic accommodations to complexities that we cannot legislate away.

References:

1. Dewald, P. A., & Clark, R. W. (2001). Ethics case book of the American Psychoanalytic Association. New York: American Psychoanalytic Association.

2. Epstein, R. S. (1994). Keeping boundaries: Maintaining safety and integrity in the psychotherapeutic process. Washington, DC: American Psychiatric Press.

3. Gutheil, T. G., & Brodsky, A. (2008). Preventing boundary violations in clinical practice. New York: Guilford Press.

4. Samuel, E. S., & Gorton, G. E. (2001). Sexual exploitation: An extreme of professional deception. American Journal of Forensic Psychology,18, 79-87.

5. Simon, R. I. (1994). Transference in therapist-patient sex: The illusion of patient improvement and consent, Part 1. Psychiatric Annals,24, 509-515.

6. Smolar, A. I., & Akhtar, S. (2002). Why no sex? American Journal of Psychotherapy,56, 260-261.

7. Farber, B. A. (2006). Self-disclosure in psychotherapy: Patient, therapist, and supervisory perspectives. New York: Guilford Press.

8. Gottlieb, M. C. (1993). Avoiding exploitive dual relationships: a decision-making model. Psychotherapy (Chic),30, 41-48.

9. Sonne, J. L. (2005). Nonsexual multiple relationships: A practical decision-making model for clinicians. Retrieved August 15, 2007, from http://kspope.com/site/multiple-relationships.php.

10. Younggreen, J. N. (2002). Ethical decision-making and dual relationships. Retrieved May 13, 2007, from http://kspope.com/dual/younggren.php.

11. Bush, S. S., Connell, M. A., & Denney, R. L. (2006). Ethical practice in forensic psychology: A systematic model for decision making. Washington, DC: American Psychological Association.