By Ofer Zur, Ph.D.
This page discusses the complexities that emerge when legal imperative creates dual relationships. It is also designed to ensure that California psychologists, MFTs, and LCSWs are provided with the relevant and most updated information regarding California law. (Please refer to the hotlinks below for California law.) While state laws vary, this discussion is likely to be relevant to all psychotherapists.
There are a number of legal imperatives that result in intrusion into or change of the clinical relationship. The most common settings in whichdual relationships are mandated by the institutions are the military and correction/prisons. Police work often involves mandatory multiple relationships. All reporting mandates, such as Tarasoff and child or elder abuse, introduce a legally mandated duality to the clinical relationship. The dual relationship occurs, in such cases, when therapists have a therapeutic relationship with their patient and, at the same time, have a legal and ethical responsibility to other people who are not patients.
Legally Mandated Dual Relationships in the Military, Correctional, and Police Settings
The most obvious situations where therapists have legal duty to the institutions and to the clients are the military and correctional facilities. The laws governing these institutions require psychotherapists who work within them to be continuously involved in dual relationship situations. What is unique about these structures is the fact that the psychotherapists’ primary allegiance is to the institution rather than to their actual clients they face in the consulting room. Military law mandates that military psychologists give higher priority to national defense, unit integrity, and combat readiness than to concerns with the welfare of the individual psychotherapy client (Johnson, 1995, 2011, 2015; Johnson & Johnson, 2017; Lazarus & Zur, 2002; Staal & King, 2000, Zur, 2007). Similarly, forensic psychotherapists who work in prisons and jails must give higher priority to matters of security (i.e., escape risk and violence) than to concerns with the welfare of their individual clients (Cervantes & Hanson, 2013; Ward & Ward, 2017). Police psychology also presents a complex and often unavoidable multiple relationship situation in which the psychologist may be concurrently involved in training, fitness-for-duty evaluations, consultation, hostage negotiation, and other roles (McCutchen, 2017; Zelig, 1988). These psychotherapists are employed by a city, county, state, or federal government, so needless to say, these mandated priorities often put them in difficult conflict-of-interest situations in which they may need to act in a way that may harm the client but serve the institution.
A very particular kind of military community can be found on small islands or heavily guarded military bases in foreign countries. The ultimate confined, inaccessible, and remote setting is that of an aircraft carrier. In this distant, confined, and highly regimented environment, therapists sleep, eat, play, conduct drills, undergo medical exams and drug testing, and entertain with, next to, or close to their past, current, and future clients (Johnson, Ralph, & Johnson, 2005). Gonzalez, a naval officer and psychologist, describes his experience right after September 11, 2001: “When our unit was mobilized a short time later, my patients and I became shipmates: the office was replaced with a ship and the couch with bunks. We were no longer doctor and patient, but comrades in arms with the common goal of national defense.” (Zur & Gonzalez, 2002, p. 315)
Active duty, military, clinical psychologists or psychiatrists fulfill dual roles as commissioned military officers and therapists or clinicians. In addition to these dual roles, therapists also have dual agency, bearing responsibility for and loyalty to their therapy clients as well as the military or the Department of Defense (DOD; Hines, Adler, Chang, & Rundell, 1998). Johnson (1995) described military psychologists as “serving two masters.” In fact, by military law, the DOD is the therapists’ legally defined client rather than the individual in the consulting room. Additionally, commanders have the authority to assign individuals under their command to seek mental health services or undergo an evaluation in accordance with military regulations (Johnson & Johnson, 2017; Staal & King, 2000). The result of such regulations is that military therapists have neither control over whom they consult or evaluate nor ways to prevent dual relationships and conflicts of interest. Military psychologists may find themselves in a perplexing conflict-of-interest situation in which they are mandated to evaluate their commander or superior for fitness for duty (Zur & Gonzalez, 2002). Because of the inherent duality in the military, obviously, informed consent should always be used. Clients in these settings must be fully informed of the potential eventualities that they may face as a result of engaging in the unavoidable dual relationship.
The focus of military and penal institutions on security and safety has resulted in laws that mandate therapists to cross the line of confidentiality in certain situations. Military law has the “need to know” clause, which refers to the right of a commanding officer to view or be privy to specific client information that is relevant to national security or combat readiness. Military psychologists, in fact, serve also as the DOD’s gatekeepers, being required to divulge private and sensitive information to superiors if it has a bearing on national defense and unit integrity (Johnson, 1995). Similarly, psychotherapists in prisons are part of the prison staff and, as such, are first and foremost concerned with issues of security. Any information that is revealed during psychotherapy sessions that may have bearing on security and safety must be reported to the prison authority. As members of the prison staff, therapists may be mandated to serve also as guards or even armed guards. As in the military, these dual roles can lead to ethical and clinical convolutions and conflict of interest, which therapists in the conventional therapeutic world seldom encounter.
Supervisory relationships involve inherent multiple roles and responsibilities and ethically, or what one may call legally mandated multiple relationships. Tensions may exist between the supervisor’s ethical, legal, and gatekeeping roles, which include: (1) enhancing supervisees’ growth and professional development; (2) protecting the clients; and (3) protecting future clients who may be treated by the supervisees (Abela,& Scerri, 2010; Barnett, 2008; Falender, 2017).
A number additional settings involved unavoidable, frequent and common multiple relationships include rural (Barnett, 2017), educational settings (Julius et al., 2017), and recovery-rehabilitation community (Silberstein & Lindsey Boone, 2017), among other communities.
An interesting and unique article by Clifton Mitchell, Ph.D., that addresses how “bureaucratic dual relationships” that are imposed by reporting and other laws or by institutions may influence clients’ resistance is available at Dual Roles and Resistance.
Examples Of These Situations And The Relevant Sections Of California Law where Psychotherapists Assume an Additional Role Beside Being Psychotherapists
Child, elder, and dependent adult abuse mandated reporting:
- In these situations, the therapist has, in addition to a therapeutic relationship with his/her client, a legal and ethical obligation to protect the child or any other potential victim.
- The California Penal Code, Sections 11164-11166, requires that mandated reporters, such as psychotherapists, make a report of child abuse whenever a “reasonable suspicion” of child abuse exists. A child abuse report is mandated whenever a therapist learns about the abuse in his or her professional capacity.
- Sections 15610 and 15630-15634 of the California Welfare and Institution Code require reporting of physical abuse, abandonment, isolation, financial abuse, or neglect of any elder or dependent adult under certain circumstances. A report is required if the therapist observes or has knowledge of the abuse or the patient reveals information about being abused.
- Types of child abuse: physical abuse, sexual abuse, neglect, willful cruelty, unjustifiable punishment, and unlawful, corporal punishment and injury.
- AB 525 (Chu) Child Abuse Reporting. Prior to January 1, 2007 the law authorizes but does not require the reporting of instances in which a child suffers or is at substantial risk of suffering serious emotional damage (“emotional abuse”). The new law, in effect on January 1, 2007, states that:
- “Emotional abuse” may be reported, but is not required to be reported.
- Confidentiality protections for mandated reporters also apply to those who report “emotional abuse.”
- Those who report “emotional abuse” are to receive the same feedback as they would when making a mandated report of child abuse upon a final disposition of a case.
- The law confirms the procedures for reporting of “emotional abuse” as certain existing procedures applicable to mandated reporting.
When a client reports having sex with a former therapist:
- In this situation, the therapist has, in addition to his/her therapeutic relationship with the client, an obligation to consider the welfare of other clients who may be harmed by the violating therapist.
- The California Business and Professional Code and the Civil Code (Section 43.93) discuss sexual exploitation of clients by therapists. In California, it is illegal for a psychotherapist to engage in sexual contact with a patient or former patient under any of the following circumstances: (a) during therapy; (b) within two years of termination of therapy; and (c) by means of therapeutic deception. (Psychotherapist-patient sexual contact by means of therapeutic deception is illegal.) Any therapist in California who becomes aware, from a patient, that the patient had a sexual relationship with a psychotherapist during the course of treatment has the legal obligation to give the patient the brochure entitled “Professional Therapy Never Includes Sex” and to discuss the brochure with the patient.
Tarasoff duty to warn situations:
- In these situations, the therapist has, in addition to the therapeutic relationship with the client, a legal obligation to consider the welfare of potential victims.
- California Civil Code 43.92 clarifies the Tarasoff Statute and states, with regard to the duty to warn, “where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.” In these situations, the psychotherapist’s duty is to make a “reasonable effort to communicate the threat to the victim or victims and to a law enforcement agency.” Failure to act may also result in potential civil liabilities.
- California Evidence Code 1024 states that there is no privileged communication if the therapist has reasonable cause to believe that the client is in such a mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.
- Important New Ruling regarding Tarasoff Mandated Reporting: In July 2004 a California Court extended the Tarasoff Mandated Reporting Standard. Ewing v. Goldstein is a recent California appeals court decision that extended the interpretation of the Tarasoff warning law. The court expanded the definition of Civil Code § 43.92 to “include family members as persons covered within the statute who, upon communication to a therapist of a serious threat of physical violence against a reasonably identifiable victim, would trigger a duty to warn.” The court states in Goldstein: “The intent of the statute is clear. A therapist has a duty to warn if, and only if, the threat which the therapist has learned – whether from the patient or a family member – actually leads him or her to believe the patient poses a risk of grave bodily injury to another person.” The expanded duty from now on applies to credible threats received from the patient, or the patient’s family; however, the court made clear that its decision did not go beyond “family members.”Information of the effect of the Ewing v. Goldstein decision on therapists’ reporting
Psychological Assistants and MFT or LCSW interns:
- In these cases, the law mandates a complex dual relationship in which the therapist has a supervisory obligation to the supervisee or intern and has a clinical, ethical, and legal responsibility to the clients seen by the psychological assistant, AMFT, or LCSW intern.
- The California Business and Professional Codes 2910/11/13 and 1387 cover the regulations for psychological assistants and 4980 discusses the intern status of AMFT. The codes clearly mandate the supervisor’s responsibility for the welfare of the supervisee’s clients, thus creating inevitable dual relationships as described above.
Court mandate to provide medical records:
- In these situations, therapists find themselves in dual relationships and often faced with incompatible dual obligations. They have clinical, ethical, and legal obligations to their clients and, additionally, legal obligations to the courts.
- California Evidence Codes 1014 and 1015 deal with issues of subpoenas. APA Ethics Code Standard 5.05 also covers the issue of disclosure. Generally, therapists are advised to first assert privileged communication on behalf of the patient and refuse to release information unless the client allows it. In the case in which a client either opposes the disclosure or it is obvious that it can harm him/her, the therapist is presented with a dilemma. Even if the therapist asserts privileged communication, the court may still demand the records. Unless you want to take the risk of being charged with contempt of court, you will have to release the requested information, which may place you in a very difficult conflict with your client.
California Laws And Regulations Relating to The Practice Of Psychology
The parts of California law most relevant to the topic of law and dual relationships and boundaries in psychotherapy and counseling are in the following
Business and Professional Code of California
- Psychologists: Chapter 6.6
- MFTs: Division 2, Chapter 13, Article 1-7, Sections 4980 through 4989.
- LCSWs: Division 2, Chapter 14, Articles 1-4, Sections 4990 – 4998.7.
For Regulations Online:
Business and Professional Code of California
Psychologists’ regulations
MFTs and LCSWs regulations
Professional Therapy Never Includes Sex. A brochure by CA Department of Consumer Affairs
The following Codes Of Ethics Apply To California Psychologists, MFTs and LCSWs:
American Psychological Association (APA)
California Association of Marriage and Family Therapists (CAMFT)
National association of Social Workers (NASW)
Special report and analysis of the different Codes of Ethics on Dual Relationships
References
- Abela, A & Scerri C. S. (2010). Managing multiple relationships in supervision: Dealing with the complexity. Chapter 14. In C. Burck, G. Daniel (Eds) Mirrors and Reflections: Processes of Systemic Supervision.
- Barnett, J. E. (2008). Mentoring, boundaries, and multiple relationships: Opportunities and challenges. Mentoring & Tutoring: Partnership in Learning, 16, 3-16.
- Barnett, J. E., (2017). Unavoidable Incidental Contacts and Multiple Relationships in Rural Practice. In Zur, O. (Ed.) pp 97-107 Multiple Relationships in Psychotherapy and Counseling: Unavoidable, Common and Mandatory Dual Relations in Therapy. New York: Routledge.
- Cervantes, A. N. & Hanson, A. (2013). Dual Agency and Ethics Conflicts in Correctional Practice: Sources and Solutions. J Am Acad Psychiatry Law 41:1:72-78
- Falender, C. A., (2017). Multiple Relationships and Clinical Supervision. In Zur, O. (Ed.) Multiple Relationships in Psychotherapy and Counseling: Unavoidable, Common and Mandatory Dual Relations in Therapy. New York: Routledge.
- Hines, A. H., Adler, D. N., Chang, A. S., & Rundell, J. R. (1998). Dual agency, dual relationships, boundary crossings, and associated boundary violations: A survey of military and civilian psychiatrists. Military Medicine, 163, 826-833.
- Johnson, W. B. (1995). Perennial ethical quandaries in military psychology: Toward American Psychological Association and Department of Defense collaboration. Professional Psychology: Research and Practice, 26, 281-287.
- Johnson, W. B. (2011). “I’ve got this friend:” Multiple roles, informed consent, and friendship in the military. In W. B. Johnson & G. P. Koocher (Eds.), Ethical conundrums, quandaries, and predicaments in mental health practice: A casebook from the files of experts (pp. 175-182). New York: Oxford University Press.
- Johnson, W. B. (2015). Military settings. In J. Norcross, G. R. VandenBos, & D. K. Freedheim (Eds.) APA Handbook of Clinical Psychology: Vol. 1 (pp. 495–507). Washington, DC: American Psychological Association.
- Johnson, W. B & Johnson, S. J., (2017). Unavoidable and Mandated Multiple Relationships in Military Settings. In Zur, O. (Ed.) Multiple Relationships in Psychotherapy and Counseling: Unavoidable, Common and Mandatory Dual Relations in Therapy. New York: Routledge.
- Julius A. et al., (2017). Multiple Relationships and Multiple Roles in Higher Education: Maintaining Multiple Roles and Relationships in Counselor Education. In Zur, O. (Ed.) Multiple Relationships in Psychotherapy and Counseling: Unavoidable, Common and Mandatory Dual Relations in Therapy. New York: Routledge.
- Lazarus, A. A., & Zur, O. (Eds.). (2002). Dual relationships and psychotherapy. New York: Springer.
- McCutchen, J. L., (2017). Multiple Relationships in Police Psychology: Common, Unavoidable, and Navigable Occurrences. In Zur, O. (Ed.) Multiple Relationships in Psychotherapy and Counseling: Unavoidable, Common and Mandatory Dual Relations in Therapy. New York: Routledge.
- Silberstein, A, & Lindsey Boone, L. (2017). Multiple Relationships in Recovery Communities.(pp. 130-140) In O. Zur, (Ed.) Multiple Relationships in Psychotherapy and Counseling: Unavoidable, Common and Mandatory Dual Relations in Therapy. New York: Routledge.
- Staal, M. A., & King, R. E. (2000). Managing a multiple relationship environment: The ethics of military psychology. Professional Psychology: Research and Practice, 31, 698-705.
- Ward, A. S. & Ward, T., (2017). The Complexities of Dual Relationships in Forensic and Correctional Practice: Safety vs. Care. In Zur, O. (Ed.) Multiple Relationships in Psychotherapy and Counseling: Unavoidable, Common and Mandatory Dual Relations in Therapy. New York: Routledge.
- Zelig, M. (1988). Ethical dilemmas in police psychology. Professional Psychology: Research and Practice, 19, 336-338.
- Zur, O. (2007). Boundaries in Psychotherapy: Ethical and Clinical Explorations. Washington, DC: American Psychological Association.
- Zur, O., & Gonzalez, S. (2002). Multiple relationships in military psychology. In A. A. Lazarus & O. Zur (Eds.), Dual relationships and psychotherapy (pp. 315-328). New York: Springer.