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The Curse of Risk Management |
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Professional Practice |
Martin H. Williams, Ph.D. |
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Psychotherapists are inundated with risk management advice. Numerous continuing education courses, bulletins from malpractice carriers, and articles in journals and professional publications (e.g., Koocher, 2002) urge practitioners to curtail those practices and behaviors that might result in lawsuits or licensing board complaints. The conscientious practitioner carefully considers the potential risk of any therapeutic maneuver, lest he or she mistakenly cross a line and provoke a lawsuit. Unfortunately, risk management has several serious drawbacks. The present purpose is to elaborate these drawbacks and to expose that the seemingly helpful practices of risk management may have a harmful dark side. As I have discussed elsewhere (Williams, 2000), the actual likelihood of a lawsuit or licensing complaint for any given practitioner is very low. Because these high cost events are unlikely ever to occur in a given practitioner’s career, the stage is set for psychotherapists to engage in various superstitious behaviors. Hence, the therapist who curtails hugging his or her patients, for example, may well believe that this risk management decision will have prevented a lawsuit over the course of his or her career. In fact, that psychotherapist may never have been sued regardless of whether or not risk management changes were made to his or her practice. Many psychotherapists who currently believe that they are protecting themselves with risk management restrictions to their practices may be doing nothing more effective than throwing salt over their shoulders. Because the likelihood of a suit is so low, and because the risk management rhetoric is so prevalent these days, one may be too easily convinced that risk management is highly effective. Risk management behavior, like all phobic avoidance behavior, becomes its own reward—convincing the phobic individual that the avoidant behavior (e.g., the flight phobic individual’s not getting on the airplane) has averted catastrophe. One might wonder, parenthetically, why risk management has become so popular when the likelihood of litigation was, and remains, rather low. One reason for its popularity is that, while the likelihood of complaints and suits is low, the cost of such actions—professionally, emotionally and financially—can be astronomically high. Judgments against psychologists can easily run into seven figures. The malpractice carriers cannot afford to sustain many of these losses. Further, even when a suit is successfully defended, the defense costs can run to hundreds of thousands of dollars per episode. It is in the best interests of these insurance companies to continue to sponsor risk management seminars. In addition, when the emotional cost to the wrongly accused practitioner is figured in—based on realistic fears of losing one’s license, insurance referrals, and ability to practice—one can see why risk management has become so popular despite the fact that the statistical risk of litigation is low. Fear is a great motivator, and risk management is driven by fear. These are the negative aspects of risk management that will be discussed below:
Risk management may insidiously change the field of psychotherapy (making the services of psychotherapists less desirable) Consider some standard risk management advice such as not to hug or otherwise touch one’s patients, or not to engage in excessive self-disclosure. One clear purpose of such advice is to curtail those lawsuits or licensing complaints that are based on allegations of “boundary violations” (see Williams, 1997), or excessive interpersonal closeness between therapist and patient. Patients may complain that the therapist made romantic overtures, or implied same, or that the therapist was impaired and was using the treatment to meet some personal needs, or was simply trying to obtain sexual gratification by hugging. The risk management presumption here is that one can deliver psychological services without resorting to hugging, touching or self-disclosure and that one can “surgically remove” touching and self-disclosure from one’s practice, leaving all the active methods in one’s treatment armamentarium undamaged. This presumption may be unwarranted. Much has been written over the years about “non-specific” methods of healing, those things that a healer does that lie outside of any particular theoretical approach but which are active ingredients of healing nevertheless. The therapeutic alliance, an important predictor of positive therapeutic outcome, (e.g., see Martin, Garske and Davis, 2000), may well be enhanced, or indeed created, by such maneuvers as hugging, touching, and self-disclosing. The patient’s feeling of attachment to the therapist and to the therapeutic process may be dependent on some of the very behaviors that risk management would have us curtail. The possibility exists that some of the behaviors that are considered risky, from the point of view of avoiding lawsuits and licensing complaints, may actually be essential for enhancing psychotherapeutic outcome. Along with therapeutic outcome is the matter of marketing psychotherapy. The question must be raised as to why individuals seek psychotherapy and what kind of experience they seek. Certainly symptom relief and personal growth are desired outcomes that lure patients into treatment. But are patients only seeking certain outcomes, or are they also seeking a certain process along the way? And, are some of the practices that risk management would have us curtail the very practices that patients seek and find gratifying? Consider that there may be no other relationship in a given individual’s life that includes the mutual self-disclosure and personal exploration that might occur in psychotherapy. No other professional is available to provide this kind of relationship. Humanistic approaches to psychotherapy, for example, which are sometimes conceptualized as an intimate journal embarked upon by healer and seeker, are unique services that may be available nowhere else than from psychotherapists. If such humanistic practitioners heed risk management advice and remove from their practices self-disclosure and hugging, for example, would the public continue to seek their services? This is an empirical question in need of further study and could be phrased as follows: What proportion of individuals who are in the market for psychotherapy would enter or continue with psychotherapy if psychotherapy were stripped of all questionable boundary crossing practices, e.g., hugging, self-disclosure, minor gift giving, etc.? In other words, are certain boundary crossing behaviors part of the allure of psychotherapy and something that individuals seek when they consider entering psychotherapy? Risk Management, Rather Than Decreasing Ethics And Negligence Complaints, Actually Creates More Of These Complaints Perhaps the central irony of risk management is that it may increase, rather than decrease, complaints to licensing boards and lawsuits in civil court. It does so by continuingly raising the bar as to what constitutes acceptable practice (see Fleer, 1999). This occurs for two reasons. First, practitioners, as well as the expert witnesses who testify against practitioners on behalf of civil plaintiffs and licensing boards, tend to confuse risk management with standard of care. Something that seemed like a good risk management suggestion shows up in expert testimony as if it were the agreed upon, accepted standard of care. Second, over time, restrictions that were once merely risk management suggestions actually evolve to become the perceived standard of care. The risk management idea gets talked about enough that practitioners come to believe it is a standard. The upshot of this is that the insurance carriers and attorneys who transform their worry about lawsuits into risk management advice end up, intentionally or not, dictating new limitations and new restrictions to our practices. One problem is that the “standard of care” is really nothing more than a perception. If enough practitioners believe that a standard exists, then, for all practical purposes, it does exist. There is no reference book that clarifies that which is permissible, that which is cautioned against, and that which is forbidden. All of this is established by testimony in a confusing world where risk management ideas become too easily confused with standards. For example, there is nothing about unbilled sessions that goes below the standard of care. Therapists are presumably free to develop any billing style they wish, including providing pro bono services, or being sloppy about billing and forgetting to bill, or being sloppy about time and billing for hour-long sessions that actually lasted two-hours. It has been good risk management advice to counsel therapists to carefully bill for all time and neither to under bill nor over bill. This risk management advice is designed to prevent claims of unduly close, personal relationships between therapist and patient. In other words, if the therapist failed to bill for some number of sessions, and if there were to be a later claim of an unethical multiple relationship, e.g., professional and personal, the lack of billing could be used to support the claim that the therapist envisioned the relationship with the patient to be a personal one, or an unhealthy blend of the personal and professional. Careful billing would preclude this particular allegation against a therapist. The therapist could document that each and every contact was billed and that the line was never crossed between the professional and the personal. Over time, the idea of carefully billing for all clinical time has gradually evolved from a risk management recommendation to what some experts would put forth as a new standard of care. Nowadays, it would not be surprising to hear expert testimony that failure to carefully bill for services constituted negligence in and of itself—with no reference made to the issue of multiple relationships. Perhaps the most obvious example of a risk management method becoming a standard of care lies in the field of medicine. Over the past couple of decades, physicians have increasingly used nurses or other employees to serve as chaperones, observing and witnessing pelvic examinations. There is nothing medically beneficial to the patient in having her pelvic examination observed by a nurse. The nurse is called in simply to witness that the physician engaged in no abusive or exploitative behaviors while the patient was in this most vulnerable state. In other words, the nurse is there to protect the physician against a possible licensing or criminal complaint or lawsuit. It was not uncommon twenty years ago for a physician to dispense with the chaperone when examining patients with whom a long term trust relationship made the risk of a lawsuit or other complaint extremely low. Over time, though, the use of the chaperone has evolved from a risk management device to standard aspect of treatment. Currently, then, failure to use a chaperone is considered beneath the standard of care and is perceived as a failure to act to protect the patient. The logic has shifted from a need to protect the doctor from the patient to the reciprocal. Because the doctor would be unlikely to engage in inappropriate actions in the presence of the chaperone, the chaperone must be present to ensure that the patient is safe. Much like hand washing prevents infection, the chaperone prevents sexual misconduct. Hence, risk management becomes the new standard of care. As one can imagine, with the passage of time and with greater focus on risk management, the treatment options available to the practitioner will continually decrease as conservative attorneys and insurance companies continue to make risk management suggestions and as these continue to evolve to become new standards of care. Further, as these restrictions continue to be created, violations of the new restrictions will inevitably occur, leading to more complaints, more restrictions, and the cycle continues. Risk management destroys creativity among psychotherapists The final cost of the risk management to be discussed is the loss of creativity among psychotherapists. This is most obvious among recently trained psychotherapists. Young psychologists, social workers and counselors may fear to innovate, to push the envelope of treatment options and interventions. Instead, many of today’s younger therapists seem to approach the field conservatively, seeking guidance on what is and is not permissible. They have had such a disproportionate exposure to risk management concerns that it seems to have overwhelmed their inherent creativity. I have observed this myself in the ethics seminars I have led. When the seminar is one of the required ethics courses populated by experienced clinicians, one hears expressions of outrage that this or that treatment modification got a certain therapist in trouble with the licensing board. The older therapists are more inclined to ignore risk management advice in the service of innovation and independence. In stark contrast, when one is training pre- or post-doctoral psychologists, they seem to seek only to learn the “right answers” to the question of what is permissible and appropriate in psychotherapy. They seem to have no historical awareness of the evolution of psychotherapy, an evolution that took place because one practitioner after another was unafraid of innovating. They speak as if psychotherapy, in its present form, was somehow handed down by a panel of ethics experts and licensing board members and that it constitutes a set of inviolable rules. They have no awareness that the APA ethics code, for example, was created by psychologists, was modified as a result of debate (not necessarily consensus) and can be modified again. Risk management, as conveyed in their ethics courses, has convinced these therapists that professional life is excessively risky and that conservatism is the order of the day. Indeed, the inherent risks of our profession may have been so effectively managed among our younger practitioners that many of them will never dare to take an innovative step. Conclusion: On the Dangers of Listening to Attorneys A learned attorney friend of mine refuses to give risk management advice. It strikes him as somehow unethical because he foresees that inevitable outcome of all such advice is that practitioners will err on the side of conservatism, and that the field as a whole will become more narrow and restricted over time. Since no attorney can foresee how a jury will find with regard to some gray area of our line of work, many attorneys will advise caution, “just to be safe.” Rarely is an attorney asked to opine on a matter that is explicitly covered by the ethics code or law. Instead, one consults attorneys when something a little bit novel is at issue, something that is not clearly prohibited by any law or ethics code but not explicitly permitted either. The attorney will try to imagine what would happen if your patient filed a complaint against you, how the hypothetical evidence might play to a jury, and whether it is likely that the hypothetical plaintiff would be able to obtain convincing expert testimony in support of his or her case. More often than not, the attorney will conclude that the gray area at issue could possibly result in successful litigation against you and will ask you, “Is this particular method or behavior something you really need to do?” Your answer will probably be in the negative. Each time one of us restricts our practice because an attorney or someone else offers conservative risk management advice about a gray area, that gray area takes a step towards becoming a black and white area. Over time, as more of us seek such advice, more things seem to be forbidden. I recommend that we remain aware of the negative aspects of risk management and see it for the double-edged sword that it is. Yes, it could save you from a lawsuit or a licensing complaint, but it might also keep you from practicing according to your principles and beliefs. Further, in many cases, the actual risk of litigation may be remarkably low. The fact that a plaintiff can almost always find an expert witness to testify against a psychotherapist exerts a chilling effect on practice, since nearly any claim can move forward toward litigation. Even cases that settle may be subject to mandatory reporting to your licensing board. That we must practice in such a climate is unfortunate, but the real risks must be kept in perspective—including the risks to our profession of fear-based risk management. Overall the likelihood of litigation against us is low, while the cost of risk management may be high. References Fleer, J.L. (1999). The myth of risk management, Independent Practitioner, 19, 56-57. |
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