(p. 555) Defending Against Legal (Malpractice and Licensing) Complaints
Modern mental health practices occur in a legal framework. Whether in an agency or independent practice, safeguards against threats of legal (malpractice or licensing) complaints are essential for quality care and risk management.
For malpractice cases, professional negligence theory holds that a legal cause of action (the basis for a complaint) requires that the plaintiff (complainant) prove that the defendant or respondent (practitioner) was the source of damage (i.e., the alleged injury was due to a preexisting condition) (Shapiro & Smith, 2011). However, investigations of licensing complaints often bypass the legal tenets of negligence, searching for any sort of possible wrongdoing, with or without injury, by the practitioner. Suffice it to say, legal complaints inflict substantial professional and personal damage to the psychologist (Woody, 2009).
By professional standards and ethics, the psychologist should maintain a reasonable treatment or service plan focused on benefits for the clients. Psychologists are not expected to kowtow to abusive or threatening clients, nor does the therapeutic relationship require that the psychologists allow inappropriate preferences from patients’ service users to usurp their practitioner’s legal rights. Being defensive is a positive, not a negative, condition, and this prepared stance benefits the client, the psychologist, and our society via strengthening professionalism for quality care. Consequently, every practitioner must acquire adequate knowledge and skills pertaining to the law through self-study, continuing professional education, and other authoritative means.
Just as services of an accountant may be necessary for bookkeeping and tax matters, reliance on an attorney is essential to mental health practitioners in this day and age. Since the law is unique to the particular jurisdiction(s) in which the psychological services are conducted, the attorney should be selected accordingly (see Chapter 132 in this volume). Investing in an attorney admitted to the state bar for the jurisdiction(s) in which the psychologist practices is a contemporary requisite business expense.
Avoiding errors requires crafting treatment, intervention, or service plans that are derived from the best available research scholarly information. In addition to the desirability of empiricism, the use of evidence-based interventions can ward off legal complaints.
Threat assessment involves investigative and operational activities that will detect potential danger, whether in the form of the client’s noncompliance, illogical expectations, inappropriate demands, or threats of an ethics, malpractice, or licensing complaint (Bartol & Bartol, 2012). Given the nature of clients (p. 556) served by psychologists, it is not uncommon to encounter a lack of responsibility and a tendency to fault others for hardships in life. Before accepting a potential client, the practitioner should consider the risks that the client’s characteristics may pose to self, others, and the practitioner. Bennett et al. (2006, p. 12) state:
High-risk patients include those who are diagnosed with serious personality disorders, have complex PTSD or dissociative identity disorders, report recovered memories of abuse, have been abused as children, present a serious risk to harm themselves or others, are wealthy, or are involved in lawsuits or other legal disputes.… Patients with serious personality disorders, such as borderline or narcissistic personality disorders, present special risks for psychologists. The specific diagnosis is less important than the presence of special traits, such as a belief in one’s entitlement to special treatment, a pattern of idealization and vilification of others, a pervasive inability to accept objective and constructive feedback, or the use of romantic seduction as a consistent strategy to express affection or closeness.
Clients who are prone to litigation (e.g., relevant to divorce and custody disputes) are often poor candidates for psychological services (Woody, 2007).
With the foregoing warning, the psychologist should investigate whether the would-be service user shows CONDEMNS traits:
C = COMPLAINS about his or her lot in life
O = OWNING responsibility for self is absent (e.g., blames someone else or bad luck for problems)
N = NARCISSISTIC thought processes or verbalizations
D = DEFENSIVE behavior in many interactions
E = EXECUTIVE functions are impaired (e.g., faulty planning and decision making)
M = MONEY is an obsession or constant worry, even if unrealistic
N = NONCOMPLIANT tendencies show up immediately
S = SUSPICIOUSNESS is a pattern
For defending against malpractice and licensing complaints, the psychologist should accept this sort of person only under conditions that will assure strict adherence to a reasonable treatment plan.
I have offered 20 defensive strategies that any mental health practitioner should maintain as a preventive approach or when faced with a complaint (Woody, 2000):
1. Maintain a healthy mindset.
2. Accept the adversarial nature of the complaint.
3. Recognize the adversaries.
4. Become defensive.
5. Be a warrior.
6. Adopt a long-range perspective.
7. Obtain legal counsel.
8. Trust and rely on an attorney.
9. Do not allow financial considerations to dominate decision making.
10. Formulate a factual and defensible explanation.
11. Trust no one but your attorney.
12. Avoid creating witnesses for the other side.
13. Learn to respond properly to discovery methods and during testimony.
14. Be modest in professional representations.
15. Implement a risk management system.
16. Define an appropriate standard of care.
17. Buttress your professional credentials.
18. Screen clients to eliminate undue risks.
19. Guard against a copy-cat complainant.
20. Develop a healthy personal-professional life.
As a specific action plan for defending against malpractice and licensing complaints, the mental health practitioner can:
• View modern agency or independent practice as necessitating risk management.
• Provide professional services in accord with an individualized evidence-based treatment plan and require strict and consistent adherence by the respective client.
• Consider a client whose resistance, transference, or noncompliance cannot be managed therapeutically to be high risk for a complaint. (p. 557)
• If a conflict or threat arises, conceptualize the client as a potential “party opponent” and tactfully terminate services (with no vacillation).
• Have an attorney identified in advance, and at the first “red flag,” rely immediately and have the attorney deal with the potential or actual complaint.
• At the first indication of legal involvement or “red flag,” rely fully on the attorney for dispute resolution.
• Avoid trying to control or “quarterback” the defense.
Some of these suggestions may seem to contradict the traditional tenets of the treatment alliance, but (regrettably) if the alliance is not working, these suggestions may be necessary in contemporary mental health services delivery.
References and Readings
American Psychological Association Presidential Task Force on Evidence-Based Practice. (2006). Evidence-based practice in psychology. American Psychologist, 61, 271–285.Find this resource:
Bartol, C. R., & Bartol, A. M. (2012). Introduction to forensic psychology. Thousand Oaks, CA: Sage.Find this resource:
Bennett, B. E., Bricklin, P. M., Harris, E., Knapp, S., VandeCreek, L., & Younggren, J. N. (2006). Assessing and managing risk in psychological practice. Rockville, MD: The Trust.Find this resource:
Shapiro, D. L., & Smith, S. R. (2011). Malpractice in psychology: A practical resource for clinicians. Washington, DC: American Psychological Association.Find this resource:
Woody, R. H. (1988). Fifty ways to avoid malpractice: A guidebook for the mental health practitioner. Sarasota, FL: Professional Resource ExchangeFind this resource:
Woody, R. H. (2000). What to do upon receiving a complaint. In L. VandeCreek & T. L. Jackson (Eds.), Innovations in clinical practice: A source book (Vol. 18, pp. 213–229). Sarasota, FL: Professional Resource Press.Find this resource:
Woody, R. H. (2007). Avoiding expert testimony about family therapy. American Journal of Family Therapy, 35, 389–393.Find this resource:
Woody, R. H. (2009). Psychological injury from licensing complaints against mental health practitioners. Personal Injury and Law, 2, 1009–1113.Find this resource:
Chapter 104, “Dealing with Licensing Board and Ethics Complaints”
Chapter 106, “ Minimizing Your Legal Liability Risk Following Adverse Events or Patient Threats”
Chapter 107, “Dealing with Subpoenas”
Chapter 120, “Understanding Professional Liability Insurance”
Chapter 132, “ Selecting and Relying on an Attorney”