How Do You Know If Your Child's Therapist Commits Malpractice?

People who are dissatisfied with their physicians and psychologists sometimes mutter to themselves about malpractice, but most of us don’t really know what the term means. In this post I’m going to provide some information given at https://www.kspope.com/ethics/malpratice.pdf by the defense attorney Brandt Caudill, Jr. (By the way, Dr. Ken Pope, whose website this material appears on, is one of the most effective current constructive critics of the practice of psychology.)  Brandt Caudill intended his post to address malpractice issues for adult clients of psychologists, so although I’m going to mention the problems he envisioned as possible malpractice for everyone, I will stress and elaborate on the points that are most applicable to malpractice in the treatment of children. Caudill’s points are in italics below.

Excessive or inappropriate self-disclosure by a psychologist to a client is potentially to be considered malpractice. However, it is possible that a therapist may disclose a past history that is similar to a client’s history in order to create a sense of empathy; this would be appropriate, but for a therapist to disclose personal issues for his or her own motives is not. What about disclosure to a parent of a child in treatment? Can the therapist disclose information about his or her own children or other family members, or state how he or she solved a personal problem similar to the one the parent is contending with in the child’s behavior? These are sticky questions, and a therapist who handles them poorly may encourage parents to look for “proof by anecdote” rather than to be concerned about the evidence bases of treatments. In addition, disclosure of personal history by therapists, even as it supports empathy, may suggest to parents that they should avoid practitioners who might be helpful but do not share their personal characteristics. This has been a problem with respect to mental health treatment for adopted and foster children, some of whose parents have been told by adoption organizations and by individual therapists that they can only be helped by people who have adopted or been adopted themselves (as others “don’t get it”, no matter how well trained they are).

Business relationships with patients are a type of malpractice that is not likely to occur directly with children. However, it could occur with parents of children in treatment, especially if the therapist defines the child, rather than the family, as the client. It would not be appropriate for a therapist to hire the parent of a child in treatment as an office worker or to recommend such a parent as a foster parent or a treatment aide.

Using techniques without proper training is a potential malpractice issue whether adults or children are being treated. While this may seem obvious, the availability of weekend or on line workshops and seminars may make it easy for therapists to believe that they have mastered techniques and to use them without sufficient training and without related resources for consultation. Therapists who undertake serious training in a technique are almost sure to learn about the evidentiary foundation of the technique, and on any adverse events associated with it, whereas brief introductory trainings are much less likely to touch on these issues.  The possibility of adverse events is an especially important one for children, who of course are not in a position to decline further treatment if they experience a technique as harmful.

Using incorrect diagnosis deliberately is potentially a malpractice issue for both adults and children. Some therapists use this method, dishonestly but perhaps with the best intentions, to provide insurance coverage that may not be available for an actual problem. As Caudill points out, “The law does not recognize or permit the therapist to have one diagnosis for treatment purposes and one diagnosis for insurance or billing purposes”. Intentional use of an incorrect diagnosis may also be associated with use of inappropriate syndrome testimony. As   Caudill notes, “At this point, using syndromes which are not appropriately researched or acknowledged by the profession  is below the standard of care”. Caudill goes on to note that among the syndromes that should not be represented as accepted are Childhood Sexual Abuse Accommodation Syndrome, Parental Alienation Syndrome, and Malicious Mother Syndrome. Interestingly, as I am writing this in 2017, some therapists who used to use the term Parental Alienation Syndrome have chosen various conventionally-accepted disorders and created a “bundle” that they now present as equivalent to PAS.  Although the same comments might well be made about the use of unconventional, non-evidence-based treatments for children, I have rarely found that these trigger malpractice proceedings.

Avoiding the medical model involves decisions that are potentially malpractice issues, including failures to document informed consent, to conform to standards of care, or to keep notes and records. Psychotherapists are required to meet these obligations, which may be more complicated for children than for adults. With respect to informed consent, therapists are required to inform clients whether they are using evidence-based or unresearched, experimental methods and to communicate information about adverse events and about the effectiveness of the treatment. Some therapists who ask clients for consent do not include the information that makes consent informed. In the case of child clients, parents or guardians provide informed consent, but older children and adolescents are in many states also expected to give their consent, and adolescents may have the authority to refuse an unwanted treatment. Therapists need to handle the informed consent issue effectively, to provide complete and accurate information, and to obtain the consent of child clients in ways suitable to their developmental age.

The true love exception for sexual relationships is a common source of malpractice proceedings against therapists. One hopes that it is far more likely for therapists to convince themselves that a sexual relationship with an adult client is acceptable than to make the same decision about a child. However, there are sexual issues that may arise with child and adolescent clients even in best case scenarios. For example, a therapist may need to explore past sexual abuse in detail with a child client or to offer education about sexual and reproductive matters, and these discussions bear the possibility of misinterpretation by child or parent as seductive ploys. Young children, and older children who have had sexualized experiences, may accidentally or intentionally touch a therapist inappropriately, and these events need to be handled with clear messages. Otherwise, malpractice claims may arise, whether or not standards have been met.

These items are probably the most likely issues to be associated with malpractice by a therapist treating a child or adolescent rather than an adult. However, Caudill also lists problems that may amount to malpractice in work with clients of any age: Failure to obtain an adequate history (which needs be provided by parents, schools, and so on—including medical records—for children); uncritically accepting what a patient says (or, for children, what a parent says); out of the office contact; and failure to obtain peer consultation to help insure objectivity about a case.

Choosing a Developmentally Appropriate Preschool/ Child Care Program

What should a good program for preschoolers look like? This is a really difficult question for many parents of young children. There are a lot of different ways that a program for young children could look—it could be home-like, play-oriented, custodial (just “watching” the children), therapeutic, rule-driven and intensely instructional, or anywhere between these or among combinations of these categories.

A good many of today’s young parents went to preschools or were cared for in out-of-the-home settings when they were small children, but they may not remember the details, or ever have known some facts about the school or child care program. They may have much clearer memories of kindergarten, and of course remember a lot about grade school. When they search for a school or child care setting that “looks right”, they may do this by comparing what they see with their memories of their early school years, when there were quite a few children with each teacher and many rules about staying at your desk and following instructions.

But the school arrangements that may work well for older children are not necessarily developmentally appropriate for preschoolers aged 3 to 5 years, and are certainly not appropriate for younger children in a toddler program. Parents need to choose possible programs for their young children by considering the need for developmentally appropriate practices.

One approach to choosing a developmentally appropriate program is to look for certification by the National Association for the Education of Young Children, but as David Kirp has pointed out in an opinion piece for the New York Times (https://www.nytimes.com/2017/02/04/opinion/sunday/how-to-pick-a-preschool-in-less-than-an-hour.html), NAEYC certification is not necessarily the magic key to a good preschool or child care center. Neither are claims to use the methods of Montessori, HighScope, Reggio Emilia, or Waldorf. As Kirp comments, “The key is how well a particular model of teaching is being carried out.”

Kirp suggests that a visit to a preschool should focus on whether certain important things are going on. These include walls full of kids’ projects, posted at a level where kids can see them. Children should look at you and say hello but then go back to what they are doing. Ignoring you suggests that they are not developing social skills. Rushing over to be with you (a stranger) suggests that they do not get much attention—not, as some young parents might assume, that they are very friendly and thus the school or center is a good place. The noise level should be low but constant, as children talk to themselves or each other or the teacher about what they are doing. And…you should not see an emphasis on teachers giving instructions, enforcing rules, standing over children, or demanding unnecessary conformity (like coloring inside the lines).

A publication of the American Psychological Association, http://www.apa.org/education/k12/high-fve.aspx, suggests the High Five method for identifying good preschool or child care programs. (You can download a brochure about this model from the website.) In addition to describing the High Five approach, the brochure reminds parents that their job is not finished when they have chosen a program for their child, but that questions need to be asked on a regular basis, because programs change (and of course children do, too).

Here are the five questions parents are advised to ask about any program for young children:

1.   What is happening in the classroom?

Are children engaged and enjoying what they do? Would the activities interest your child or take into account any special needs she may have? Is there flexibility, so not all children have to do the same thing at the same time? Do children have any choices?

2.      How do teachers and children get along?

Do children and teachers seem to enjoy being together? Do children treat each other with respect, and do teachers act respectfully toward other teachers? Is a warm, positive approach to others encouraged?

3.      How do teachers guide and, when needed, correct children’s behavior?

Is it clear to children what the rules are? Do teachers step in early and help children solve their problems? Do teachers appreciate and acknowledge positive behavior like helping another child or showing concern for someone?

4.      How do teachers talk with children?

Do teachers ask open-ended questions to encourage children to use language? Do they talk to children while the children are playing?  Do they talk in ways that focus on what and how the children are doing things, rather than general positive comments like “good job!” ?

5.      How do teachers communicate with parents?

Are parents welcome in the classroom? Do teachers speak to parents respectfully? Do teachers have methods for communicating to parents what a child has been doing that day? Do events regularly include children's families, and are families informed or invited?

As you can see, the questions suggested by David Kirp in his Times opinion piece and by the High Five project are somewhat different from each other, but the combined question list would be very helpful for parents choosing a preschool or child care setting—certainly more useful than making a decision just based on prior certification or on advertising of a well-known early education approach.  The High Five recommendation of continuing monitoring of any program is a good one, especially if a program goes through changes of director or other staff, or if the program is part of a for-profit franchise.

Power Assertion and Child Guidance: Spanking and Other Acts

 Not only the American Psychological Association, but various other groups with an interest in child development and parenting have been expressing concerns about spanking for many years. Such concerns are felt not only about physical punishment that reaches the level of injury and abuse, but about spanking itself—usually defined as a matter of one or two smacks with the adult’s bare hand on a child’s buttocks or legs.

One reason to be concerned about physical punishment by spanking is that there may be a “domino effect”. Caregivers who feel free to spank may respond to stress and anger by escalating to more intense or frequent blows, or to using a weapon like a switch or electric cord that will cause more pain. With such escalation, the possibility of real injury increases; when no physical punishment at all is used, escalation cannot occur.

A second reason for concern is that among some subcultures, spanking is associated with more rather than less antisocial behavior by children and adolescents. It’s possible that children learn to be more violent by imitating violent adult models. However, the issue is much confused by the fact that in other subcultures spanking is associated with better child development and achievement. All of these points are based on correlational studies that find statistical correlations between children’s experiences and their development, but do not allow us to conclude that an experience causes a developmental change. Children’s experiences of spanking or other punishment do not stand alone, and caregivers who spank may also provide other experiences that influence children.

The emphasis on spanking often focuses on the child’s experiences of pain and potential physical injury, but in fact spanking, as properly defined, probably does not hurt as much as a skinned knee or many other accidental childhood experiences. Perhaps what we need to do, to understand the potential effects of spanking, is to consider the act not as a source of pain, but as a type of power assertion.  Power assertion techniques attempt to create behavior change by associating unwanted behavior with pain, fear, or both.

Although spanking is not considered an abusive act in the United States (at least for children older than a year and not yet in adolescence), there are many other power assertion techniques that may be classed as abusive for research purposes. These may or may not be specified under state laws about child abuse and may simply be considered as aspects of harsh parenting. They include isolating the child by keeping him or her locked in a room alone, depriving the child of food or drink, forcing the child to eat or drink, shouting at or refusing to speak to the child, and restraining the child physically by hand or by binding. Because power assertion techniques may operate through threats that frighten the child, adult threats of any of these experiences can be counted as examples of power assertion, even though the threats do no direct harm and do not even cause pain.

Why might we expect power assertion techniques to have worse outcomes than other forms of child guidance? One reason is that frequent experiences of fear and general anxiety are associated with difficulties about learning and thinking in both children and adults. (Although it may be true that knowing one is to be hanged “concentrates the mind wonderfully”, the concentration is on the hanging and not on other matters to be learned or remembered!) A second reason is that the normal course of development of attachment and social relationships involves increasing levels of compromise, bargaining, and negotiation, which are almost impossible when one party is constantly asserting his or her power over the other. A third reason is that parents who emphasize power assertion techniques with their children must by definition spend less time than others using techniques like humor, playfulness, rewards, and goal-setting, all of which support language and cognitive development as well as positive family relationships.

It does seem as if children can benefit from decreased experience of all of the power assertion techniques, not just of spanking. But there is a paradox here. Is not power assertion implied in all interactions adults have with children? We are big and they are small; we are skilled at punishments and threats and have the power to carry them out. We have the food and can withhold it. We can lock them in a room, we can turn out the lights with a switch they can’t reach. Even if (one hopes) we never do any of those things, we do have the power and they don’t. What’s more, we assert that power for various necessary reasons in the course of their early lives—changing diapers that they don’t want to have changed, snatching them out of the busy street, carrying them kicking and screaming out of a store, taking them to the doctor for shots.

The power differential is unquestionable, and we can never escape it. But we can limit the use of power assertion to times when it is really necessary, and that should go not only for spanking but for other power assertion methods. The reward? Better developmental progress, and probably more young adults who  know how to compromise with others.

Aggressive, Disturbing Child Behavior? Think Conduct Disorder, Not RAD

Very young children, sometimes even infants, accidentally hurt other people or pet animals. They may do this by sticking their fingers up your nose or in your eye, yanking on earrings, biting when they are teething and have itchy gums, whacking you in the mouth or on the nose with their hard little heads—and of course they have not yet learned the advice given by Dave Barry, “never put your finger in that part of the doggy”.

Generally, young children learn not to hurt people or animals as a result of the experiences that follow the infliction of pain. These may (but do not need to) include punishment, but they usually do include sudden withdrawal by a person or animal, exclamations of distress, and admonitions not to do that any more. Pets learn to avoid toddlers, and adults develop skill in moving their heads away from glasses-grabbing and earring-yanking, so children who unintentionally caused pain simply don’t manage to do those things after a while.

All children begin in the early years to act aggressively when angry, and adults spend a good deal of time working to teach them to speak their anger rather than to hit or bite. Most learn this lesson well, although all human beings retain throughout life the ability to express anger physically. Good development in young children means that they are less likely to hit or bite, but that they can still carry out forceful actions toward other children, like grabbing a toy that has been taken away.

 However, a small number of children move from accidental harm to others toward frequent intentional, aggressive acts when they are angry, or even for no apparent reason. Unlike most children, they do not learn between ages 2 and 4 to modulate their aggressive behavior to an acceptable level, and they are on a developmental pathway that leads to later antisocial behavior, including violence. Their problems are not part of Reactive Attachment Disorder, which is not itself associated with aggressive behavior, but are aspects of conduct disorders.

 According to a discussion of this issue by Daniel Shaw and Lindsay Taraban (“New directions and challenges in preventing conduct problems in early childhood”, Child Development Perspectives, 11(2), 85-89, 2017), family and child risk factors help to determine children’s developmental progress toward conduct disorders and later serious antisocial behavior. Living in poverty, with its attendant stresses and emotional responses, is a major factor connected with the development of conduct disorders, and is especially associated with living in “projects” where gang and other interpersonal violence is probable. Maternal depression (also associated with poverty) is a second important factor in the development of childhood conduct disorders.

Is it possible to reach families with aggressive young children and help them avoid serious antisocial behavior in later life? Shaw and Taraban suggest that this can be done, and that in fact early intervention can be most effective. (Although it is questionable whether very early treatment is always the best answer for problems of development, this may be a case where parents and children are most optimistic and most malleable while the children are quite young. )

Treating maternal depression seems to be one of the most effective ways to reduce child conduct disorders. Depressed mothers may be harsh and overcontrolling in their parenting style, but at the same time easily give up on efforts to find resources the family and children need—employment, appropriate housing, and good-quality child care outside the home. General family stress and angry interactions result from maternal depression combined with poverty, and are major causes of unusual child aggressive behavior culminating in conduct disorders and antisocial attitudes and actions.

These facts suggest that it is important to note and address aggressive behavior in the preschool years, but that treatment needs to involve not just the child, but the family and even the community. Conduct disorders are not caused by attachment problems and cannot be solved by efforts to create secure attachment. Maternal depression and poverty can also cause atypical emotional attachment (for instance, by moving an abused or neglected child into and out of foster care multiple times), but the effects of this are separate from conduct disorders.

When the preschool period has passed, an unusually aggressive child has been exposed to additional factors that are likely to increase the probability of antisocial behavior. These include  rejecting attitudes on the part of adults, such as expulsion from preschool or from community activities like library read-aloud sessions, often accompanied by further harsh behavior from embarrassed and stressed parents who need to find new child care arrangements. By school age, aggressive children are likely to find themselves rejected by more typically-developing peers and accepted only by other aggressive children, who encourage oppositional and defiant behavior toward adults. The influence of peers soon becomes paramount, and improvement of the family situation has less effect on child conduct than it did earlier. By this point, efforts to influence attachment have become not only ineffective but irrelevant to the child’s developmental stage, and labeling aggressive behavior as a manifestation of RAD, rather than as a conduct disorder, is counterproductive as well as incorrect.