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.