Ethical and Legal Constraints in Psychotherapy

Ethical and Legal Constraints
in Psychotherapy
Prachi Sanghvi
M.Phil. Clinical Psychology
Gujarat Forensic Sciences University

Psychotherapy
“A treatment, by psychological means, of problems of an emotional nature
in which a trained person deliberately establishes a professional relationship
with the patient
with the object of removing, modifying or retarding existing symptoms;
mediating disturbed patterns of behavior and
promoting positive personality growth and development.”
(Wolberg, 1988)
Prachi Sanghvi, M.Phil. Clinical Psychology, GFSU

Ethics
• “Principles of conduct governing an individual or a profession (Gove,
1966).”
• At different stages of professional journey, therapists are confronted by
choices between “right versus wrong” and “right versus right (Kidder,
1995).”
• During WWII, need was felt for a code of ethics that established clinical
psychology as a profession capable of meeting its responsibilities to the
public (Pettifor, 1996).

• Ethical issues that arise from time to time are often complex,
multifaceted and do not always have unambiguous answers (Corey,
Corey, & Callanan, 1999).
• Academic and professional psychology training programs in India usually
refer to APA code. RCI ethics code is brief and not tailored specifically to
the psychotherapist–client context (Bhola, Sinha, Sonkar, & Raguram,
2015).
• IACP ethics code (IACP, 2015) is less comprehensive than APA ethical
guidelines (APA, 2017).
• Most national codes lack in clear guidelines on the process of ethical
decision-making when faced with tough choices.

• In India, absence of adequate regulation of the profession makes potential
consequences of ethical violations uncertain (Bhola, Sinha, Sonkar, &
Raguram, 2015).
• An issue with specific relevance to the Indian context is whether therapies
and components of therapies developed in the West are directly
applicable to the patients in India (Kapur, 2001).
• Since, culture has a tremendous impact on the type of solutions and
therapies that work for us, developing manuals and testing therapies is
essential for ethical practice (Isaac, 2009).

Ethical and Legal Challenges
• Professional competence
• Informed consent
• Confidentiality
• Boundary issues
• Responsibilities of therapist
• Psychometry
• E-therapy
• Psychotherapy termination
• Documentation
• Research ethics
• Forensic participation

Professional Competence of Therapist
• “Possession of required skill, knowledge, qualification or capacity.”
• Being aware of one’s competence, with regard to the level of knowledge,
training and supervised experience in a particular kind of therapy (Avasthi
& Grover, 2009).
• Professional Negligence:
Failure to exercise a reasonable degree of skill and knowledge in diagnosis
and providing care can constitute negligence (Vinay, Lakshmi & Math,
2016).

• Emotional Competence:
Whether the therapist is aware of his emotional state while dealing
with his patients (Pope & Brown, 1996).
• Refrain from conducting therapy when there is a substantial likelihood
that therapist’s personal problems will prevent him from performing
his work in a competent manner.
• Obtain professional consultation or assistance for the same (Wise,
2008).

Informed Consent
• Consent capacity not an all-or-none ability but a continuum (Bennett et.
al, 2006).
• The patient may not be able to make an informed decision so educating
the patient about the procedures involved in therapy.
• Encourage discussion between patient and family members to make
more informed decisions.
• Consent should be obtained at the first possible opportunity once the
crisis has subsided.

• Appointment schedule, duration of each session, home work
assignments, anticipated duration of therapy, confidentiality and
exceptions (Avasthi & Grover, 2009).
• Communicates respect for individuality and reflects the collaborative
nature of psychotherapy.
• Emphasizes the patient’s role in making treatment decisions and
increasing a sense of ownership over the process.
• Reduces patient’s anxiety by demystifying the therapeutic process.

Following principles are suggested while taking informed consent (written
or verbal) (Fisher & Oransky, 2008):
1. Use the language that is understandable to the patient.
2. Understand the competence issues of the patient to give consent.
3. Obtain informed consent as early as possible.
4. Consider informed consent as a procedure and discuss all the issues in
piece-meal, rather than in one go.

5. Gather information about the expectations from the patient.
6. Provide information about the fees and payments.
7. If the therapist is a trainee, inform the patient about it and the role of
supervisor.

Confidentiality
• Foundation of psychotherapy
• Without assurance of confidentiality, patients cannot be expected to reveal
embarrassing information in treatment setting (Younggren & Harris, 2008).
• Maintenance of confidentiality preserves the privacy of patients and
promotes trust in the profession (APA, 2007).
• The informed consent should mention that the therapist will maintain
confidentiality of the information revealed during the psychotherapy.
• It should also provide the provisions under which the information would be
disclosed to others (Avasthi & Grover, 2009).

Exceptions:
1) Child Abuse and Confidentiality
• When a therapist has reason to suspect that a child has been or is being
sexually abused, he is required to mandatorily report it to the police or the
relevant person within his organization who will then have to report it to
the police under the Protection of Children against Sexual Offences Act
(2012).
• Failure to do this would result in imprisonment of up to 6 months, with or
without fine (Section 21, POCSO Act, 2012).

2) Suicidal/Homicidal patients (Vinay, Lakshmi & Math, 2016)
• Failure to ensure patient safety within a high risk for suicide situation could
end in harm or death.
• Weigh the consequences of breaking confidentiality versus potential patient
harm.
• Formulate ‘suicide prevention contract’ with the patient, inform the family,
having the patient hospitalized and discuss the intended action to resolve the
situation with the patient.
• In case of a homicidal/suicidal threat, therapist has responsibility to warn the
potential victim or inform the police regarding the risk when a warning is
essential to avert the danger rising from patient’s condition.

3) When the information collected in the professional relationship must
be submitted as evidence in a legal proceeding.
4) If the patient threatened the therapist for his life or filed a case against
the therapist.
5) Therapist will disclose the information to a third person or agency, if
patient gives in written to release the information.
(Avasthi & Grover, 2009)

Boundary Issues during Psychotherapy
• Dual relationships, bartering, non-sexual touch, meeting therapy patients
outside the office for social visits, etc. (Pope & Spiegel, 2008).
• Two types of boundary issues (Gutheil and Gabbard, 1993):
(a) Boundary crossings are harmless deviations from traditional clinical practice,
behaviour or demeanour.
- Neither harm nor exploitation is involved, e.g., accepting cake on patient’s
birthday.
- Crossing boundaries ‘may at times be salutary, neutral or at times harmful’
and the nature, clinical usefulness and impact ‘can only be assessed by careful
attention to the clinical context.’Prachi Sanghvi, M.Phil. Clinical Psychology, GFSU

b) Boundary violations, in contrast, are typically harmful and are usually
exploitive of patients’ needs—erotic, affiliative, financial, dependence or
authority, e.g., having sexual relationship with patient or financial
demands beyond the fee, etc.
- Boundary violations should be understood on case to case basis by taking
into consideration the situations in which violation occurred and possible
harm it does to the patient.
• Imagine the ‘best’ and the ‘worst possible outcome’ from both crossing
this boundary and not crossing. Does it involve significant risk of negative
consequences? (Pope & Spiegel, 2008)

Responsibilities of Therapist
1) Responsibilities to the patient
• Professional intent
• Goals should be realistic and clear
• Avoid harm as a result of therapy
• Seek supervision or refer when issues are beyond competence
• Promote autonomy Prachi Sanghvi, M.Phil. Clinical Psychology, GFSU

• Maintain professional boundaries
• Maintain confidentiality
• Publicity material should reflect accurately the nature of service offered,
training, qualifications and relevant experience (Avasthi & Grover, 2009).
• Do not engage in discrimination based on age, culture, disability,
ethnicity, race, religion, gender, sexual orientation, marital status,
language preference, SES, etc. (ACA, 2014).

2) Responsibilities to self as a therapist
• Maintain one’s own effectiveness, resilience and ability to help the patients.
• Monitor personal functioning, seek help or refrain from therapy when personal
resources are sufficiently depleted and when one’s functioning is significantly
impaired by personal, emotional difficulties or any other cause.
• Regular supervision to develop skills, monitor performance and provide
accountability for practice.

Psychometry
• Obtain informed consent including reasons for testing, intended use and range
of possible consequences, what testing information will reveal and to whom.
• Test data includes test protocols, test results, raw test data, written/computer
generated reports, global scores/individual scaled scores, manual, test items
and scoring keys.
• Tests with obsolete or irrelevant norms cannot be interpreted and reported
(APA, 2017).
• Use only such assessments whose validity and reliability have been established
for use with members of the population tested. When such has not been
established, psychologists must describe the strengths and limitations of test
results and interpretation (IACP, 2015).

• Those who are not qualified for test use and interpretation should not
be given access to test material or raw test data.
• Results are explained in a way that is easy for the patient to understand.
• Patient has a right to raw test data and to have test results explained in
full.
• Not providing full results of psychological tests can be compared to not
providing full results of blood tests or MRIs (Isaac, 2009).
• Testing material should be used keeping in mind copyright laws and
ownership issues (APA, 2017).

Practical Issues
• Late to the session- Discuss the difficulties in reporting on time and the
possible solutions for the same.
• Cancellation- Generally, patients are asked to inform therapist at least
24 hours in advance if they want to cancel a session. Though there is a
practice of charging patients if they fail to do so, it is rarely done in the
Indian setting.
• Avoid telephone counselling in regular counselling services. Needs to be
used only during crisis. Ethical and legal norms have not been well
established in telephone counselling.
(Vinay, Lakshmi & Math, 2016)

• Emergency contact:
- Patient and family members have to be made aware that therapist’s privacy
and personal time needs to be respected.
- If a patient is making repeated phone calls it would be prudent to explain the
patient about the professional relationship and request to call only during
emergencies.
- Avoid giving personal mobile number, residential phone number and
residential address.
- If patient threatens self-harm over the phone, therapist should contact the
family and make a referral to the nearest emergency mental health
centre/hospital.

- If no family members are available, it would be prudent to inform the
law enforcing agencies about the patient’s self-injurious behaviour to
protect him.
• Legal queries related to child custody, divorce, the amount of alimony
they can expect to give/receive, legal assistance in cases of abuse or
other wrongful behavior, etc.
• It is useful to be aware of the laws relating to mental health issues, but
it is important to refer them to proper legal counsel.
(Isaac, 2016)

E-therapy
• “Internet based modality in delivering psychological support that can be
synchronous (simultaneous) or asynchronous (time-delayed) communications.”
• Ethical challenges:
1) Appropriate concerns for E-therapy
Certain disorders not indicated for e-therapy like immediate crisis, e.g., eating
disorder or severe psychosis.
2) Possibility of misunderstanding
Missing non-verbal cues. E-therapy has been criticized for non-accessibility of
non-verbal cues.

3) Maintenance of professional boundaries
Boundary concern of accessibility of private information on the
internet. Being aware of the type of personal information that is
accessible online to the public.
4) Electronic confidentiality and privacy issues
Maintain confidentiality and privacy, of both the patient and therapist.
E-mails, on-line support groups and instant messaging all leave a digital
trail that can be compromised if not secured properly.
(IACP, 2015)

Psychotherapy Termination
• It is not a point but an intentional process that occurs when the patient
has achieved the goals of treatment, he no longer needs psychotherapy,
is not likely to benefit or is being more harmed than benefited from
continuing psychotherapy.
• It should occur in a planned way, rather than abandoning the patient,
which may convey betrayal and abuse of power.

• Pre-termination counseling session:
- Provide advance notice or negotiate an end date
- Review what the patient is able to manage outside the sessions, what all
he considers as gains in terms of his ability to handle previously
unmanageable situations.
- Discuss persisting deficits
- Focus on when to return back for psychotherapy in future by planning for
relapses and potential stressors.

Documentation in Psychotherapy
• Case information in the file should be considered a legal document that can
be subpoenaed by the court (Vinay, Lakshmi & Math, 2016).
• Proper documentation can rescue therapist in the court of law or when
evaluation is done by the Council in cases of complaints (Avasthi & Grover,
2009).
• Failing to maintain adequate patient records potentially could lead to a
malpractice claim because it breaches the standard of care expected of a
mental health practitioner (Luepker 2012).
• The Mental Health Care Act (2017) mandates proper record keeping. It also
dictates that the patient and the nominated representative have the rights to
access the records.

• Psychotherapy involves sharing sensitive and personal information.
• Patient reveals this information in the faith that it will be used to
advance the treatment and that it will not be revealed without
informed consent.
• But, the records are open to disclosure where such a demand is made
by the court of law (Avasthi & Grover, 2009).
• Use clinical judgement, i.e., weigh the pros and cons to maintain
concise, factual documentation of whatever has been disclosed in
psychotherapy while respecting the privacy of the patient.

Recordkeeping guidelines delineate three types of content (APA, 2007):
1. General file information: Demographic details, presenting problems,
diagnosis, intervention plan, billing information and informed consent.
2. Documentation of service: Date, duration and type of psychotherapy
and session notes.
3.Other information: Assessment data, crisis management
documentation, consultation with other professionals.

Research Ethics
• Protect the rights and welfare of participants
• Minimize the risk of physical and mental discomfort
• Ethical clearance from authorized committee
• Informed consent
• Three issues for data management:
- Ethical and truthful data collection
- Responsibility of collected data
- Data sharing
• Fabrication, Falsification, Plagiarism
(IACP, 2015)

• Being aware of personal boundaries of competence; accept only those
forensic cases relating to areas in which a level of personal expertise has been,
or is being, attained.
• Being aware of the rules of discovery and assume non-confidentiality as a rule.
• Ensure that the examinee is fully aware of limits of confidentiality and provide
comprehensive informed consent prior to evaluation.
• Being aware of the legal statutes and case law upon which the psycho-legal
question turns; if uncertain, request clarification.
• Carefully and accurately document the evaluation process (IACP, 2015).
Forensic Participation

Strategies for Ethical Practice
• Positive ethics focuses the psychotherapist on constantly striving to
achieve the highest ethical standards which is guided by a series of
aspirational virtues (beneficence, non-maleficence, fidelity, autonomy,
justice, self-care).
• Risk management focuses on minimizing risks for the psychotherapist that
may result in complaints or malpractice claims (Bennett et. al, 2006).
• Defensive practice involves making decisions based on reducing the
possibility of adverse outcomes for the psychotherapist (Barnett, 2008).

• The primary difference between the Indian and American ethical code
is that of accountability.
• To increase the ethical behaviour of clinical psychologists, a mechanism
needs to be developed by which they can be held accountable for their
behaviour. (Verma, 1998). This is currently taken care by Consumer
Protection Act (1986).
• Under this legislation, a therapist owes certain duties to the client, who
consults him for his psychological problems. A deficiency in this duty
results in negligence.
Conclusion

• A client can approach the consumer court, if he has suffered loss or
damage as a result of any deficiency of services (Vinay, Lakshmi & Math,
2016).
• In the era of consumerism, the therapist needs to be aware of patient’s
rights, ethical issues and prevailing legal system.
• The ability to think critically and apply general ethical principles to
specific situations is vital.
• Being aware of specific guidelines of behaviour and need to incorporate
this awareness into everyday practice (Isaac, 2009).

References
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Ethical and Legal Constraints in Psychotherapy

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