HOW CAP IS ADDRESSING THE CONFLICT BETWEEN THE CLAUSES REGARDING THE PROHIBITION AGAINST DUAL RELATIONSHIPS and THE PROHIBITION OF VIOLATING STANDARDS OF DISCIPLINE IN THE MENTAL HEALTH PRACTICE ACT

THE PRESENTING PROBLEM

Two of the paragraphs among the list of prohibited activities for all licensed and non licensed psychotherapists in 12-43-222(1) Colo Revised Statutes are in contradiction with each other.  This happens when the Mental Health Grievance Board or any of the licensing boards apply their conservative interpretation of subparagraph (i) of this section as a categorical prohibition against any dual relationship. While subparagraph (g) states that a psychotherapist has violated the mental health practice act if it has not operated in accord with the standards of ethics of its area of practice. Those standards disagree with such categorical prohibition against dual relationships. Some standards (codes of ethics) even state that dual relationships may not be unethical and may be even beneficial. ( Prior to 1992 such contradiction would not have existed as the codes of ethics concurred with such a categorical prohibition.)

TWO POSSIBLE SOLUTIONS

On September 28 th CAP asked the Department of Regulatory Agencies Mental Health Grievance Board to adopt a new rule, so that the law 12-43-222(1)(i) is seen to “fit” with the nationally accepted “standards of discipline” referenced in (g). It could read as follows:
  The psychotherapist has not violated 12-43-222 CRS if the psychotherapist has maintained a dual relationship with a client but has made either documented informed consent or documented self assessment or has obtained documented peer or supervisory consultation regarding potential risk of acting with impaired judgment or the potential risk of exploiting the particular client, or the psychotherapist has maintained a dual relationship with a client and has not acted with impaired judgment or has not exploited the client.”

The Mental Health Grievance Board will be discussing this proposal at its next meeting on December 14 th . CAP has received no indication what position the board or Dora will take. If Dora staff attorneys and administration recommend adopting a new rule as CAP proposes, then all the boards, the Grievance Board and the licensing boards will have to follow suit and adopt the same language in each board's rules.

Meanwhile, given the possibility that DORA may not act in accord with our recommendations, and given the timing of the beginning of the Colorado 2008 Legislative Session, CAP is already moving ahead with the introduction of legislation in January 2008 in case we need to change and rewrite the actual language in the law to disallow any further conservative interpretation of subparagraph (i) as a categorical prohibition against a “dual relationship”.

CURRENT STATUTORY LANGUAGE: 12-43-222. Prohibited activities - related provisions .

1 A person licensed, registered, or regulated under part 3, 4, 5, 6, or 7 of this article is in violation of this article if such person:

(i) Has maintained relationships with clients that are likely to impair such person's professional judgment or increase the risk of client exploitation, such as treating employees, supervisees, close colleagues, or relatives;

The statute language referencing national codes of ethics is in the same section listing activities prohibited by all psychotherapists:

(g) (person) has acted or failed to act in a manner that does not meet the generally accepted standards of the professional discipline under which such person practices.  . .

CAP'S SUGGESTED NEW LANGUAGE : (i) would be replaced with the following :

“The psychotherapist has violated this section (12-43-222 CRS) if the psychotherapist has maintained a dual relationship with a client without either making documented self assessment or acquiring an informed consent from the client or by obtaining documented peer or supervisory consultation as to any potential risk of acting with impaired judgment or the potential risk of exploiting the particular client, or the psychotherapist has maintained a dual relationship with a client and has acted with impaired judgment or has exploited the client.”

FURTHER  DISCUSSION ON THE ISSUE

While the current language in (i) is vague, often the paragraph has been construed by the Department of Regulatory Agencies boards for licensed and nonlicensed psychotherapists to mean that a psychotherapist violated the law if he or she had any relationship in addition to the therapeutic relationship with a client. Such other relationship is then categorically considered to be one where it was “likely” the therapist would act with impaired judgment or a relationship where, categorically , there was a “risk” of the client being exploited.    

Guilt by such categorical association precludes consideration of benefit to the client as a possibility because of the dual relationship. It also precludes any consideration that a dual relationship was unavoidable such as in a rural or church setting.

Interpreting this constitutionally vague paragraph (i) to be a categorical prohibition is actually in conflict with (g) of this section 12-43-222 (1).

“Standards of professional discipline” refers to the codes of ethics of the various practitioner groups such as the American Psychological Association (APA), the National Association of Social Workers (NASW), the American Counseling Association (ACA), the Colorado Association of Psychotherapists, and others.

Almost all of the codes of ethics of these groups address the dual relationship issue by saying that dual relationships should be avoided when there is a risk of impaired judgment or exploitation. Most do not recommend a categorical prohibition . Many acknowledge that some dual relationships are unavoidable (NASW) and some have recommend that therapists should carefully monitor “such relationships to prevent potential harm or abuse to the client.” (Feminist Code of Ethics, Section III, Overlapping Relationships )

Some ethics standards encourage that when a dual relationship cannot be avoided the therapist should “take appropriate professional precautions such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs” ( ACA Code of Ethics and Standards for Practice (1996) Section A.6.a Dual Relationships.)

Even the California Association of Marriage and Family Therapists (CAMFT) states in their code that “ not all dual relationships are unethical, and some dual relationships cannot be avoided .”

These more humane approaches to dual relationships in the various codes of ethics came about around 1992 when the American Psychologists Association (APA) rewrote their provision on dual relationships. Psychotherapists had begun to recognize that a categorical prohibition against all dual relationships was not necessarily appropriate or helpful to either the client or the therapist. There began to be a recognition that some dual relationships were unavoidable and others may actually be beneficial and that the psychotherapist needed to measure whether there was benefit or risk prior to entering into any dual relationship . (Dual Relationships and Psychotherapy, Lazarus & Zur, 2002).

The APA also added that "Multiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical." 

Generally, these standards indicate that some dual relationships may have the risk of the psychotherapist operating with impaired judgment or have the risk that the psychotherapist may exploit the client and that it is the psychotherapist's ethical responsibility to carefully measure and assess those risks prior to entering into such relationship.

By Greg McHugh CCHT, CAP Legislative Chair 
gregmchughcht@earthlink.net   303 995 4276  

We invite all psychotherapists to join us in taking psychotherapy to a new level here in Colorado.You may become a member of  CAP at www.coloradopsychotherapists.com   You may send a donation to support our lobbying and legislative efforts to:

CAP
PO Box 100067 Denver, CO 80250
www.coloradopsychotherapists.com

You may email me directly with questions: president@psychotherapists.com

All my best,
Zoilita Grant MS. CCHt. 
President of the Colorado Association of Psychotherapists
Vice President of the American Council of Hypnotist Examiners
Director of the Colorado School of Counseling Hypnotherapy
2006 Life Fellow International Medical and Dental Hypnotherapy Association
www.coloradohypnotherapy.com
www.selfhealing.com