by Dr. Ofer Zur, Ph.D. 

 

(Editor's Note: Colorado law currently is generally construed by the licensing boards and the Mental Health Grievance Board to prohibit "dual relationships". CAP is seeking to address and change that through appropriate channels. This article is not an endorsement for violations of the statute, but is offered as a service to educate psychotherapists.)

 

The following is an excerpt of a longer article. Click here to visit Dr. Zur's website or to read the complete article.

Unlike the common myth that familiarity is an obstacle to therapy I have found it to be extremely helpful. Relying on a neurotic or psychotic clients' distorted reports is futile and a set up for failure. Also, clients' familiarity with my spiritual beliefs and personal ethics help them trust me more readily and realistically. Familiarity often shortens the length of therapy and increases it's effectiveness.
 
There is an unsubstantiated myth that familiarity and dual relationships interfere with the transference analysis. Transference occurs anywhere and anytime not only when facing a "blank wall." Whether or not I know the people or they know me outside of therapy, transference and counter-transference take place and if the clinician is so inclined the analysis can take place.
 
While privacy is often an important component in increasing psychotherapeutic effectiveness, it can also be a double-edged sword when it is used as an excuse for isolation. The privacy-secrecy argument also has been used to justify many therapists' attempts to hide, assert power inappropriately or exploit. Sexual exploitation is less likely to occur if the therapist is also working with the spouse of a client, or has an outside connection to the family, perhaps through church. In other words, sexual and other forms of exploitation are less likely to occur in therapy if dual relationships exist. Similarly, isolating clients in therapy gives the therapist undue power and an easier opportunity to exploit clients.

 

In the isolation of the office without dual relationships, therapists can easily blame the clients for their own ineffectiveness by using the famous "resistance" charge. The prohibition of dual relationships enables incompetent therapists to be unaccountable for long periods of time while they charge, exploit and harm clients by continuing therapy even when clients do not get better. So, we not only falsely charge them for services rendered, but, far more detrimental, we give them the sense that they are permanently and hopelessly damaged.

 

The problem of exploitation and harm lies not within the dual relationship, but in the therapist's propensity to exploit and harm. Therapists who tend to exploit will exploit clients with or without dual relationships. The Ethics Code must ban harm and exploitation, not dual relationships.
 
In a healthy society, unlike our modern culture, people celebrate their reliance on each other. The more multiple the relationships, the richer and more profound the individual and cultural experience. The witch doctor, the wise elder, and the practical neighbor all contribute advice, guidance and physical and spiritual support. In ministering to the needs of the members of the community, therefore, the healers, rabbis, priests, or therapists don't shun dual relationships, but rather rely on them for the insight and intimate knowledge that such relationships provide.
 
One must remember that neither dual relationships nor any relationship with a differential of power (i.e., parent-child, teacher-student) are inherently exploitative. While unpleasant to contemplate, it is altogether possible that many therapists cling to the false ideals of the segregated therapy session because it increases their professional status, imbuing them with undue power, which can all too easily be translated into exploitation.
 
More than half of America's businesses are family run, in which people experience the complexities of dual relationships, balancing blood and money. Similarly, working professionally with people I know outside of the office adds richness and unavoidable complexities to our lives.
 
In conclusion, the ban and demonization of dual relationships has come from an attempt to protect the public from exploiting therapists. Regretfully, it has emerged as a simplistic solution to a wide and complex problem. Even worse, the ban on dual relationships and the isolation it imposes on the therapeutic encounter tends to increase the chance of exploitation and decrease the effectiveness of treatment. It enables incompetent therapists to wield their power without witnesses and accountability. In addition it buys into the general cultural trend towards isolation and disconnection. We have been frightened into accepting the ban, but now it is time to think critically, be courageous and dare to be known by our clients. If we dare to cultivate multiple, non-sexual and non-exploitive relationships with our clients when appropriate, we can be better, more effective therapists.

 

(Note: I encourage any comments or opinions. Please share them by writing to: Greg McHugh, Legislative Chair, at Greg@GregMcHugh.com. All comments shall be shared with the CAP Board in their deliberation of position on this issue and possible legislative change.)

 

THE PRESENTING PROBLEM
Current Colorado law has a list of prohibited activities for all psychotherapists, whether licensed or unlicensed, regarding their practice. Performing any of the acts or omissions on the list is considered a violation of the Mental Health Practice Act. Among that list of prohibited activities is a provision that addresses "dual relationships" though it does not use that terminology.

While this language 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.    

 

This language does not give consideration to whether or not the psychotherapist actually acted with impaired judgment in the therapy sessions or whether the client was actually exploited by the psychotherapist.  Broad interpretation of the law says that a violation has taken place simply by the fact that there was a "dual relationship".

 

Further, there is no other language in statute or the regulations of the various boards that offers any clarifying boundary definitions. The boards, clients, psychotherapists are left to interpret and apply the vague phrases  "likely to" and "such as".

 

Also, no other provision in the list of prohibited activities under 12-43-222 (1) creates a violation based upon the likelihood that something harmful or injurious might happen. All the other activities that are violations in this act are those that are injurious or harmful and that have actually taken place, not ones that might take place.

 

Additionally, 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.

 

With such statutory language some psychotherapists have been considered in violation if they treated a person who also was a member of their church or lived in the same rural community (where there were no other therapists) or if they gave the client a ride home in a snow storm and there was no other transportation.

 

Moreover, interpreting this constitutionally vague paragraph (i) to be a categorical prohibition is actually in conflict with another provision of this section 12-43-222 (1). Paragraph (g) of that subsection states that the psychotherapist has violated this law if he or she:

"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 are unavoidable (NASW) and some recommend that therapists carefully monitor "such relationships to prevent potential harm or abuse to the client." (Feminist Code of Ethics, Section III, Overlapping Relationships)

 

Some ethical 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."

 

There certainly is documented history of the period prior to 1992 on how a categorically prohibitive approach to dual relationships developed over the years in the psychotherapy community. It reflects efforts of trying to proactively control and protect the world of the client. This approach was first developed in the 1970s and 1980s as the codes of ethics in most national associations of practitioner groups (psychologists, psychiatrists, social workers, marriage and family therapists, professional counselors) were first developing and evolving.

 

However, most of the codes of ethics started shifting to a more realistic and humanistic perspective 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).

 

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.

 

FOR DISCUSSION: TWO POSSIBLE SOLUTIONS OF THE STATUTORY VAGUENESS

12-43-222 (1) (i) CRS is what one lawyer called "constitutionally vague" and it needs to be clarified to reflect the generally accepted standards of care and to maintain protection for clients. This clarification can be done either through 1) regulatory rule in each of the licensing boards and the Mental Health Grievance Board or 2) through modification of the actual statutory language through the legislative process.

 

So a first approach at clarification so that the law or regulations "fit" with the nationally accepted "standards of discipline" would be to approach the various regulatory boards with a proposal for a new rule interpreting the statute. If this were not successful then I suggest that a statutory change would be in order.

 

In either case (a new rule or statutory change) I suggest (for discussion) that language in rule or law be written as follows:

While I do acknowledge this is not perfect language,I hope that it will stimulate further discussion about what language is needed to clarify what should be prohibited - the provision of services with impaired judgment or exploitation of the client in a dual relationship and the need for psychotherapists to assess any risks of such behavior through prior self assessment or consultation. 

 

Please share with us your thinking on this important topic.