SPECIAL REPORT

Sexual relationships continue to top list of licensing board
complaints against mental health professionals

   Child custody is the newest “hot button” for licensing board complaints—as we’ve discussed in a number of articles. Even so, the biggest legal and ethical misstep remains that old standby: sexual misconduct.
   And despite reports we’ve seen of an increase in complaints against female therapists, the lion’s share of misconduct accusations are still made against male therapists by female clients.
   Attorneys we speak to are careful to remind us that accusations and guilt aren’t the same thing. Often, they tell us, complaints occur because therapists fail to pick up danger signals. By the time they realize there are sexual elements involved, it’s too late and a board complaint has already been filed.
Below, we examine six cases in which therapists—innocent or otherwise—have been caught up in a damaging sexual relationship scandal. What went wrong—and could the problem be fixed? And how do therapists prevent such problems from cropping up in the first place?
   These cases come to us from three attorneys: 1) Thomas Hartsell, a Dallas lawyer who specializes in defending therapists at the licensing board level; 2) Glennon Karr, a lawyer in Columbus, OH, who does the same kind of work; and 3) Martin Williams, a California forensic psychologist and litigation consultant who testifies both for defendants and complainants in civil suits.
   1. The client who flipped: A patient came to see an Ohio therapist. The therapist had determined ahead of time that the patient was a borderline. Nevertheless, says Karr, “he actually got seduced—that’s not an excuse, of course.
   “He starts having an affair, starts having sex right in the office, and then bills the insurance company for the therapy session. This is pretty bad.
   “His wife finds out about it and he decides to break it off. Anytime you try to break anything off, or terminate, with a borderline, that’s a risk. What she did was a flip on him at that point.
   “She immediately reported it to the board, hired a lawyer and filed suit. The therapist got evaluated. She ended up with a couple hundred thousand dollars which the insurance company paid.” His license was revoked.
   “Typically the therapist has their own issues they’ve never dealt with. Not to excuse it, but a lot of times it’s the therapist who does get seduced in these relationships. They can’t handle the transference and counter-transference and whatever else is involved, and they go into the relationships.”
   2. The shakedown: A Texas therapist who worked for a religious organization came to see Hartsell. She’d been seeing a female client for both therapy and sex, on and off, for 15 years.
   “They interwove therapy with the sexual relationship,” says Hartsell. “It went on until the patient decided to shake down the therapist and the organization for a lot of money.
   “A substantial settlement was paid (in excess of $100,000), and a release was signed which probably isn’t worth the paper it’s written on. Fortunately, this patient has never filed a complaint with the licensing board. I’m waiting for her to come back and ask for more money.”
   Hartsell says other therapists in the practice knew what was going on and said nothing. “They didn’t turn in their own person. It was a snowball of ethical violations.”
   3. The bum rap: A therapist who described himself as “a hugger” was hauled before a licensing board for what Hartsell says amounted to “wandering hands.”
   In Hartsell’s opinion, “what the therapist describes as a supportive embrace at the end of an intensive therapy session is perceived completely different by the client. Just stupid stuff like, ‘The therapist ran his hand over my backside and over my buttocks.’”
   Hartsell and his client went before the licensing board, where the therapist admitted to being a hugger—in his neighborhood, at church, everywhere.
   “The board was getting upset with him. I finally asked them, ‘Show me in your rules where it says you can’t hug a client.’ They decided not to sanction him.”
   4. Consultation to the rescue, part 1: A woman came to see a therapist after her husband discovered she’d had two affairs, one with a neighbor.
   “They were working on why she had this propensity to begin with,” says Hartsell. “But then she decided she couldn’t take off work anymore—would he mind seeing her at 6 pm, when everyone was gone? He agreed to that.
   “And then she said, do you mind if we double up on sessions? He said OK, we’ll do that. And then she started wearing sexier clothes.
   “She was slowly seducing him, but he wasn’t perceptive enough to figure it out. She eventually made a pass at him and he rebuffed her. She got angry and filed a complaint, alleging that they had sex.
   “Fortunately, he had consulted with another therapist after she made the pass, and he made a note in his file that this other therapist had recommended termination. So he terminated with her.
   “She came in and got her records and she saw the note about the other therapist. She called the other therapist and tried to convince him to call her original therapist and get her back into therapy. In that conversation, she admitted to having made a pass at the first therapist.
   “We were able to get an affidavit from the other therapist. He survived and didn’t get a public sanction. The board basically sent him a letter of instruction telling him not to be so stupid.”
   5. Consultation to the rescue, part 2: A female therapist had been treating a female client for eight years. There was no dispute that a dual relationship developed.
   The therapist fed the client’s dog when the client was in the hospital. She exchanged small gifts with the client. They took walks outside the office.
   During one session, the therapist told the client she would have to see a psychiatrist to evaluate her medication before she would be able to continue therapy.
   “The patient had become very unstable and disruptive,” says Williams. “The therapist set a limit and said you have to do this.
   “But the patient was so offended. She cancelled all further sessions and filed a lawsuit.” One of the charges was that a sexual relationship had taken place. Williams says that the therapist had admitted to hugging, but denied sex had taken place.
The jury exonerated the therapist. “They believed my testimony that feeding the patient’s dog from a risk management point of view was a terrible idea,” Williams says. “But there was nothing unethical about it. It was due to a case of kindness.”
   But a major contributing factor to the finding was that the therapist had continually consulted with colleagues about the case. “They always say that the best thing for risk management is to consult. And this therapist had consulted more than any I’d ever seen.”
   6. The $160K kiss: After a session, a patient threw her arms around her psychiatrist and kissed him passionately on the lips. The psychiatrist briefly returned the kiss.
   “After the session,” says Williams, “the psychiatrist realized he’d made a big mistake. He wrote the patient a note admitting what he’d done, and saying he would like to discuss it in future sessions. She immediately filed suit.
   “There was a trial, and the jury decided that regardless of any mitigating factors, such as it was unlikely that any harm had occurred, sex had taken place and they awarded her $160,000 for this one episode.
   “The irony is that if he hadn’t written the note, and if he’d just denied it ever happened—not that you should lie under oath—it would have been a he said/she said and the outcome would have been very different.”
   Contacts: 1) Tom Hartsell Jr., 850 Central Parkway East, Ste. 230, Plano, TX 75074, (214)363-0555, www. thomashartsell.com; 2) Glennon Karr, Ohio Psych Consultants, 1328 Oakview Dr., Columbus, OH 43235, (614)848-3100, www.karrlaw.com; 3) Martin Williams, 2033 Gateway Pl., Ste. 500, San Jose, CA 95110, (888)225-9957, www.drmwilliams.com.

October 2007