Are all modalities of psychotherapy equal under the law?
Well, not exactly. The general “standard of care” is the reasonable care that would be taken, under the circumstances, by a practitioner trained and experienced in the particular school of therapy being practiced—as long as that school of therapy is recognized by a “respectable minority” within the profession.
If the school of therapy does not even have a “respectable minority” behind it, you are truly going out on a legal-ethical limb. This also goes for one-time interventions—for example, giving a “far out” homework assignment like telling a client to go skinny-dipping or attend a shamanic ritual. Just recognize that in the event of a lawsuit or board complaint, your treatment might be deemed below the standard of care.
But even for those therapeutic modalities supported by a “respectable minority,” you incur greater risk to the extent they are outside the mainstream. Non-traditional therapies include, for example, aromatherapy, light therapy, and animal-assisted therapy. The solution, other than avoiding non-traditional modalities, is to consult with a colleague, document the consultation, and document the client’s fully informed consent. We address informed consent in depth in our CE Course: Minimizing Legal-Ethical Risk in Psychotherapy, which provides a template informed consent form.
What should this documentation look like? Consider the arguments you would need to make, later on, if anyone alleged that your treatment was negligent. The documentation should support these arguments:
- you carefully considered the use of this modality for this particular client;
- you consulted with a capable and qualified colleague;
- you and the colleague reasonably believed the modality would not entail serious or undue risks for this client;
- you and the colleague reasonably believed the modality could benefit this client; and
- you fully explained the risks, limitations, benefits, and potential alternatives to the client, who voluntarily consented to this treatment.
Don’t be afraid to use this particular language in your notes, while fleshing them out in concrete detail. For example, specify why you think the modality does not entail serious risks, who your colleague is, and why you consulted with him or her.
The more “non-traditional” the therapy you are considering, the more it makes sense to provide an abundance of information, such as books or websites on the topic. You may also ask the client to sign a confirmation sheet that you have provided extensive information, they understand the nature of the treatment, and they are comfortable with the techniques you will use. This will show that their consent to treatment was truly “informed.” You could include all this information on your standard informed consent form.
Also, review your malpractice policy—and/or contact the insurer or an insurance agent—to find out if a particular treatment modality is covered. Insurance policies contain exclusions, and you want to avoid, if possible, a mismatch between your policy and your practice. See our guide to malpractice insurance contained within our CE Course: Minimizing Legal-Ethical Risk in Psychotherapy.
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