Keeping Duties Straight in Alternatives to Direct Patient Care

Psychologists frustrated with managed care’s constraints increasingly look for ways to use their training outside the traditional practice of direct patient care. Two sub-specialties proving attractive to many are forensic practice and organizational or occupational practice. Both bring with them particular risks that can be managed and insured, once the practitioner recognizes them. It is particularly important for the new specialty practitioner to appreciate the different "duties" inherent in this practice and to understand that some professional liability policies may not cover the risks posed by these specialty practices in their basic policies.

Many of the risk management issues unique to these specialty practices evolve from the concept of "duty." Reminder: for a plaintiff to bring a successful tort suit against a defendant, the plaintiff must demonstrate that (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; (3) the plaintiff suffered damages; and (4) the damages suffered were caused by the defendant’s breach of the duty.

In providing therapy, a psychologist owes a duty of care to the patient. The duty requires the psychologist to treat the patient in conformance with the standard of care. Part of the standard of care is to maintain the patient’s confidentiality. (In certain cases, based on state law, the psychologist may also have a duty to others, arising from treatment of the patient: a duty to report suspected child abuse or a duty to protect the public, or an identifiable victim, from likely harm at the hands of the patient, etc. Discharging this duty may require the psychologist to breach the patient’s confidentiality.) Most psychologists understand this duty implicitly and have little difficulty discharging it in conformance with the standard of care.

In forensics practice, however, there are "examinees" or "subjects." There are no "patients"; thus, all the duties that arise from the therapist-patient privilege must be reconsidered. For example, if a psychologist has been retained by a county court to examine persons accused of crimes to determine whether they are competent to stand trial, the psychologist has no duty to provide therapy to the subjects of the examinations. Rather, the duty is to conduct the examinations in accordance with the standard of care for such examinations and to report objectively the psychologist’s findings to the court. Of necessity, this will require reporting to the court information disclosed by the subject of the examination; there is no duty to keep this information confidential, however, because there is no therapist-patient privilege in this relationship.

Similar issues arise in occupational or organizational practice. For example, a psychologist has been retained by a corporation’s senior management to analyze how they can most effectively rebuild team spirit after a merger and downsizing. If the psychologist is to fulfill his duty to the corporation, his findings regarding poor morale, "survivor’s guilt" and turf warfare must be reported to senior management, along with recommendations for replacing this destructive behavior with teambuilding behavior.

The absence of a legally enforceable duty may not prevent someone from feeling victimized and filing suit against the psychologist. Many lay people assume improperly that anything they tell a psychologist is privileged, even in the settings described above. They may be distressed to find that what they told the psychologist was reported verbatim to the court or to their employer. How can a psychologist manage this risk?

Good risk management dictates that in any professional encounter, the psychologist should explain the nature and scope of the relationship, if any, between the parties. For example, in the first example above, the psychologist could begin by saying: "I am Dr. Mary Smith. I am a psychologist hired by the County Court to talk to you to see whether you are able to help your lawyer defend you in your trial for robbery. I am going to tell the judge about our conversation today. I am going to tell him about the questions I ask you and your answers to my questions. I am also going to give the judge my opinion as to whether I think you can help your lawyer or not." In so doing, Dr. Smith has effectively explained to the subject the purpose of this encounter, and how she will use the information she learns. Further, the subject should understand that there is no confidentiality in this encounter. (Of course, the explanation must be tailored to meet the needs, and limitations, of the person being examined.)

In the corporate setting, senior management should advise the staff that an organizational psychologist has been retained to help the company regain its sense of purpose and identity. Further, the psychologist should explain to all those he interviews that he will be reporting his observations and analysis to senior management. He should also make it clear that he is not there to "treat" anyone.

A word about liability insurance: Although forensic practice and organizational practice have been around a long time, many liability policies cover only the risks inherent in direct patient care. Psychologists interested in these other practice types would be well advised to ensure that their liability policies cover this kind of practice. Most companies, if their policies do not already cover forensic or organizational practice, can provide such coverage at minimal additional expense.

In closing, when psychologists blend practice specialties - some therapy, some forensics, some corporate consulting - they must keep in mind their duties, and to whom they owe those duties, in every professional encounter.

"Keeping Duties Straight in Alternatives to Direct Patient Care" appeared in "National Psychologist"