Some social alliances are so inherently destructive to the professional relationship that they are defined as malpractice, as in the case with sexual associations between psychotherapists and their clients. In some states, this kind of behavior is criminalized. Sexual relationships between other health and human service professionals, e.g., social workers, physicians, nurses, and attorneys, are somewhat more complicated to analyze because the purposes of these professional relationships are not as immediately and irreparably harmed by inappropriate sexual behavior as the psychotherapeutic bond is. Nevertheless, if one performs a thorough conflict of interest analysis, any sexual relationship with a client would appear to compromise the professional’s ability to deliver services objectively and be so inherently coercive as to substantially interfere with the client’s ability to consent voluntarily to the professional relationship. This is the position adopted by the NASW, APA, and NBCC Codes. Social workers, for example, are admonished in the NASW Code’s Ethical Standard 1.09a, “under no circumstances to engage in sexual activities or sexual contact with current clients, whether…consensual (or not).” Similarly, the APA Code (Ethical Standard 10.05) warns psychologists not to engage in “sexual intimacies” with current clients. Finally, counselors are advised flatly in the NBCC Code (Section A10) that “sexual intimacy” with clients, together with physical and romantic intimacy, is unethical. These clear standards may be the most binding and enforceable in all three ethical codes, a fact reflected in data suggesting that sexual misconduct accounts for the most instances nationally of disciplinary actions by licensing boards against behavioral health professionals. The treatment of sexual misconduct through license revocation proceedings alone has an important flaw: A mental health professional who has lost a license through sexual misconduct without further consequences can conceivably continue to practice as a therapist in some states simply by using a practice designation that is not regulated by law, i.e., by calling oneself a “psychotherapist” or “lay therapist.”
Providing services to clients with whom a past sexual liaison has taken place has the strong potential for undermining the professional relationship. The legal conflict of interest analysis suggested here should lead the decision maker to conclude that this kind of situation blurs professional boundaries, threatens exploitation of the client, and compromises the ability of the provider to offer reasonably competent behavioral health services. For this reason, ethical codes take a strong stand against the provision of clinical psychotherapy services to partners of a past sexual relationship (see, e.g., the NASW Code’s Ethical Standard 1.09d and the APA Code’s Ethical Standard 10.07), but only in the case of psychologists does the APA Code plainly require that the provision of psychotherapy services to such individuals is absolutely ruled out. No such prohibition is imposed against counselors in the NBCC Code, nor does it seem to apply to social workers not engaged in psychotherapy. Considering the fact that counselors and social workers frequently engage in such diverse fields as school based counseling, agency administration, program development, community organizing, and other human services not involving direct clinical interaction, this interesting omission leaves the behavioral health professional without specific ethical guidance covering this practice situation. Here again, the decision maker is urged in such contexts to complete the conflict of interest analysis outlined in this section.
Engaging in sexual liaisons with former clients also raises significant conflict of interest questions. In this circumstance, the professional relationship technically has terminated before the commencement of the sexual association. Here, however, there exists a profound risk to the former client that the lingering impact of the prior professional relationship may be used coercively as a means to manipulate the person into the sexual affiliation. This danger is especially acute when psychotherapy has been provided. In such cases, the intense professional relationship that existed during the formal treatment phase has a permanent effect on the continuing mental health of the client. Therefore, the progress the client has made may be jeopardized if the relationship with the past therapist becomes inappropriately personal. Viewed in this light, a psychotherapist should regard any professional relationship and the duties imposed by it as extending beyond the formal termination date of services.
The present conflict of interest discussion might reasonably lead a decision maker who has provided clinical services to a client to conclude that involvement in a sexual relationship with the former client violates the duty to practice reasonably competently because it can be expected to have an impact on the client’s continuing health. This is the position of many state legislatures, which have criminalized sexual relationships between psychotherapists and former clients where the professional services have only been terminated for a relatively short time (as an example, one year in New Mexico) (N.M. Stat. Ann. §30-9-10(A)(5), 2008)). Even when such conduct is not criminal, it still may be so inherently harmful to the former client as to constitute malpractice. This danger may or may not be present in the case of sexual relationships between other human service professionals, such as social workers and counselors providing solely informational (i.e., non-clinical) services, and their former clients.
Ethical codes in the mental health disciplines (see, e.g., the NASW Code’s Ethical Standard 1.09b, the NBCC Code’s Section A10, and the APA Code’s Ethical Standard 10.08) suggest that sexual relationships with former clients are to be avoided, and these codes place the burden on professionals seeking to engage in such relationships to demonstrate the absence of exploitation. In the case of counselors and psychologists, according to the NBCC and APA Codes, respectively, this burden includes the passage of at least two years since the termination of services.
One could certainly conclude reasonably that the ethical codes’ treatment of sexual relationships with former clients is too unrestricted. One could argue additionally that the legal standard in place—the duty to practice reasonably competently—probably would never condone the involvement of psychotherapists in sexual relationships with past clients, no matter what the therapist’s specific discipline is, or the length of passage of time between the professional relationship and sexual association; the danger of harm to the former client is too strong and obvious. With this point considered, is it ever possible for the professional to overcome the presumption that sexual relationships with former clients is inherently harmful? Consider the case of a social worker or counselor serving as a hospital patient advocate. The patient advocate’s services during the client’s one-day hospital visit consist of communicating the client’s grievance concerning the hospital’s food to the administrative staff. Ten years pass, and the advocate has been reintroduced to the former client at a social event; she and the client now choose to pursue an intimate sexual relationship. Whether the relationship should be avoided depends in large measure on the advocate’s assessment of the potential harm to the former client. Applying the test suggested above, the advocate might reasonably conclude that the prior professional relationship terminated at the time of the hospital discharge, and that the professional relationship that previously existed has no continuing impact on the client’s present well-being. Indeed, applying the reasonable competence and informed consent principles to this analysis, both would seem to be somewhat more forgiving of sexual relationships initiated some time after the termination of non-psychotherapeutic services.