On academic behavioral codes and “counseling out”

I have recently found myself participating in several group discussions concerning the subject of how we social work academics should go about drafting behavioral codes for our schools. Some have suggested adopting very inclusive codes that attempt to cover every possible instance of behavioral misconduct, including such things as “unprofessional use of speech,” “‘bad-mouthing’ of professors and schools,” and other questionable categories. Some have expressed the concern that failing to address sufficiently certain instances of behavioral misconduct might leave such behavior unchecked. I believe strongly that an analysis of 1st and 14th Amendment constitutional protections compels us to conclude that these provisions protect a student’s right to say and write many things that might make the majority of us unhappy. I therefore feel that a policy of “less is more” leaves schools as well as students better protected. Specifically, I think that limiting the definitional scope of behavioral misconduct to acts that are clear and unambiguous — including disruption of class and field environments, hate speech that is overtly threatening, plagiarism, as well as several related areas — protects schools from constitutional challenge and also secures the speech and privacy rights of students under the Constitution. I want to note that the impulse to regulate behavior as thoroughly as possible is understandable. However, overregulating student behavior is something we need to avoid. Put somewhat differently, it does not make sense to create important policy based mainly on a desire to address a very small minority of misbehaving students while purporting to restrict the vast majority of students who are entirely behaviorally compliant. In this sense — and I argue this both as a lawyer and a social worker — a constitutional analysis of limitations on behavioral codes both supplies the right legal “answer” and advances social work goals.

Guest question: Child abuse dilemma

Trisha Justin seeks advice in resolving the following dilemma: A child care worker is sent to the home of a woman who has abused her child. The child is taken into protective custody and eventually given to a foster mother until the biological parent is able to care for her son again. Three years pass and the biological parent has done everything to get her child back according to the laws of her state. The foster mother has gotten used to the child in her home and wants to adopt him. She is skeptical of giving the child up for fear that the child will be abused again. What would you do? Your responses are appreciated! The webmaster has posted his own response.

Does “counseling out” students from university programs violate their constitutional rights?

Please consider the following fictional scenario: Dr. Dolores Hickey teaches psychology at a public university in Amherst, Massachusetts. At a monthly faculty meeting with her colleagues, she �staffs� students, meaning that she identifies those who appear to be having major academic issues, personal problems interfering with their educational progress, or other difficulties. Dolores, a licensed clinical psychologist, has much experience in the diagnosis and treatment of mental disorders and brings this knowledge to her classroom interactions with students. Her classes tend to be �hands-on,� with students encouraged to achieve self-awareness by sharing personal issues with the class. She regards this classroom exercise as an important aspect of the use of reflective insight in psychology, a task encouraged by some professional educators. At the most recent student staffing, Dolores discusses Wanda Moreno, a second-year master�s student and the daughter of Puerto Rican immigrants to the U.S. Wanda, according to Dolores� description, is a �C� student and has looked �overwhelmed� in class for the last four weeks. She sits silently, never participating in class discussions, and, additionally, she looks �withdrawn and depressed.� Although her class papers have been submitted on time, they are sparsely written and lack self-disclosure, a specific requirement described in the course syllabus. Wanda has declined all of Dolores�s requests for a meeting to discuss these observations, and Dolores now seriously questions Wanda�s emotional maturity and appropriateness for psychology practice. She seeks her colleagues� advice on whether Wanda should be �counseled out,� a process by which university faculty and administrators deliver a strong, personal recommendation to a student to withdraw voluntarily from their degree program. This scenario represents a classic and unfortunate example of a threatened interference with fundamental constitutional rights by a state actor under color of law. The fundamental rights involved here concern Wanda�s personal privacy and self-expression, both liberty-related privileges recognized under the First and Fourteenth Amendments. Wanda�s personality, her manner of personal expression, and her attitude toward Dolores are her own business until such time as the state actors�university faculty members and administrators�can present a compelling reason for interfering with them. A compelling reason here would need to be grounded in the university�s important public responsibilities, which include the training of competent psychologists and the maintenance of an orderly and safe classroom environment in which to perform that task. In the absence of any showing that Wanda�s behavior either violates the university�s academic standards or interferes with classroom decorum or the rights of other students and faculty members, no compelling reason exists to address Wanda�s behavior. Even assuming that Wanda�s behavior suggests clinical issues�a conclusion that is as yet highly suspect�the evaluation that Dolores appears to be offering is not reasonably related to her role as a psychology educator. Rather, it threatens to use the power differential between professor and student to impose clinical assessment and �treatment� on an involuntary client. In this respect, the scenario raises clear informed consent issues. In constitutional terms, Wanda has a liberty-related right to remain free from arbitrary counseling. This case example can be understood alternatively as an equal protection dilemma. The school�s counseling out of Wanda�the state action performed by Dolores and her colleagues�can be regarded as a classification based on Wanda�s fundamental right to privacy and self-expression, as discussed earlier. The foregoing constitutional review of Wanda�s case is not intended to suggest that a student�s communication can never be interfered with or classified by a public university. The grading of examinations and papers is one such example of a classification. In contrast to the categorization attempted by Dolores in this case example, however, grading is reasonably related to the university�s essential purpose, and uses uniform standards that keep students more or less on an equal footing. Students� performance in field practicum and clinical training placements may also require faculty evaluations that grade students on the basis of their communications with clients and co-workers. Here again, however, such evaluations must be narrowly tailored to serve the limited purpose of evaluating student competence objectively in specific tasks. The use of due process and equal protection analysis was described earlier as a means of promoting diversity. The present case example offers a compelling demonstration of this point. In cross-cultural professional relationships, diverse communication styles may sometimes be inappropriately labeled as a failure�often by a minority student�to conform to expectations. By strongly discouraging this type of labeling, the duty to treat clients with due process and equal protection offers specific protections to all recipients of government services, including students. Moreover, recognizing the applicability of due process and equal protection can help to discourage the use of speech based classifications as a proxy for more odious categorizations, such as those based on race and ethnicity. The present case example also raises interesting procedural due process concerns. In the scenario, Wanda plainly has a property right associated with her education. It cannot be regarded as fundamental, because no constitutional protections�either federal or state�have yet recognized the right to an advanced professional education. Wanda�s property right is protected, however, by procedural due process. In her situation, the counseling out process may be used�either intentionally or not�as an informal, less confrontational form of gatekeeping, i.e., the process of determining the eligibility of entrants into the behavioral health professions. When it is practiced in the manner described in the present case example, it serves to eliminate the procedural rights that a public university student should have, including notice of the reasons justifying formal disciplinary action and an opportunity for a hearing. The faculty�s �request� to a student that she withdraw from classes under the circumstances presented is not much different from a police officer�s �request� to enter the home of a person having a loud party. Both requests take advantage of a position of authority, and both may be intended to accomplish a specific end without formal process. Wanda�s dilemma offers vital guidance to decision makers considering the impact of constitutional protections on practice problems. As the case example suggests, mastery of the principles underlying due process and equal protection offers decision makers practical assistance in the consideration of critical, cross-cultural practice dilemmas. Moreover, Wanda�s case demonstrates that a client�s right to life, liberty, and property has concrete implications in all elements of behavioral health practice.

What is “natural law” and how should it affect mental health decision making?

A key factor demonstrating the bond between law and ethics is natural law theory. An integral part of the precepts forming the foundation for the United States Constitution, this approach views natural law as consisting of the principle of practical rationality. Thus,
according to natural law theory, all persons tend to possess an “intrinsic directedness toward the various good that the natural law enjoins us to pursue,” and this includes at least in some but not all interpretations of natural law the recognition that it is a product of divine providence. Just as importantly, natural law assumes that its precepts are knowable to human beings. For those natural law theorists who look to practical, rational discourse and human behavioral tendencies to understand the development of moral precepts, there is a clear line of connection between natural law and the development of ethics and ethical codes.

Informed consent and reasonable competence in faith based therapy: an example of an unacceptable mental health practice approach

Here’s an example of an excellent question concerning a case example from the world of practice that was posted on a social work listserv. A response is posted below it. Other comments would be appreciated. “Social Workers are expected to use evidence to support our practice. What if the agency with which we are employed bases intervention practices on belief and dismisses the evidence that disputes the agency intervention practices? An example would be a mental health agency that has as a focus ‘rehabilitation’ of homosexuals based on the belief that homosexuals are barbarians that must be disciplined, educated, etc. What are the ethics of this for a social worker employed as a counselor with the agency?” Response: This is a great example of a dilemma that is plainly addressed by using a cross-disciplinary, law based decision making framework, such as the one promoted on this website! The practice of “reparative” therapy simply is not in conformance with reasonable competence and informed consent-related principles, which are both basic legal doctrines. As I’ve already said, I think a law based analysis is in order. The law of informed consent requires all agencies — including faith based inititatives — to explain the risks and benefits of all available services and/or treatment approaches — to their clients; this includes alternative approaches that the agency does not advocate, and also includes a full discussion of the risks of the services the agency does offer. If you’re thinking that this means a lot of agencies out there are in violation of the law of informed consent by not including full disclosure, I agree with you! I think that in the case of faith based approaches, the intervention can only be lawfully used if it is safely within the realm of a reasonably competent practice — in other words, if prudent mental health standards would consider it to be safely applied and the client can therefore reasonably and voluntarily agree to receive it. Even then, the risks and benefits of the procedure must be fully explained. Even with full disclosure, if the intervention is so inherently dangerous that the it violates basic principles of prudent mental health practice, the practice is not reasonably competent.

More about ethical codes and their urban bias

A review of the major ethical codes in the mental health professions reveals that they do indeed tend to emphasize practice goals all too often from a national, urban perspective, with precious little attention paid to regional variations and cultural issues in practice. For example, the professional counselors’ code of ethics — the NBCC Code, Section A2 — cautions professional counselors that, when they accept employment with an agency or other employer, this acceptance implies agreement with institutional policies and procedures. To highlight the over-rigidity of this provision, note that in the case of a counselor’s employment with a national system of mental health providers, the provision appears to encourage allegiance to professional practices that might not represent the best interests of persons within a particular community. One could certainly argue that clients who live in a rural setting, speak a language other than English, or whose cultural affiliation demands flexibility in the delivery of treatment modalities, the NBCC Code would do well to encourage counselors to impart culturally competent strategies with clients. Unfortunately, the only reference to diversity within the NBCC Code, contained in Section A12, advises counselors rather imprecisely to have “awareness of the impact of stereotyping and unwarranted discrimination.”

Do ethical codes have an urban bias?

Consider the following vignette: A licensed, certified professional counselor, Robert Wu, observes an elderly client, Harry Driscoll, in a local coffee shop in Smith River, California, a small, rural town in which both the counselor and the client live and work. Harry invites Robert to have a cup of coffee with him at a local coffee shop, which serves as the �watering hole� for the town�s population. What should Robert do? Following the decision making framework presented on this website, Robert recognizes no law that specifically forbids this type of socializing. Persuaded that a review of applicable ethical standards would supplement his legal analysis, Robert uncovers NBCC Code Sections A8, A9, and B9, which warn licensees to avoid dual relationships that may harm or impair professional judgment. Whether there is actually such a risk in this scenario may depend in some measure on the cultural and regional traditions of the people in Smith River, where Robert and Harry both live and work. Therefore, in this scenario Robert would be wise to consider the application of these ethical standards in the cultural context of the community. If the type of social encounter Robert and Harry are sharing is the norm, as it might be in many small towns, than the risk of harm or exploitation would seem to be low or non-existent. In fact, refusing to engage in a reasonably innocuous social encounter would appear to do little to interfere with the clinical relationship Robert and Harry have experienced, and might actually do more to harm the positive results obtained during the pair�s counseling sessions. It is interesting to note that a version of this practice scenario seems frequently to appear in ethics treatises, often with an author�s suggested resolution supporting the notion that professionals and clients should strictly keep their social distance in the interest of avoiding the creation of a dual relationship and blurring the professional boundary. This conclusion seems to be based on an overly rigid, formal, and urban slant that some treatises appear to adopt. The discerning professional more appropriately should engage in the type of analysis applied in this vignette, which explores the possibility that professional choices must be based on, among other things, a consideration of regional and social context. In this scenario, the fact that Robert could find no direct law impacting his decision to have a brief social encounter with Harry probably provides an important clue that one ought not to assume that any such encounter necessarily violates the best interests of the client; the absence of law here signals the need for contextual analysis rather than a search for consistency among hazy ethical standards.

Mental health research and legal decision making

Consider the following fictional scenario:

Patricio Ortega, an adjunct research professor at a university school of psychology, is undertaking scientific study to survey the presence of anxiety spectrum disorders within a population of elderly persons representing various demographic groups in a multicultural community in Miami, Florida. As part of the study, Patricio will conduct interviews with community members and distribute several assessment instruments commonly used by mental health professionals to identify anxiety disorders. Following completion of the research, treatment is to be offered as necessary to study participants at the university’s mental health clinic. Consistent with federal policy, Patricio has prepared an informed consent form in English and Spanish that outlines the benefits and risks that are expected from the research. He has obtained informed consent forms from a self-identified population of 75 Cuban-American immigrant participants (of whom 35 are monolingual Spanish speakers), 20 Non-Hispanic Whites, and 5 Native Americans.

Undertaking human subjects research is a potential minefield for mental health professionals not entirely familiar with the boundaries of informed consent. As already noted, federal policy has been developed to extend informed consent protections to human research participants, and it requires the establishment by research institutions, such as universities and medical facilities, of institutional review boards (IRBs) to monitor the satisfaction of informed consent. It is important for the researcher to know and apply the rules of informed consent discussed here in addition to relying on the IRB process to confirm the researcher’s compliance with these principles. The reason is that understanding the broad dictates of informed consent generally provides better, overall guidance for the researcher than do the confusing and sometimes contradictory internal standards adopted by state and private institutions for the review of research proposals. Often, this review is undertaken by an insular group—the IRB membership—lacking the time to give research proposals significantly more than a minimal examination for compliance with the federal regulations cited above. Indeed, psychological testing proposed at even renowned research institutions is occasionally prone to insufficient review.

One of the most prolific dangers connected with institutional research concerns the failure to fully advise already mentally ill participants of the risks posed by the research. For example, in some research the testing of mentally ill subjects may exacerbate symptoms; in other instances the questioning of those who have had mental disorders in the past may promote a relapse of the earlier symptoms. Moreover, an inadequate research design, including the use of instruments whose cross-cultural application has not been demonstrated, may lead to the over- or under-reporting of mental health symptoms by subjects who simply do not understand the questions being posed. If clinical services are then offered to test study participants, some may ultimately agree to an unnecessary intervention. In other words, the satisfaction of informed consent depends upon a culturally competent research design.

What do these issues reveal about how Patricio should undertake his research study? In this case example, Patricio must have his research proposal evaluated by the university’s IRB to assess the anticipated risks of the research, the expected benefits, and the quality of the informed consent that has been sought. However, even if the IRB approves Patricio’s research design he still must take reasonable steps to verify the cultural and regional appropriateness of his methodology. Additionally, he should implement such procedures as are necessary to ensure that the risks and benefits of participation are truly understood. This may present a significant problem when subjects are frail or vulnerable, where language or literacy barriers exist, or when cross-cultural communication may influence the expectations of the participants. At the very least, Patricio must be mindful of the presence of anxiety, PTSD, and related disorders among immigrant populations and understand that his research format must account for the risk of retraumatizing participants. This is especially true in the light of evidence suggesting the experience of cognitive and memory difficulties that may be present in PTSD sufferers.

In this scenario, in order to ensure that study participants actually understand the risks and benefits presented by the research, Patricio and his staff must be willing to dialog with study participants before, during, and after the undertaking of the research. This multistep process promotes issue clarification and absolute support of the participants during the stress of the testing. Should Patricio and his staff choose instead to rely simply on the dissemination of an informed consent document at the commencement of the testing, this will almost certainly violate both the letter and spirit of informed consent, especially when the form may be nearly unintelligible to participants who are elderly and lack significant formal education. Even if participants cannot understand the form, the avoidance of verguenza and deshonra (shame and dishonor, respectively) may well lead those reading the form to claim understanding even when they do not understand it. For these reasons, Patricio should consider the use of trained, multilingual clinical assistants who are available to provide ongoing support and psychological reinforcement to study participants and who can facilitate the discussion of questions that study participants may have throughout the undertaking of the research.

Patricio must also be prepared to ensure the voluntariness of his participants’ involvement. Where Patricio has advised prospective study participants that he is prepared to offer clinical aftercare services to them, both their voluntary consent to the research and the integrity of their responses to test questions are questionable; stated simply, the possibility of aftercare may unduly influence participants to take part in the study.

An additional informed consent problem is caused if study participants ultimately accept Patricio’s offer to provide clinical services to them; specifically, the link between the research and the services raises a question as to whether the services have actually been sought voluntarily rather than driven solely by participation in the research. Furthermore, Patricio’s own involvement in the research may limit his ability to obtain informed consent for his clinical work with participants. The reason is that his willingness to provide treatment is at least partly grounded in his professional interest in the research study, including the scholarly publications and potential financial remuneration that may result. The effect is to create a conflict of interest that may influence the treatment stance he takes with his future clients; at the very least, it threatens the independence and reliability of the clinical services and therefore compromises his clients’ best interests. This type of conflict is a risk that all research participants—and prospective clients—need to understand.

For the foregoing reasons, Patricio best obeys the principles of informed consent if he refrains from offering any clinical services to research participants and instead seeks an alternative means of providing this care. Additionally, his conflict of interest should be explained to all participants in the research study at the commencement of the research. As a safe approach that honors the letter and spirit of informed consent, Patricio may wish to dissociate himself entirely from the aftercare program, leaving the provision of clinical services to a therapist not directly involved in the research.

Using HIPAA in legal decision making

In 1996, Congress enacted the Health Insurance Portability and Accountability Act (HIPAA), whose provisions have taken legal effect during the years 2003 through 2006. HIPAA addresses both the protection of workers’ health insurance and—more germane to this article—the prevention of health care fraud and abuse and the assurance of client privacy in health care settings. Although a comprehensive discussion of HIPAA’s policies is beyond the scope of this article, it is fair to note that mental health professionals and their agency administrators cite compliance with HIPAA as a major concern of mental health providers involved in the treatment of clients and the maintenance of confidentiality in client records. For this reason, a general discussion of HIPAA’s main points is appropriate here. With this said, however, it is also important to note that compliance with HIPAA is actually most easily assured if the prudent professional understands the elements of confidentiality and the relevant steps necessary for the resolution of practice dilemmas involving confidentiality (see the post entitled Mental health research and legal decision making).

HIPAA’s main sections address two main areas of concern: Title I sets forth rules protecting the health insurance coverage of workers who transfer or are laid off from their jobs. Title II presents rules specifically related to the assurance of privacy and confidentiality in the handing and management of client health information, referred to in the law as Protected Health Information (PHI). Title II’s provisions occupy the discussion presented here.

HIPAA’s Title II is often referred to as the Administrative Simplification (AS) section. The AS provisions are presented in three discrete provisions of Title II. These are referred to variously as rules governing privacy, transactions, and security. Each of these is discussed individually.

HIPAA’s Privacy Rule is intended to establish policies for the management of client data that come into the hands of covered entities—these include health care providers, health insurance companies, and other organizations that transfer data through paper or electronic transactions. These covered entities must observe certain practices in their handling of electronic versions and hard copies of PHI, which includes all information related to a client’s health status, the nature of services provided, and payment details. Specifically, covered entities must disclose to clients all PHI generated by the entity within 30 days after the client’s request. Additionally, they must disclose PHI to other agencies—usually for the purpose of seeking payment for services or health consultation with other providers—only upon the prior authorization of clients. Further, covered entities must take all appropriate steps to protect the confidentiality of all verbal and written communications held with clients. Covered entities must also create specific agency privacy policies and procedures consistent with HIPAA. In these policies and procedures, covered entities are to identify the individual agency workers responsible for the handling of client information. They must also appoint a Privacy Official responsible for the maintenance of these policies and procedures and the receipt of privacy-related complaints. Finally, the Privacy Rule mandates that clients be notified whenever PHI is shared with outside agencies to collect insurance, seek health consultation with other providers, or for any other purpose; clients have the specific right to challenge the accuracy of information contained in PHI.

The Transaction Rule presents HIPAA’s plan for the management of communications between health care providers and third-party payors. It establishes certain identifying codes intended to facilitate and expedite the exchange of Electronic Data Information (EDI). These codes are intended to make uniform the computerized coding of EDI, such that providers and payors, to the foremost extent possible, speak the “same language” when sharing EDI.

HIPAA’s Security Rule targets health information contained in electronic form, known as Electronic Protected Health Information (EPHI). The rule sets forth protections that require covered entities to adopt uniform policies and procedures relating to the handling of EPHI, identify those specific employees within each agency who are to use and have access to EPHI, and hold training programs designed to educate agency personnel in the management of EPHI. The Security Rule also requires covered entities to establish clear safeguards regarding employee access to computer and other electronic data management systems, and even requires steps regulating the installation and removal of computer systems and software used in connection with EPHI. These include adopting practices ensuring that transmitted information is protected from viewing by unauthorized parties, and the use of procedures that permit each covered entity to accurately identify and authenticate outside agencies with which they communicate.

As a final note about HIPAA’s overall effect, it has been reported by mental health researchers performing studies with human subjects that their procedures have been much affected. Specifically, researchers indicate that there has already been a HIPAA-related, negative impact on their ability to perform data based research that reports client/patient progress over time in health and mental health studies. Among other issues, researchers observe that HIPAA’s Privacy Rule requires the modification and expansion of informed consent procedures to better document each researcher’s intent to comply with HIPAA in the assurance of participant privacy. The complaints of some researchers notwithstanding, given the risk presented by human subject research to the mental health of participants (refer to the post entitled Mental health research and legal decision making), one could argue that the added protections introduced by the Privacy Rule may yet have an overall welcome impact on the enhancement of researchers’ conduct in human subject research.

Sexual relationships with mental health clients

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.