Medical malpractice claims may be asserted against any healthcare provider, including counselors. The insured in this case was a licensed professional counselor (LPC) who had over a decade of experience. At the time of this incident, the LPC was working as an independent contractor for a group psychotherapy practice.
Summary
The client was a 20‑year‑old male who sought counseling for a longstanding history of anxiety and depression. He was concurrently under psychiatric care for medication management and pursued counseling to develop strategies for managing stressors that exacerbated his symptoms. At intake, the LPC completed an assessment and recommended bimonthly sessions. The LPC did not conduct an informed consent discussion regarding the expectations for therapy, policies related to after-hours communication or the limitations to counseling. After approximately two months, the LPC documented clinical improvement as evidenced by the client’s self-report of mood stabilization and decreased anxiety. However, the LPC believed that the client would further benefit from increasing the cadence of counseling to weekly visits so that they could pursue additional cognitive behavioral therapies, to which the client agreed.
Over the following three months, the therapeutic relationship decreased and gradually became personal, resulting in the development of a dual relationship. The LPC began sharing personal information regarding her own mental health via text messages and initiated frequent text messaging outside of counseling sessions, including evenings and weekends. The client later reported that he perceived the LPC as a “mother figure,” referring to her as “mom,” while the LPC referred to him as her “son.” The LPC did not recognize this as problematic at the time. As a result, the client became emotionally and psychologically reliant on the LPC to be able to function in his work environment and interact with his family. The client informed the LPC that he felt the need to communicate with her whenever he felt anxious or needed to make a decision, and she agreed to be available at all times.
The frequency of text messaging progressively increased, reaching 332 messages within a one‑month period. Despite the clinical nature of some exchanges, the LPC failed to document these communications in the counseling healthcare information record. Three months later, the volume had escalated to approximately 1,000 text messages per month, accompanied by communications on social media platforms. During this time, the LPC increased counseling sessions to three times per week, with sessions lasting two to three hours each, without corresponding clinical justification or documentation. The sessions were typically conducted after normal business hours and went unnoticed by others in the practice. However, during a billing audit, the owner of the practice identified that the LPC was billing for an exorbitant number of counseling visits with this client. She met with the LPC to communicate her concerns and provide consultation. The LPC fabricated an excuse stating that she was working on a specific behavioral modification technique that required additional sessions. The owner accepted this explanation but continued to conduct billing audits.
Over the subsequent six months, the client reported worsening depression and the onset of suicidal ideation, despite the increase in therapy. The LPC did not perform a suicide risk assessment because the client denied having a plan, and the counselor assumed that this was a transient complaint. The LPC referred the client to a psychologist within the practice for biofeedback therapy to learn how to self-regulate his physiological responses to anxiety-provoking situations and to identify any triggers. The LPC did not obtain informed consent to communicate or coordinate care with the psychologist, nor did she seek authorization to consult with the client’s treating psychiatrist. As the LPC’s relationship with the client became increasingly personal, she discontinued documenting counseling notes and instructed the client to memorialize their discussions. The client subsequently drafted his own therapy notes, purportedly to assist the LPC in managing her own stress levels. The LPC then relied on the client‑generated documentation as evidence of counseling services for billing purposes.
After completing additional billing audits, the owner’s concern regarding the LPC’s treatment escalated. The owner again met with the LPC to discuss the extensive client contact. During this meeting, the owner realized that an inappropriate boundary violation had been developed and advised the LPC to refer the client to another counselor in the practice. In response, the LPC initially stated that she did not receive proper onboarding and was not familiar with the owner’s policies related to client contact. However, at the conclusion of the meeting, the LPC admitted that she allowed boundary violations to develop and that she did not handle them appropriately. Shortly after the consultation with the owner, and out of fear of losing her job, the LPC abruptly terminated the counseling relationship and discontinued all communications with the client. The LPC did not follow the policy of the practice regarding proper termination of the client relationship and offered no explanation to the client as to why she was canceling all future sessions. The client perceived the termination as punitive and related it to the deterioration of his mental health, which contributed to a further decline in his condition. Shortly after the termination, the client experienced a significant escalation in anxiety, depression, and suicidal ideation with a plan, resulting in two subsequent hospital admissions. During these admissions, the client reported to his psychiatrist that the LPC did not address his suicidal ideation and told him that if he completed suicide, it would end her career which would lead her to also complete suicide. After a year of intense therapy including a day program, multiple psychiatric medication adjustments and ongoing counseling, the client’s condition improved. He blamed his mental health deterioration on the LPC’s unprofessional conduct and filed a lawsuit.
Risk Management Comments
The client (plaintiff) asserted the following breaches in the standard of care:
- Improper boundary extensions.
- Failure to conduct and document informed consent relating to the risks, benefits and anticipated consequences of extending the counselor/client relationship beyond conventional parameters.
- Failure to consult with other treating providers on the healthcare team.
- Improper termination of the client-counselor relationship.
- Failure to conduct a suicide risk assessment.
The plaintiff alleged that the LPC fostered an inappropriate emotional dependency by assuming a maternal role within the therapeutic relationship, resulting in severe emotional distress, a worsening of depression and anxiety, and the need for inpatient psychiatric treatment. He further alleged that he lost his employment, resulting in significant financial hardship. The plaintiff’s experts in professional counseling opined that the LPC violated several elements of the ACA Code of Ethics, including but not limited to the following:
- A.1.b.-Records and Documentation
- A.2.a.-Informed Consent
- A.4.a-Avoiding Harm
- A.6.-Managing and Maintaining Boundaries and Professional Relationships
- A.11.-Termination and Referral
- E.1.a.-Assessment
Resolution
Defense experts were unable to support the treatment provided and were critical of the LPC for the blatant boundary violations, lack of documentation, failing to conduct proper assessments and failing to recognize and manage the development of transference and countertransference. These departures from the standard of care presented significant challenges for the defense. The defense concluded that it was likely that the plaintiff’s expert testimony would convince a jury that the insured LPC’s treatment was inappropriate.
Total Incurred:
Given these defense challenges and the reduced likelihood of a favorable jury verdict, the matter was resolved through mediation, resulting in a negotiated settlement with a total cost of more than $350,000.
(Figures represent the payments made on behalf of the LPC)
Risk Management Recommendations for Counselors to be Considered
- Avoid extending the counseling relationship beyond conventional boundaries. Counselors must exercise professional judgment in all client interactions outside of a professional setting, to avoid ambiguity in what is supposed to be a therapeutic, client-centered relationship. The 2014 ACA Code of Ethics (Section A.6.a) states that the counselor should consider the risks and benefits of extending current counseling relationships beyond conventional parameters (e.g., attending a client’s formal ceremony, purchasing a service or product provided by the client, or visiting a client’s ill family member in the hospital).
- Conduct informed consent if boundary extensions are unavoidable and document all discussions in accordance with the ACA Code of Ethics. (A.6.c.), including, but not limited to, the counselor’s rationale for the extension and the potential risks/benefits for the client.
- If inappropriate feelings toward a client arise, immediately obtain professional supervision and consultation. If the feelings cannot be properly and timely managed, terminate the client from treatment and facilitate the transfer of the client to another counselor/therapist.
- Follow the ACA Code of Ethics (A.12) when terminating the client-counselor relationship to avoid claims of abandonment and neglect.
- Obtain client consent to contact and collaborate with other mental health professionals involved in their treatment to coordinate care and ensure that all members of the healthcare team are aware of any significant changes in the client’s condition, as outlined in the ACA Code of Ethics A.3.
- Inform clients about availability and method of contact and limit communications outside of counseling sessions. Document mutual expectations and the client’s agreement in the client healthcare information record.
- Utilize social media cautiously and prudently. Adopt conservative privacy settings for accounts and decline “friend” requests from current or former clients. Conduct all interactions with clients via social media on a professional account. Refer to the ACA Code of Ethics (H.6.) for further guidance.
- Limit self-disclosure to only that which is directly related to the client’s overall treatment goals. The rationale for such disclosures should be documented in the client healthcare information record.
- Document pertinent information for all client interactions contemporaneously and factually, as comprehensive documentation is the best proactive legal defense. Develop a standardized practice for documentation in the healthcare information record to include references to the treatment plan and client progress towards goals, whether the session was conducted in person or via telehealth, as well as a mental status exam and a safety plan if the session’s note reflects a documented risk. For clients who are identified as a suicide risk, ensure that the documented treatment plan aligns with the risk assessment findings.
- Utilize an evidence-based suicide risk assessment tool and consider co-occurring issues that may increase the client’s level of suicide risk, such as depression, substance use disorders and access to firearms.
- Ask questions regarding suicidal ideation openly and ensure that the counseling plan aligns with the risk assessment findings.
- Know and practice within the counselor’s state-specific scope of practice, and in compliance with standard of care and state licensing/certifying board requirements. If more than one standard of care, law or regulation is involved, the counselor should adhere to the most stringent applicable standard.
Disclaimer
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