ETHICS FOR TEXAS LPCs: BOUNDARIES (3 hours $19)

 

INTRODUCTION

Boundaries refer to the judgments that we make about our rights and needs in regards to each other. Boundary problems cause a high percentage of malpractice claims. (Norris, D. M., Gutheil, T. G., & Strasburger, L. H., 2003)

The fundamental idea that runs through all ethics, and that helps clarify the nature of boundaries is that of client welfare. The American Psychiatric Association has annotated the Principles of Medical Ethics of the American Medical Association in order to help psychiatrists apply these ethics to their practices. These annotations also bear on counseling and psychotherapy in general. Regarding client welfare and boundaries:

A psychiatrist shall not gratify his or her own needs by exploiting the patient. The psychiatrist shall be ever vigilant about the impact that his or her conduct has upon the boundaries of the doctor-patient relationship, and thus upon the well-being of the patient. These requirements become particularly important because of the essentially private, highly personal, and sometimes intensely emotional nature of the relationship established with the psychiatrist. (American Psychiatric Association, 2006)

These annotations also highlight the challenge created by not only a doctor-patient, but also a counselor-client relationship.

Further, the necessary intensity of the treatment relationship may tend to activate sexual and other needs and fantasies on the part of both patient and psychiatrist, while weakening the objectivity necessary for control. Additionally the inherent inequality in the doctor-patient relationship may lead to exploitation of the patient. Sexual activity with a current or former patient is unethical. (Ibid)

On the other hand, boundary crossings refer to legitimate ways counselors contact or confront clients, while boundary violations refer to unfair or excessive measures or manipulation. Respect for boundaries equates for respect for the rights of the client. Something as subtle as sitting too close to a client that feels uncomfortable about it may be a boundary violation, because it may impede therapy even if the client is not conscious of it.

Counselors should not be dissuaded from effective interventions because of overly rigid or outdated definitions of boundaries. For example, counselors have observed that an adolescent with emotional problems may say much more on a walk or bicycle ride than sitting face to face in an office. Referring to seeing a client outside of an office setting as a dual relationship would be excessive in this case.

The greater risk a counselor has for trespassing on a client’s boundaries (because, for example, of a tendency toward impulsiveness or because of difficulty parsing subtle body language), the more the counselor should rely on the specific guidelines for counselor behavior from their training. Counselors who are especially adept at sensing their client’s comfort level and adapting to client’s cultural backgrounds will have more to go on, though they should not become overconfident until they have a track record of success in providing therapy. Training and textbooks for counselors often provide very specific and helpful guidelines on issues such as touch, expressions of concern, fee adjustments, pro bono work, the provision of case management and reports and the amount to charge for such services, and so forth.

Common Practices That Impair Boundaries

Bisbing notes that many LPC’s engage in common practices that may actually be boundary violations themselves. Such practices, when taken individually, usually do not amount to professional misconduct; however, they may provide evidence of a pattern or practice that support later allegations of serious misconduct, including sexual misconduct. Such warning signs include:

·          Changing procedures for a patient, including extending appointments, reducing or waiving fees, etc.;

·          Mishandling or not handling "inappropriate client behavior" (e.g., missing appointments, not paying fees, etc.);

·          Inappropriate self-disclosure;

·          Attempts to influence the patient's "philosophical or political positions";

·          Nonprofessional, out-of-office contact with the patient (i.e., for non-therapeutic purposes); and

·          Failure to "terminate the relationship when the [patient] no longer needs therapy. (Bisbing, S. B., Jorgenson, L. M. & Sutherland, P. K., 1995)

Such "lesser" boundary violations may reduce inhibitions and set the stage for greater ethical lapses. Moreover, if a therapist has engaged in such practices, a patient's disciplinary complaints or malpractice claims for sexual misconduct are more likely to succeed: Kuniholm and Church report that "experts observe that claims against therapists for sex abuse are generally more believable in he context of other boundary violations." (Kuniholm, E. F., & Church, K., 2002)

Texas Statutory framework

§ 681.41 includes a number of requirements that deal with setting and maintaining appropriate professional boundaries, ensuring that all actions are in the best interest of the client, and avoiding financial or other situations that create a conflict of interest or other professional pitfalls. While such situations encompass a wide variety of subjects, they share one common theme: LPC’s must ensure that any action they take is in the client's best interest, rather than their own.

Under § 681.41(g), "[a] licensee shall provide counseling treatment intervention only in the context of a professional relationship." This subsection prohibits "informal" counseling of a person with whom the LPC does not have a professional counseling relationship. (A related requirement, under subsection (t), provides that an LPC "shall not evaluate any individual's mental, emotional, or behavioral condition unless the licensee has personally interviewed the individual or the licensee discloses with the evaluation that the licensee has not personally interviewed the individual." However, subsection (t) is aimed less at preventing dual relationships than at preventing speculative, inaccurate, or unqualified judgments about an individual's psychological state.)

Under subsection (k), an LPC is required to "set and maintain professional boundaries. Dual relationships with clients are prohibited." The statute defines a "dual relationship" as "any non-counseling activity initiated by either the licenses or client for the purpose of establishing a non-therapeutic relationship." Such broad language may encompass specific acts that, while not intended (at least in the LPC's mind) "for the purpose of establishing a non-therapeutic relationship," may nonetheless have that effect. Examples include lending money to or accepting a loan from a client, giving a gift to or accepting a gift from a client, or even having a cup of coffee with a client (regardless of who pays). It may also encompass such circumstances as leasing office space from a client; renting property to a client; or engaging in any sale, purchase, or other financial arrangement. Subsection (k)(2) provides:

The licensee shall not give or accept a gift from a client or a relative of a client valued at more than fifty dollars, enter into barter for services, or borrow or lend money or items of value to clients or relatives of clients or accept payment in the form of services rendered by a client.

Dual Relationships

One challenge that LPC’s frequently confront is how to set and maintain appropriate professional boundaries. The therapeutic process, which regularly includes the phenomena of transference and countertransference, necessarily involves intense emotions. Clients tend to be emotionally vulnerable at the best of times; in many instances, the very reasons they seek counseling concern issues such as dependency, isolation, marital and family problems, and other situations that can trigger strong emotional responses during therapy. LPC’s' clients are thus likely to be unusually susceptible to boundary violations. Indeed, they often may not even recognize what boundaries are appropriate and may actively try to exceed them.

Mental health ethicists emphasize that, in all circumstances, it is by definition the responsibility of the therapist, not the client, to set and maintain appropriate professional boundaries. (Pope, K. S. & Vasquez, J. T. 1998) LPC’s must have a firm understanding of which boundaries are appropriate, and must have sufficient confidence and self-control to enforce them. Nonetheless, studies frequently show that therapists regularly list boundary problems as among their greatest ethical challenges.

Business and Financial Relationships

Likewise, LPC’s should not engage in outside business or financial relationships with clients. Such relationships create interdependencies between therapist and client apart from the dynamic of the therapy process, and can have negative effects on that process. In addition, social, business, or financial relationships between an LPC and a client often create conflicts of interest: The LPC may develop a "vested interest" in certain outcomes that may encourage her to behave in ways that are not in the client's best therapeutic interest.

As noted below, Texas LPC’s are barred from accepting business associates as clients. However, inappropriate "business relationships" can arise in a variety of other contexts. Under § 681.41(j), "[a] licensee shall not promote the licensee's personal or business activities to a client unless the licensee informs the client's of the licensee's personal or business interest in the activity." Such interests may include, e.g., suggesting enrollment in a course the LPC teaches; suggesting the purchase of a book, CD, or course materials by the LPC; suggesting that the client participate in or contribute to a function sponsored by a charity or other entity with which the LPC is affiliated; asking a client to provide "testimonials" as to the value of the LPC's services or skills; or referring a client or a client's family member to another professional (in any field) who is related to the LPC. These are only a few examples. When in doubt, an LPC should err on the side of caution. Subsection (i) of § 681.41 provides a useful general guideline: "A licensee shall not engage in activities for the licensee's personal gain at the expense of the client."

FAMILY AND PERSONAL RELATIONSHIPS

One other form of dual relationship involves serving as therapist to family members, friends, students, or colleagues. Under § 681.41(k)(1), LPC’s are prohibited from counseling certain classes of people with whom the LPC has such other relationships. Subsection (k)(1) provides: "The licensee shall not provide counseling services to previous or current:

(A) family members;

(B) personal friends;

(C) educational associates; or

(D) business associates."

The language of this subsection applies both to individuals who currently fall into any of these categories and to individuals who have previously fallen into any of these categories. The language of this subsection does not define the word "previous," so LPC’s should assume that the prohibition on extends to any previous member of these categories, regardless of how long ago the relationship existed. Again, if an LPC is unsure whether a pre-existing relationship is sufficiently close that a counseling relationship would be inappropriate, he should err on the side of caution and refer the individual to another practitioner.

Self-Disclosure

Self-disclosure by an LPC is traditionally considered a valid therapeutic technique. However, LPC’s must also be aware that excessive self-disclosure can lead to other forms of boundary violations; it frequently precedes therapist-client sexual contact. Moreover, malpractice suits against therapists often cite "excessive self-disclosure" as evidence of negligent diagnosis and/or treatment.

It can be difficult to determine when self-disclosure becomes "excessive." When in doubt, experts recommend that, before making the disclosure, LPC’s answer the following question honestly: Will making this disclosure truly benefit the client, or will it simply benefit the therapist? The LPC should not make the disclosure if she cannot truly say that it is for the client's benefit.

Diversity

People of different cultures may have very different ideas and feelings about boundaries. Counselors in training from highly communal cultures have claimed to feel very awkward in refraining from freely offering help that would be considered excessive in western contexts. Physical proximity, the significance of touch, the value of individuality and assertiveness, and many other factors are all culturally sensitive issues. Counselors must collaborate with clients in choosing valid therapeutic outcomes, and this can require cultural sensitivity. It is an excellent subject for continuing education, particularly where the cultures of populations the counselor comes into contact with are concerned. Cultural differences are not necessarily matters of country of origin. Class and lifestyle differences can be sources of misunderstanding and conflict as well.

Minority populations, whether of a minority race, disability, or other factor, tend to experience more stigma, discrimination and violence, and to have more stress in adapting to mainstream culture and activities. This can bring some groups to counseling at higher rates than the general population.

These are additional reasons for counselors to gain training and experience with minority populations. Being a member of a minority population, however, does not automatically endow the counselor with all the skills necessary to work with that population. It does, however, increase the risk of loss of objectivity or boundaries through over-identification or seeing the client as a source of support or sexual gratification. Specialized training is still advisable.

Small Communities

Counselors must deal with a challenge to the management of boundaries in smaller communities, whether they are social groups that the counselor is involved in, or actual geographic communities such as small towns. It may be a hardship for a counselor in a small town to go to another town for all social and business involvement, and likewise, it may be a hardship for the counselor to limit his or her practice to another town when he or she lives in an isolated area.

Counselors must be very careful to establish expectations on the part of their clients regarding confidentiality and how to interact in public settings when the client encounters the counselor. Often, the counselor must take a cue from the client as to how to interact, so long as it is in the best interest of the client. Counselors in small communities must apply boundary guidelines in a manner that adapts to the situation while preserving the primary value of the client’s interest.

Similarly, counselors may be involved in social groupings, but in a limited manner, that allows them to interact with people in a way that may result in their contacts coming to see them or in referring people to the counselor. Such social groupings may include classes and lectures that the counselor conducts, or even certain social groupings that the counselor does not depend upon for social support. For example, a counselor who uses art and who is involved in an organization that promotes art therapy may be visible in that social network as a counselor, and derive clients from that involvement. However, the involvement is primarily as a contribution to the community, rather than an intimate social support network for the counselor.

The counselor will be even more challenged when an acquaintance refers someone to them. If the acquaintance is likely to become a friend, then it is also likely that the person being referred will become a part of the counselor’s intimate social network. In that case, the referral should be directed to another counselor.

It has been said that we have the morals that we can afford. This could be taken as advice to maintain solid financial footing while developing a practice. A good means of doing this is by gaining experience in employment that involves a great deal of clinical decision-making and provision of counseling or psychotherapy. This serves the dual purpose of building experience while interacting more intensively with other clinicians that is typical in private practice, as well as maintaining and building a financial base for practice development if a private practice is desired.

Sex with Clients

SEXUAL AND SOCIAL RELATIONSHIPS

Introduction and Legal Framework

Applicable state law includes: Texas Occupations Code Chapter 503 (hereafter, "Chapter 503"); and the Code of Ethics of the Texas State Board of Examiners of Licensed Professional Counselors, codified at Texas Administrative Code Title 22, Part 30, Chapter 681, Subchapter C, Rule §681.42, Sexual Misconduct (hereafter, "§681.42").

Perhaps the most obvious form of boundary violation involves therapist/patient sexual and romantic relationships. Of all forms of boundary violations, many experts believe that these are the most harmful. A number of studies have demonstrated that clients who are victims of therapist/patient sexual contact experience disproportionately high rates of adverse effects, including suicide. Experts also note that, perhaps to an even greater degree than other types of boundary violations, therapist/patient sexual contact is always, by definition, the therapist's fault. In many jurisdictions, it is a criminal offense subject to a term of imprisonment; in all jurisdictions, it is a disciplinary offense and constitutes malpractice. Sexual boundary violations are discussed in detail in a separate course.

However, numerous other forms of boundary violations exist, and it is frequently easier for an LPC to find himself caught in such a situation where there is no sexual component. Examples include sharing meals with a client; visiting a client's home; inviting the client to visit one's own home; socializing at a party, sporting event, or other activity; or other professional or employment-related affiliations. Experts counsel LPC’s not to see clients outside of the consulting context, to avoid development of social relationships that can adversely affect the therapeutic process. Likewise, LPC’s should not accept as a client any individual with whom the LPC has previously interacted in a social context.

In addition, LPC’s should not engage in social, business, or other relationships with a relative or other associate of a client. Subsection (k)(3) provides that "[t]he licensee shall not enter into a non-professional relationship with a client, client's family member or any person having a personal or professional relationship with a client, if such relationship could be detrimental to the client."

History

Concerns about sexual misconduct by health professionals are hardly new. The earliest published text to address the issue is the Corpus Hippocratum, "a body of about 70 medical texts compiled by the Library of Alexandria during the 4th and 5th centuries B.C." that includes the "Hippocratic Oath." (Schoener, G. R. 1998) The oath states, "I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free." (Ibid) Others have found such admonitions as early as the code of the Nigerian healing arts. (Pope, K. S. 2001)

The founders of psychotherapy, including Freud, Jung, Breuer, and Ferenczi either engaged in or sanctioned what today we would call sexual misconduct. They tended to ascribe responsibility for professional sexual conduct to their female patients. (Schoener, G. R. 1998) (Ibid)

Freud used as a treatment model the 1880 case of "Anna O.," one of Joseph Breuer's hypnosis patients. In treating Anna O., Breuer reportedly did not handle effectively what today would be called the countertransference process. Breuer's wife reacted badly to her husband's infatuation with his patient, and Breuer, in turn, did not cope well with his wife's response: He terminated Anna O.'s treatment, only to rush to her bedside during a "hysterical childbirth." (Ibid) Jones reports that Breuer "fled [Anna O.'s] house in a cold sweat" and the next morning decamped with his wife for a second honeymoon in Venice. (Ibid)

Freud reportedly drew on Breuer's hypnosis practice, including his treatment of Anna O., in developing his psychoanalytic approach. Freud coined the term "transference" to describe the displaced feelings (including romantic and sexual feelings) that his patients developed for him during the analytical process. However, while he asserted that analysts should not become romantically or sexually involved with their patients, he excused such conduct by his male colleagues.

In the most glaring example, Freud inserted himself into a romantic relationship between one of his former students, Horace Frink, and one of Frink's patients. Freud not only urged Frink to leave his wife and marry the patient, but he evidently did so in the service of his own financial interests. (Schoener, G. R., 1997) The patient's family was wealthy, and Freud apparently believed that if Frink married the patient, her family would make a significant financial contribution to Freud's own work. (Ibid)

Another incident involved Freud's former student, Ferenczi. One of Freud's former patients, Elma Pálos, later commenced therapy with Ferenczi; at the same time, her mother, Gisella Pálos, was romantically involved with Ferenczi and eventually would become his wife. (Ibid, citing Gabbard, 1995 and Gabbard & Lester, 1995) However, while treating Elma, Ferenczi became sexually involved with her as well as with her mother. (Ibid) While Freud had warned Ferenczi that he should avoid sexual activity with patients, with regard to his involvement with Elma and Giselle Pálos, he also reportedly tried "to influence [Ferenczi's] choice of a mate." (Ibid, citing Gabbard, 1995)

Even in his criticisms of Ferenczi's sexual entanglements with patients, Freud appears to have dismissed such sexual contact as "old misdemeanors." (Ibid, citing Mason, J. M., 1984) For his part, Ferenczi contended that those "old misdemeanors," which he characterized as "[t]he sins of youth," "can make a man wiser... Now, I believe, I am capable of creating a mild, passion-free atmosphere, suitable for bringing forth even that which had been previously hidden." (Ibid, citing Mason, J. M., 1984, p. 160)

Several years earlier, Carl Jung had likewise become sexually involved with a patient. Sabina Spielrein, a 19-year-old medical student in "desperate mental distress," first came to Jung for analysis and therapy in 1905. (Ibid, citing Gay, 1998) Jung treated her over the next four years, and, according to Gay, "[took] advantage of her dependency [and] made her his mistress." (Ibid) At one point, Jung wrote to Freud that "the situation had become so tense that the continued preservation of the relationship could be rounded out only by sexual acts." (Ibid, citing 236). In other correspondence, he justified this sexual relationship by alleging that Spielrein was "systematically planning [his] seduction." (Ibid, citing McGuire, W., 1988) Freud responded in kind: Writing of "[t]he way these women manage to charm us with every conceivable psychic perfection until they have attained their purpose," he excused Jung's conduct by faulting Spielrein. (Ibid, citing McGuire, W., 1988, p. 231)

However, Jung's exploitation of his young patient did not stop with the affair: Rumors of the affair began to circulate, and Jung assumed that Spielrein was responsible. He later admitted: "Caught in my delusion that I was the victim of the sexual wiles of my patient, I wrote to her mother that I was not the gratifier of her daughter's sexual desires but merely her doctor, and that she should free me from her." (Ibid, citing McGuire, W., 1988) In that same letter, he justified shifting from a doctor/patient to a social relationship "the more easily" because he had not been charging Spielrein professional fees. (Schoener, G. R., 1997, citing Donn, L., 1990) He then suggested that if his patient wanted him "to adhere to strictly to [his] role as doctor," he was entitled to receive "a fee as suitable recompense for [his] trouble." (Ibid) As the situation worsened, Jung even asked Freud to intervene by writing to Spielrein's mother. Freud did so, and subsequently advised Jung not to blame himself for the mess, asserting, "[I]t was not your doing but hers." (Ibid)

Women were not exclusively victims, however: Some of the early female professionals in the mental health field likewise engaged in sexual activity with patients. Karen Horney reportedly was involved in what she characterized as "restricted relationship[s]" with patients. (Ibid, citing Wolff, W. 1956, p. 87) Her biographer, Susan Quinn, describes a "romantic relationship" between Horney and a young male patient, which Quinn appears to rationalize as an example of "old impulsive ways [that] survived into middle age." (Ibid, citing Quinn, S., 1988, p. 378)

Horney allegedly became sexually involved with patients and students with some regularity. Schoener describes Horney as having regularly "played favorites" with her lovers, temporarily elevating one to favored status, then suddenly replacing him with another. (Ibid, citing Paris, B. 1994, p. 142)

Freida Fromm-Reichmann acknowledged engaging in a romantic relationship with a patient: her future husband, Erich Fromm. According to Schoener, Fromm-Reichmann congratulated herself for having the "common sense" to end the therapist/patient relationship before they married. (Ibid, citing Fromm-Reichmann, F., 1989)

Incidence and Dynamics

The relationship between counselor and client is fraught with motives and needs that can result in sex between counselor and client.

It took a long time for the scope and even the existence of the problem to be acknowledged. In the late 1960’s, the first research into the subject was undertaken, but the resulting report was suppressed by the Los Angeles APA, despite its own ethical prohibition against suppressing research findings. (Forer, B., 1984)

The earliest research into incidence rates for sexualized contact with health care providers came from a survey of psychiatrists, obstetrician/ gynecologists, surgeons, internists and general practitioners, and reported that as many as thirteen percent indicated that they had engaged in erotic behavior with clients, with 7.2% acknowledging sex. Of the providers surveyed, psychiatrists and surgeons reported the lowest rate of erotic contact, at 19%. (Kardener, S. H., Fuller, M. & Mensh, I. N., 1973)

In the early 1970’s, data from malpractice carriers and a poll of psychiatrists revealed that the problem was far more common than believed. In 1971, 11% of male psychiatrists admitted to having sex with at least one client. 80% of those psychiatrists had sex with multiple patients. (Gabbard, G. O., 1989)

It appears that the incidence rates of erotic contact between psychotherapists and their clients has decreased a great deal as a result of improved awareness of the issue, its consequences, and because of the large number of successful criminal prosecutions and civil suites, beginning with the 1968 case of Zipkin v. Freeman. The legal bases for civic suits include negligence, malpractice and breach of fiduciary duty. Legislation was formulated beginning in 1983 that now includes criminal and civil statutes. (Jorgenson, L & Sutherland, P. K., 1993)

The change in perception that began in the 1970’s resulted in claims of sexual abuse by counselors and physicians to begin to be taken seriously. In the decades preceding this change, it was believed that such abuse was rare, that allegations were fantasies, and that allegations of incest were invalid for the same reasons. More time passed before there were laws and ethical codes addressing the problem.

It was not until 1991 that the American Medical Associations Council on Ethics and Judicial Affairs codified the injunction against sex between physicians and their patients. (Gabbard, G. O., 1989, citing Campbell, M., 1989) Rules comparable to the AMA’s were later adopted by the American College of Obstetricians and Gynecologists (1997) and the American Academy of Pediatrics (1999).

Research has associated the following problems resulting or being increased in clients by sex with their counselor: sexual dysfunction, anxiety disorders, psychiatric hospitalizations, suicide risk, depression, dissociative behavior, guilt, shame, anger, confusion, hatred, inability to trust and feelings of worthlessness. (Pope, K. S., 1989) It has been estimated that only four to eight percent of victims ever report these experiences. (Gartrell, N., et al., 1987)

It appears that clients suffer similar kinds of harm at similar rates regardless of the type of health care provider with whom they had sexualized contact. (Feldman-Summers, S. & Jones, G., 1984, p. 1058)

Controversies remain as to the degree to which clients are harmed and the kind of compensation that should be required in civil suits. Research showing harm in the form of mental disorders resulting from such contact has been criticized on methodological grounds as well as on the bases that a single incident or series of incidents that do not qualify as precursors for post traumatic stress disorder within the DSM-IV criteria cannot be alleged to be the sole source of the disorder in a civil suit.

Although flaws have been pointed out, surveys of clients who have experienced sexual relationships with their counselors offer alarming numbers and types of harm. Even if one takes the position that this kind of harm is not typically the result of sex with a counselor, there remain the matters of abuse of power, the damage to the investment the client has made in counseling, the time and creative energies that the counselor has taken from the client, and the stresses and distractions posed by subjecting the client to circumstances that are highly socially stigmatized and humiliating. In addition, from the perspective of society, there is the damage to the reputation of the profession of counseling, the effect this can have in reducing utilization of appropriate mental health services, and the resulting harm to citizens and society at large. The power imbalance between a psychotherapist and client brings into question the idea that there can be meaningful consent on the part of the client. (Appel, J. M. 2004)

Add to this the likelihood that a sexual relationship will cloud the judgment of the counselor, potentially resulting in harm or at least inadequate mental health care because of poor professional judgment. There is also the data from research indicating that physicians most likely to engage in sex with clients that result in professional disciplinary processes are more likely to have impairments reflected in inappropriate conduct in medical school. This conduct included irresponsibility, cognitive patterns of being special in ways that made them feel that they were above the rules, and similar problems. Assuming that this applies to other professional groups, including counselors, this is an added incentive for not only a disciplinary process, but also for requiring assessment, supervision and treatment of counselors who have engaged in boundary violations as needed, in cases where such counselors have retained or are working to regain the license to practice.

It is very difficult to determine an accurate rate of occurrences of sex between counselors and clients. Early studies yielded numbers around 10% of psychiatrists and psychologists. Later studies showed the numbers dramatically declining. However, it is unknown whether the increased stigma and attention to the issue resulted in underreporting or an actual reduction in the rate. (Williams, M. H., 1992) Sexual misconduct has resulted in a high percentage of malpractice suits against psychotherapists. (Underwager, R. & Wakefield, H., 1993)

Research on outcomes of treatment for counselors who sexually offend has not been encouraging, and these counselors have the ability to keep their sexual activities with clients secret for extended periods.

Some counselors are not merely vulnerable to falling in love or lust with a client, but are actually predatory in their view of clients as sources of sex. A psychotherapist in Colorado decided to become a coach because he believed that he would no longer be subject to laws pertaining to boundaries between client and counselor. This was a poor choice, however, because coaching can easily fall under the law as performing psychotherapy, because of how psychotherapy is defined in most states. (Yourell, R. 2007, citing Martinez, A. 1999) This is especially true when a psychotherapist performs coaching, because the client has the reasonable expectation that the counselor will use psychotherapeutic skills and knowledge. (Ibid)

Harm to Clients

The harm caused by therapist sexual misconduct falls into different categories. The most obvious is psychological and emotional harm, which may take a variety of forms.

Studies conducted over the last 35 years have amply demonstrated the harmful effects of sexual contact between therapists and patients. In 1980, Durre published a study, incorporating research over eleven years that reviewed the effects of, "amatory and sexual interaction between client and therapist." (Pope, K. S., 1986) She found that such interaction "dooms the potential for successful therapy and is detrimental if not devastating to the client." (Ibid) The array of negative effects that she reported included "many instances of suicide attempts, severe depressions (some lasting months), mental hospitalizations, shock treatment, and separations or divorces from husbands... Women reported being fired from or having to leave their jobs because of pressure and ineffectual working habits caused by their depression, crying spells, anger, and anxiety." (Ibid)

Another study three years later analyzed responses from therapists treating patients who had engaged in sexual contact with previous therapists. The authors concluded that, in those cases that had been reported, 90% of the clients suffered harmful effects. (Pope, K. S., 1986b)

Such effects included:

· "inability to trust";

· "hesitation about seeking further help from health (or other) professionals";

· "severe depressions";

· "hospitalizations"; and

· "suicide." (Ibid)

A well-known 1991 study by Pope and Vetter (Pope, K. S., Vetter, V. A. 1992) likewise concluded that about 90% of patients who became sexually involved with a therapist were harmed by the contact. Perhaps more surprisingly, Pope and Vetter also reported that 80% of such patients were harmed even when the sexual relationship began only after the therapeutic relationship had been terminated. "About 11% required hospitalization; 14% attempted suicide; and 1% committed suicide." And of those patients reporting harmful effects, "only 17% recovered fully," by their own assessments.

The same study also identified what its authors described as, "10 of the most common reactions that are frequently associated with therapist-patient sex." It is significant that none of these reactions is healthy or useful; the best that may be said of them is that their effects are negative. Pope and Vetter define them as follows:

· "Ambivalence": Patients suffering from ambivalence often become "psychologically paralyzed, unable to make much progress in either direction." They note that "[a]mbivalence of this kind is often found among those who have experienced other forms of abuse," raising the possibility that therapists who engage in sexual misconduct frequently target patients whose histories of prior abuse make them particularly vulnerable.

· "Cognitive Dysfunction": These problems may include "interference with attention, memory, and concentration. The flow of experience will often been interrupted by unbidden thoughts, intrusive images, flashbacks, memory fragments, or nightmares." Pope and Vetter compare the results to post-traumatic stress disorder, noting that such cognitive dysfunction may impair the patient's ability to engage in crucial day-to-day tasks: "These cognitive impairments may interfere significantly with the person's ability to work, to participate in social activities, and sometimes even to carry out the most routine aspects of self-care."

· "Emotional Lability": Patients suffering from these effects may find that "intense emotions may erupt suddenly and without seeming cause, as if they were completely unrelated to the current situation. The emotional disconnect can be profound: a person can describe a wrenchingly sad event and burst out laughing, or talk about something funny or wonderful and begin sobbing." Pope and Vetter add that because "emotional lability can involve interrupting the flow of experience with extreme, unpredictable, rapidly shifting feelings," it can leave a patient feeling "helpless," "out of control," or "at the mercy of a powerful, intrusive enemy, an occupying force."

· "Emptiness and Isolation": Patients may describe "emptiness" as though "their sense of self had been hollowed out, permanently taken away from them." According to Pope and Vetter, such feelings are often accompanied by a sense of "isolation," leaving patients feeling as though they are "no longer members of society, cut off forever from feeling a social bond with other people." Elma Palos, Ferenczi's patient and sexual partner, and the daughter of the woman who would eventually become Ferenczi's wife, wrote: "This being alone that now awaits me will be stronger than I; I feel almost as if everything will freeze inside me... If I am alone, I will cease to exist." (Ibid)

· "Impaired Ability to Trust": As Pope and Vetter note, trust is the linchpin of the therapeutic relationship, a necessary condition for successful treatment:

People may walk into the offices of complete strangers and, if the stranger is a therapist, begin talking about thoughts, feelings, and impulses that they would reveal literally to no one else. Every state, appreciating the exceptionally sensitive nature of the "secrets" that patients may entrust to their therapists, has established in their laws a formal therapist-patient privilege. The ethics codes of all major mental health professions recognize the therapist's responsibility to maintain confidentiality when patients trust the therapist to the extent that they disclose personal information in therapy. Beyond investing therapists with trust regarding their own privacy, confidentiality, and "secrets," patients trust therapists to act in a way consistent with patient well-fare and to avoid intentionally engaging in any behavior that not only is unethical and prohibited by law but also places the patient at so needless a risk for harm.

· "Guilt": Patients who become sexually involved with their therapists "may become flooded with persistent, irrational guilt. The guilt is irrational because it is in all instances the therapist's responsibility to avoid sexually abusing a patient." According to Pope and Vetter, "gender effects in this area are significant. It is possible that gender may be associated with the ways in which this irrational guilt develops and is sustained."

· "Increased Suicidal Risk": Pope and Vetter cite studies demonstrating that patients who have engaged in sexual contact with therapists have significantly increased risk of both suicide attempts and completed suicides when compared with the general population and other groups of patients. As early as 1983, research suggested that about 14% of psychotherapy clients who were sexually involved with their therapist made at least one attempt at suicide and that about one in every hundred such clients committed suicide. Of those patients reporting harmful effects, "only 17% recovered fully," by their own assessments (Pope, 1986, citing Bouhoutsos, J. Holroyd, J. Lerman, H. Forer, B. & Greenberg, M., 1983, pp. 185-96)

· "Role Reversal and Boundary Confusion": Therapist/patient sexual relationships turn the therapeutic process upside down:

[T]he sessions and the relationship are no longer about the therapist being of use to the patient in service of the patient's welfare but rather the patient being of use to the therapist in service of the therapist's sexual gratification. The fundamental clinical, ethical, and legal boundary that would prevent a therapist from turning patients into sources for the therapist of sexual pleasure, experimentation, relief, variety, or control is violated.

Significantly, Pope and Vetter note that the harm to a patient from therapist sexual misconduct can be long-term:

The negative effects of the therapist's violation of boundaries and reversal of roles can generalize beyond the therapy and persist long after the termination of the therapy and the sexual relationship. The roles and boundaries that people use to define, mediate, and protect the self may become not only useless for the patient but also self-defeating and self-destructive.

· "Sexual Confusion": According to Pope and Vetter, it is unsurprising that patients who have been sexually involved with their therapists "wind up deeply confused about their own sexuality." This can include "significant confusion over [patients'] 'true' sexual orientation." But harmful effects can extend beyond issues of sexual identity: According to one researcher, "female patients who had been sexually involved with a prior therapist 'expressed a cautiousness or even disgust with their sexual impulses and behavior as a result of sexual involvement with their previous therapists.'"

Pope and Vetter contend that therapist/patient sexual involvement "leaves some patients believing that their only worth as human beings is to provide sexual gratification to others. Some engage in sex with others on an almost obsessional basis as re-enactment of the sexual relationship with the therapist." Finally, they describe an array of other sexual dysfunctions that may result:

Especially when the patient is experiencing feelings of emptiness and isolation, the specific sexual activities previously experienced with the exploitive therapist--often re-enacted in the midst of flashbacks--may represent an attempt to fill up the self and break through the isolation. For still other patients, sex becomes associated with feelings of irrational guilt. They may engage in demeaning, degrading, joyless, painful, harmful, or dangerous sexual activities that seem to express the conviction: "I am guilty, worthless, and deserve this." Some may become so confused about sexuality that they begin labeling a variety of feelings and impulses as "sexual." They may, for example, say that they are sexually aroused whenever they are feeling intensely angry, depressed, anxious, or afraid.

· "Suppressed Anger": It is similarly unsurprising that patients who are victims of therapist sexual misconduct often become angry. However, Pope and Vetter report that such patients often suppress that anger, which may lead to greater harm yet:

[I]t may be difficult for [such patients] to experience the anger directly. Some may feel only numbness in situations that, according to them, would have previously evoked anger. Some may turn the anger inward, becoming enraged at themselves. The anger directed inward may lead to self-loathing, self-punishment, and self-destructive behaviors including suicide.

An essential aspect of these results is that they were provided by psychotherapists who have treated patients who had been sexually involved with a previous therapist. And despite the frequency both of therapist sexual misconduct and of denials that such conduct is harmful, these results suggest that most psychotherapists do indeed recognize that such sexual contact does indeed cause harm.

Offender Typing

Assalian and Ravart agree with other experts that "[t]here is nothing new about sexual contact between health and mental health professionals and their patients." (Pierre, A. & Ravart, M., 2003) They cite the estimate of Abel, et al., that "half of all psychiatrists will evaluate and/or treat at least one person who was sexually exploited by a previous therapist or other health or helping professional." (Ibid) Assalian and Ravart's work describes three categories of professionals who commit sexual misconduct: the "denier," the "rationalizer," and the "repentant." (Ibid, p. 91) Such professionals' susceptibility to treatment, they argue, varies by category: They suggest use of instruments such as the Minnesota Multiphasic Personality Inventory (MMPI) to diagnose "deniers" and prevent them from "gaming the system," in effect. (Ibid) While they contend that "rationalizers strongly tend to minimize their actions and avoid full responsibility for their behaviour," they may also "show remorse and victim empathy," and "are treatable." (Ibid) However, they find that those in "the repentant group are the best treatment candidates. They take full responsibility for their behaviour and present themselves as sincerely regretful and remorseful, and are willing to involve themselves in therapy to understand their behaviour and change." (Ibid)

Assalian and Ravart further classify offending professionals into "'affective' and 'predatory' types." (Ibid) The conduct of "affective" types, they argue, tends to stem from "unresolved emotional problems," such as mishandling of countertransference, depression, substance abuse, and feelings like resentment or abandonment. (Ibid) "Predatory" types, on the other hand, tend to present with "major personality disorder[s]" that may include psychopathic, narcissistic, or borderline features, among others. (Ibid) They contend that sexual misconduct by predatory offenders "is part of a lifestyle of using and exploiting others to meet one's needs," making them "more dangerous and at risk for reoffending." (Ibid)

Within the affective and predatory categories, Assalian and Ravart have identified seven subtypes: incidental, interpersonal, narcissistic, compensatory, exploitive, angry, and sadistic. They characterize each as follows:

§ Incidental offenders "have impulsively behaved in a sexually inappropriate manner and their [sic] is only one known occurrence of the behaviour." (Ibid)

§ Interpersonal offenders "are motivated to establish a close, intimate and long-lasting relationship. The investment in the relationship seems genuine, without clear signs of exploitation or abuse." (Ibid, p. 91-92)

§ Narcissistic offenders "may or may not be seeking a close, emotional relationship," but "their behaviour more strongly suggests strong needs for attachment, admiration, approval, validation, love and attention." (Ibid)

§ Compensatory offenders "are more opportunistic and impulsive," and "basically offend to fulfill unmet needs for physical closeness, affection and sexual relations." (Ibid)

§ Exploitive offenders "purposely use their position of authority and power to achieve their behaviour and fulfill their needs," including "control, power, [and] domination." (Ibid)

§ Angry offenders "persistently sexually harass and offend against women," "evidenc[ing] strong feelings of hostility, rage and resentment toward women." (Ibid)

§ Sadistic offenders "enjoy using their power and authority to control and dominate the victim," and get "marked pleasure out of being cruel and provoking suffer[ing]." (Ibid)

Patient and Therapist Risk Factors

While boundary-crossing behavior may be a sign of movement toward client abuse, boundary guidelines have been established that are not validated and do not predict malpractice that could result from a “slippery slope.” (Kroll, J., 2001) However, the following risk factors have more to do with counselor vulnerability as risk factors, and thus can warn the counselor.

Norris, Gutheil, and Strasburger argue that groups of risk factors exist for both therapists and patients that make it more likely that therapist sexual misconduct will occur. They divide therapist risk factors into nine groups:

§ "Life crises": Although relatively new practitioners can also be vulnerable to boundary violations, more frequently, "midlife and late-life crises in therapists' development appear repeatedly as precipitants of boundary problems with patients." Norris, et al., cite "the effects of aging, career disappointment or unfulfilled hopes, marital conflict or disaffection, and similar common stress points" as typical triggers. (Norris, D. M., Gutheil, T. G., & Strasburger, L. H., 2003)

§ "Transitions": "Retirement, job loss, job change – even promotion – or job transfer" may serve as a trigger "that makes a therapist susceptible to crossing the line with patients." Fiscal difficulties may likewise trigger non-sexual boundary violations involving finances. (Ibid)

§ "Illness of the therapist": Although they describe this context as "relatively underexplored," Norris, et al., report that "[t]herapists' illness appears to increase their vulnerability to turning inappropriately to a patient for solace and support." Related factors in this category include "death anxiety" and "fears of mortality." (Ibid)

§ "Loneliness and the impulse to confide": The most common manifestation in this category is inappropriate self-disclosure. Norris, et al., note that such impulses may arise when a "therapist encounter[s] some life difficulty and seek[s] a 'sympathetic ear,'" or when "the otherwise laudable desire to find common ground with a patient... miscarry[ies]." They report: "In part, therapists' uncertainty stems from the empirical observation that self-disclosure is often the final boundary excursion before sexual relations, even though self-disclosure does not in itself lead inevitably to that outcome." They also warn that psychotherapist’s may confuse countertransference with "honesty," leading to inappropriate self-disclosure. (Ibid)

§ "Idealization and the 'special patient'": Some "early harbingers" of boundary violations include mishandling of "countertransference attitudes," including the tendency to regard a patient as somehow "special." Norris, et al., cite as examples of characteristics that lead therapists to idealize their patients "beauty, youth, intellect, fame or status in the community, or therapeutic challenge." Such idealization may be "highly threatening" to the therapist, "creating anxiety that may distort clinical judgment." Psychotherapist’s may even handle their treatment of such patients differently:

…scheduling excessive or excessively long sessions, especially at the end of the day; giving permission to run up a high unpaid balance; making special allowances for the patient; and having nonemergency meetings outside the office. Therapists seeking consultation on such cases often begin the request with[:] "I don't usually do this with my patients, but in this case...." (Ibid)

§ "Pride, shame, and envy": "[A] pitfall that is especially relevant to very senior therapists, who are often sought out for consultation, is their inclination to brush aside the need to seek consultation themselves." Norris, et al., report that one therapist "resisted undergoing such a review on the grounds that he knew the consultant would tell him the relationship with the patient was wrong and should be terminated. They also argue that, "[i]n its extreme form, this narcissistic difficulty supports the belief that one is above the law and that the usual rules do not apply." (Ibid)

§ "Problems with limit[-]setting": Regardless of whether a patient attempts to transgress appropriate boundaries, it is the job of the therapist to ensure that professional limits are maintained. Norris, et al., report that "[a] common barrier to appropriate limit[-]setting is the therapist's countertransference conflicts about aggression or sadism when the prospect of the patient's expected distress, discomfort, or frustration at being told 'no' is intolerable to the therapist." Such problems often arise in the context of treating a patient who displays "unrestrained rage." (Ibid)

§ "'Small town' issues": In this context, the label "small town" may refer to any isolated or insular environment: an actual community with a small population; certain types of institutions (e.g., schools); or specific "subcultures" (Norris, et al., cite as an example urban gay and lesbian "subcultures"). Such small groups make it likely that therapist and patient will come into contact with each other in social (or at least non-professional) settings. (Ibid)

§ "Denial": Norris, et al., report that "denial about early problematic situations, which can lead to their evolving into full-fledged boundary disasters, is another common factor in clinical misadventures." This is especially true, they argue, "with more seasoned and experienced therapists." psychothreapists who deny that the problem exists may engage in "[e]vasion, externalization, and rationalization to help maintain the pretense that boundary violations are not serious, not harmful, or even not occurring at all." (Ibid)

Patient Characteristics

Norris, et al., classify patient victims into six more formal categories. These include:

§ "Enmeshment": Some patients "may seek dependency rather than autonomy" and look for a "protective" therapist. During the treatment, the result can become an "intensely enmeshed, symbiotic relatedness," which makes it difficult or impossible for the patient to terminate either the sexual or the therapeutic relationship, or to report the boundary violation(s) to appropriate authorities. (Ibid)

§ "Changing roles: from victim to actor": Due to transference, a patient sometimes "imbues the therapist with healing powers and intent." Such a patient is unlikely to be assertive enough to challenge the psychotherapists prescribed course of treatment, even when that "treatment" includes sexual contact. (Ibid)

§ "Retraumatization": This poses a particular problem for patients who seek therapy for earlier traumatic experiences (e.g., child abuse, etc.). One expert describes such patients' situation as "sitting duck syndrome." According to Norris, et al., "boundary violations and even outright abuse by the therapist may recapitulate [the patient's traumatic] early experience, including felt helplessness to enact any escape or remedy." (Ibid)

§ "Shame and self-blame": Despite the fact that therapist/patient sexual contact is by definition the fault of the therapist, patients who are victims of such misconduct often blame themselves. However, they blame themselves not only for "failure to know better, failure to recognize abuse," "having made foolish choices," etc., but for "causing the therapist to lose control or cross the line," for "being 'too seductive,'" or for "bear[ing] full responsibility for the [therapist's] conduct." (Ibid)

§ "'True love'": Some patients have few or no personal relationships in their lives, leading them to focus too intensely on the therapeutic relationship. "The relationship with the therapist may appear the only or the last chance for 'true love' in the patient's sphere." (Ibid)

§ "Dependency": According to Norris, et al., dependency provides at least part of the context for most boundary violations. In some cases, what appears to be a boundary violation by the patient may in fact mask other problems: They recount a patient who, after entering a nursing home, began to call [her therapist] 'honey' and 'dear'" rather than by his title and touched him repeatedly. When the therapist told her of his concerns about her behavior, she began "sobbing that she had lost her memory and could not recall his name." (Ibid)

Law

Rule §681.42 of the Texas Administrative Code, is a part of the ethics rules: It forbids licensees from engaging in "sexual contact" with or "sexual exploitation" of any client, any former client, any intern whom the LPC supervises, or any student at an educational institution where the LPC provides professional or educational services. It also prohibits "therapeutic deception" of a client or former client. These terms are defined below in the ensuing subsections. It also imposes reporting and other duties upon LPC’s; these are also discussed below.

For purposes of professional liability and the potential for disciplinary sanctions, the circumstances surrounding such conduct are irrelevant. This is true regardless of whether the conduct occurred outside the context of professional counseling sessions or off the LPC's professional premises, or even if the conduct was "consensual." Such conduct violates state law and the LPC Code of Ethics, and thus may subject the LPC to potential professional, civil, and even criminal penalties.

While LPC’s' compliance with state regulatory and ethical requirements may be motivated in part by the possibility of lawsuits and criminal penalties, ethical issues permeate the practice and process of counseling. Texas LPC’s must have a clear understanding both of applicable rules and guidelines and of the extent to which personal experiences and biases may influence how they their understand and apply these requirements.

Chapter 503

Under the Texas Occupations Code, § 503.001 defines what the "practice of professional counseling" is, and what it is not, under Texas law. It lists both types (e.g., individual, group, family, etc.) and areas (e.g., prevention, evaluation, treatment, etc.) of therapeutic practice, and further defines relevant terms. Licensees should refer to this section to determine whether particular professional actions or activities constitute "counseling" for purposes of state law and professional standards.

Subchapter G of Chapter 503 establishes the qualifications for obtaining a license to practice as an LPC in Texas, including minimum age, education, practical experience, and administrative requirements. It also establishes procedures for review of license applications, examinations and reexaminations, and dissemination of examination results. Finally, it provides for issuance of temporary, provisional, and regular licenses, and changes in licensure status (such as retirement or moving to inactive status). Subchapter H provides for license expiration and renewal and establishes mandatory continuing education requirements.

Subchapter I covers disciplinary matters, including possible disciplinary actions, available sanctions, and procedures. Subchapter J covers criminal penalties and enforcement, as well as reporting requirements for alleged criminal offenses. Administrative penalties and procedures are governed by Subchapter K. Procedures for consumer and patient complaints against LPC’s are established by Subchapter F, including filing, investigation, and disposition of complaints.

Other subchapters cover Board administrative issues, including eligibility and qualifications for membership, personnel matters, meetings, and other internal processes.

Rule §681.42

Rule §681.42 of the Texas Administrative Code, which also appears in the LPC Code of Ethics, addresses issues of sexual misconduct. Irons defines professional sexual misconduct as “the overt or covert expression of erotic or romantic thoughts, feelings, or gestures by the professional toward the patient, that are sexual or may be reasonably construed by the patient as sexual.” This definition is consistent with that found in Rule §681.42, which addresses three specific types of sexual misconduct: "sexual contact"; "sexual exploitation"; and "therapeutic deception."

"Sexual Contact"

Under §681.42, "sexual contact" falls into four categories: The first three are "deviate sexual intercourse," "sexual contact," and "sexual intercourse as defined by the Texas Penal Code, §21.01." The fourth category comprises "requests by a licensee for conduct" that falls into one of the other three categories.

Texas Penal Code §21.01(1) defines "deviate sexual intercourse" as “any contact between any part of the genitals of one person and the mouth or anus of another person,” or “the penetration of the genitals or the anus of another person with an object.”

The Penal Code defines "sexual contact" as “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.” The Code also defines sexual contact with a child as:

The following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, with the anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

Finally, "sexual intercourse" is defined under the Texas Penal Code as “any penetration of the female sex organ by the male sex organ.”]

Sexual Exploitation

§681.42 defines "sexual exploitation" as “a pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person." Sexual exploitation thus includes much more than actual sexual contact. LPC’s need to be aware that certain behaviors, comments, or gestures, however innocently intended, may be misinterpreted; particularly by patients who are unusually vulnerable with regard to such issues.

LPC’s should also note the law's specific definitions of what may constitute sexual exploitation where the purpose is "sexual arousal, gratification or sexual abuse of any person." Examples include:

(1) sexual harassment, sexual solicitation, physical advances, or verbal or nonverbal conduct that is sexual in nature, and

(A) is offensive or creates a hostile environment, and the licensee knows or is told this; or

(B) is sufficiently severe or intense to abusive to a reasonable person in the context;

(2) any behavior, gestures, or expressions which may reasonably be interpreted as inappropriately seductive or sexual;

(3) inappropriate sexual comments about or to a person, including making sexual comments about a person's body;

(4) making sexually demeaning comments about an individual's sexual orientation;

(5) making comments about potential sexual performance except when the comment is pertinent to the issue of sexual function or dysfunction in counseling;

(6) requesting details of sexual history or sexual likes and dislikes when not necessary for counseling of the individual;

(7) initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee;

(8) kissing or fondling;

(9) making a request to date;

(10) any other deliberate or repeated comments, gestures, or physical acts not constituting sexual intimacies but of a sexual nature;

(11) any bodily exposure of genitals, anus or breasts;

(12) encouraging another to masturbate in the presence of the licensee; or

(13) masturbation by the licensee when another is present.

The statute makes clear that "[t]he term ['sexual exploitation'] does not include obtaining information about a client’s sexual history within standard accepted practice while treating a sexual or marital dysfunction.” However, LPC’s must ensure that attempts to obtain such information are limited strictly to therapeutic purposes. Making such inquiries when they are not necessary to the therapeutic process may constitute sexual exploitation. Examples of such inquiries may include asking the patient for details of her sexual history, asking about sexual likes and dislikes, or making comments about potential sexual performance, when such questions or comments are not pertinent to the patient's course of treatment.

LPC’s should also be aware that they may need to take special precautions in the area of self-disclosure. Self-disclosure is a valid therapeutic technique, used in various forms by many, if not most, therapists. However, clients who file complaints or lawsuits against LPC’s frequently cite inappropriate or excessive self-disclosure as one of the bases of the complaint. According to Caudill:

Therapists must be conscious that excessive self-disclosure can fuel a patient's perception that he or she is special to the therapist, or that there is a potential for a relationship outside the therapeutic one. The problem becomes more acute when the patient is inquiring as to the therapist's personal life and/or the therapists relationships with his or her family and/or lovers. At that point, the therapist should be inquiring as to what purpose this information would serve for the patient to know. (Caudill, Jr., O. B., 2000)

The LPC should only engage in self-disclosure when it is clearly for the client’s benefit. The client’s condition weighs upon this decision. (Ibid)

"Therapeutic Deception"

A third category of sexual misconduct is "therapeutic deception." Subchapter 681.42(d) defines therapeutic deception as a representation by a licensee that sexual contact with, or sexual exploitation by, the licensee is consistent with, or a part of, a client’s or former client’s counseling." In other words, if an LPC convinces a patient to engage in sexual contact by telling the patient that such contact is part of her therapy, the LPC commits sexual exploitation.

"Reporting"

Under §681.42, if an LPC has reasonable cause to suspect that a client has been victimized by another mental health services provider, or if a client alleges such victimization, the LPC is required to report the suspicion or allegation. Such reports must be made within 30 days of the date the LPC becomes aware of the allegations or conduct. Before fling the report, the LPC must inform the alleged victim of this to report, and must determine whether the victim wishes to remain anonymous. If so, the LPC must withhold the alleged victim's identity from the report; if not, she must identify the victim. The LPC must also identify his or herself in the report (as the person filing it), and must clearly articulate his or her suspicion that sexual exploitation, sexual contact, or therapeutic deception has occurred; and must identify the LPC who has allegedly engaged in the misconduct.

Texas LPC’s must file such reports of alleged sexual misconduct with the prosecuting attorney in the county where the violation allegedly occurred. If the alleged misconduct involves an LPC, the report must also be filed with the Texas State Board of Examiners of Professional Counselors and any other state agency that licenses the provider.

VI. Professional and Legal Consequences

LPC’s who engage in sexual conduct with clients expose themselves to specific potential legal consequences. These fall into three major categories: licensure actions, civil litigation, and criminal charges.

Professional Discipline and Enforcement

With regard to licensure in Texas, Title 22, PART 30, Chapter 681, Subchapter M of the Texas Administrative Code defines levels and severity of sanctions and provides guidelines for enforcement. There are five levels of sanctions:

· Level one: revocation of license;

· Level two: "extended suspension of license";

· Level three: "moderate suspension of license";

· Level four: "probated suspension of license"; and

· Level five: a reprimand.

All formal sanctions, including revocation, suspension, and reprimand, remain on an LPC's professional record for seven years. If an LPC's license is revoked, the state will take the practitioner's license away from him or her. The LPC will also be ordered to cease his or her professional practice.

Suspensions vary in length and degree. As a general matter, a suspension operates like a revocation, but the LPC's license to practice is removed for a specific period of time, during which the licensee may not engage in practice. (An "extended suspension" is precisely that: a suspension for a period longer than the norm.)

The practitioner often will be required to undergo education and training and/or therapy during the term of the suspension. Under a "probated suspension," on the other hand, an LPC may continue to practice, if he or she meets specific requirements during the suspension period.

The LPC may be required to engage in additional education and training, undergo therapy him or herself, and/or report to a supervising practitioner. Another variant is "probated suspension with administrative penalty": In addition to meeting the requirements of the probated suspension, the LPC will be required to pay a fine.

Finally, if an LPC receives a reprimand, an official letter of reprimand is sent to the practitioner, and the existence of the reprimand appears on his or her record. However, reprimanded LPC’s may still practice.

Within the disciplinary process, "voluntary" options also exist. Under certain circumstances, an LPC may be permitted to choose one of these options rather than have a particular sanction imposed. For example, rather than have one's license revoked, a practitioner may choose to surrender his or her license. With regard to lesser sanctions, under certain circumstances, an LPC may be offered the opportunity to enter into a "settlement agreement," under which the Board and the LPC avoid the need for a formal hearing by entering into an agreement that will permit the practitioner to retain his or her license by complying with certain conditions (e.g., education, supervision, restricted practice, etc.). There are generally two varieties of settlement agreements: 1) a "settlement agreement with stipulations," which is the basic form; and 2) a "settlement agreement with administrative penalty," which requires the LPC to pay a fine in addition to complying with the stipulated terms of the agreement. Subchapter k also provides for administrative penalties.

The Web site of the Texas Board of Examiners of Professional Counselors lists the name and license number of each LPC who has been subject to any form of professional discipline within the past seven years, as well as the type of discipline imposed. (Texas Department of State Health Services, 2007b)

Conclusion

Over the history of counseling knowledge, sophistication and tools have converged for effective, humane, clinical practice and for providing services to a diverse population. Know the principles upon which the specific ethical guidelines and laws are based, and you will work with more relevance and confidence. Remember the resources available for resolving ethical and legal concerns for a less stressful and better-supported practice. You are part of a profession filled with great minds discovering new answers.

Appendix: Texas Administrative Code, Title 22, Part 30, Chapter 681: RULE §681.42 Sexual Misconduct:

(a) For the purpose of this section the following terms shall have the following meanings.

  (1) Mental health services means assessment, diagnosis, treatment, or counseling in a professional relationship to assist an individual or group in:

    (A) alleviating mental or emotional illness, symptoms, conditions, or disorders, including alcohol or drug addiction;

    (B) understanding conscious or subconscious motivations;

    (C) resolving emotional, attitudinal, or relationship conflicts; or

    (D) modifying feelings, attitudes, or behaviors that interfere with effective emotional, social, or intellectual functioning.

  (2) Mental health services provider means a licensee or any other licensed or unlicensed individual who performs or purports to perform professional counseling or mental health services, including a licensed social worker, a chemical dependency counselor, a licensed marriage and family therapist, a physician, a psychologist, or a member of the clergy.

  (3) Sexual contact means:

    (A) deviate sexual intercourse as defined by the Texas Penal Code, §21.01;

    (B) sexual contact as defined by the Texas Penal Code, §21.01;

    (C) sexual intercourse as defined by the Texas Penal Code, §21.01; or

    (D) requests by a licensee for conduct described by subparagraph (A), (B), or (C) of this paragraph.

  (4) Sexual exploitation means a pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. The term does not include obtaining information about a client's sexual history within standard accepted practice while treating a sexual or marital dysfunction.

  (5) Therapeutic deception means a representation by a licensee that sexual contact with, or sexual exploitation by, the licensee is consistent with, or a part of, a client's or former client's counseling.

(b) A licensee shall not engage in sexual contact with a person who is:

  (1) a client or former client;

  (2) an LPC intern supervised by the licensee; or

  (3) a student at an educational institution at which the licensee provides professional or educational services.

(c) A licensee shall not engage in sexual exploitation of a person who is:

  (1) a client or former client;

  (2) an LPC intern supervised by the licensee; or

  (3) a student at an educational institution at which the licensee provides professional or educational services.

(d) A licensee shall not practice therapeutic deception of a person who is a client or former client.

(e) It is not a defense under subsections (b) - (d) of this section if the sexual contact, sexual exploitation, or therapeutic deception with the person occurred:

  (1) with the consent of the client;

  (2) outside the professional counseling sessions of the client; or

  (3) off the premises regularly used by the licensee for the professional counseling sessions of the client.

(f) The following may constitute sexual exploitation if done for the purpose of sexual arousal or gratification or sexual abuse of any person:

  (1) sexual harassment, sexual solicitation, physical advances, or verbal or nonverbal conduct that is sexual in nature, and:

    (A) is offensive or creates a hostile environment, and the licensee knows or is told this; or

    (B) is sufficiently severe or intense to be abusive to a reasonable person in the context;

  (2) any behavior, gestures, or expressions which may reasonably be interpreted as inappropriately seductive or sexual;

  (3) inappropriate sexual comments about or to a person, including making sexual comments about a person's body;

  (4) making sexually demeaning comments about an individual's sexual orientation;

  (5) making comments about potential sexual performance except when the comment is pertinent to the issue of sexual function or dysfunction in counseling;

  (6) requesting details of sexual history or sexual likes and dislikes when not necessary for counseling of the individual;

  (7) initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee;

  (8) kissing or fondling;

  (9) making a request to date;

  (10) any other deliberate or repeated comments, gestures, or physical acts not constituting sexual intimacies but of a sexual nature;

  (11) any bodily exposure of genitals, anus or breasts;

  (12) encouraging another to masturbate in the presence of the licensee; or

  (13) masturbation by the licensee when another is present.

(g) Examples of sexual contact are those activities and behaviors described in the Texas Penal Code, §21.01.

(h) A licensee shall report sexual misconduct as follows.

  (1) If a licensee has reasonable cause to suspect that a client has been the victim of sexual exploitation, sexual contact, or therapeutic deception by another licensee or a mental health services provider, or if a client alleges sexual exploitation, sexual contact, or therapeutic deception by another licensee or a mental health services provider, the licensee shall report the alleged conduct not later than the 30th day after the date the licensee became aware of the conduct or the allegations to:

    (A) the prosecuting attorney in the county in which the alleged sexual exploitation, sexual contact or therapeutic deception occurred; and

    (B) the board if the conduct involves a licensee and any other state licensing agency which licenses the mental health services provider.

  (2) Before making a report under this subsection, the reporter shall inform the alleged victim of the reporter's duty to report and shall determine if the alleged victim wants to remain anonymous.

  (3) A report under this subsection need contain only the information needed to:

    (A) identify the reporter;

    (B) identify the alleged victim, unless the alleged victim has requested anonymity;

    (C) express suspicion that sexual exploitation, sexual contact, or therapeutic deception occurred; and

    (D) provide the name of the alleged perpetrator.

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