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Monday, February 20, 2012

Q&A about Patient Abandonment or Wrongful Termination

The following exchange is taken from a national ethics listserv discussion.  We acquired permission from both parties to post this dialogue.

Jeff Younggren asks:

As many of you may know, I have been quite absorbed in the past year or so in the topic of abandonment/wrongful termination.  While I believe that we do owe our clients/patients pre-termination counseling when appropriate and possible, I also believe there conditions that make this unnecessary.

For example, I would argue that when a patient stops paying you, or threatens you or some other situation that compromises therapy or the therapeutic relationship; your obligations to provide pre-termination guidance or counseling are reduced and/or eliminated.  I contend that, emergencies aside, we have no obligation to see people for free if we do not want to (but you can if you want to).  I am puzzled as to how the profession can require someone to work for free when the patient/client violates the professional relationship by acting out, not paying a bill or threatening the professional in some way. 

What would you say about the rights of a licensing board, for example, to punish a psychologist for not providing free, non-emergent services to clients?

Gary Schoener replies:

These issues come up all the time because some clients threaten clinicians with a charge of abandoning them.  I have been involved in a number of cases where this has been litigated.

First of all, I agree that our field has no tradition of treating people without fee as an expectation. Medicine actually did have such a belief.  In fact, I began my career at a neuropsychology clinic and doctors and their families were treated for free by the psychiatrists and neurologists.

They expected us psychologists to do the same as a "courtesy" but we pointed out that:

(a) We did not get free care from any of our physicians; so this was not, with us, a collegial exchange of courtesies;
(b) While we might choose to treat someone for free, when we do it is usually for someone who does not have financial resources (not typical of doctors and their families); and,
(c) People often do not value free services; so this was questionable on that basis too.

BENEFICENCE:  In terms of professional issues, it is our duty to determine who we are capable of treating, to monitor progress and be willing to re-examine our presumption if they are not responding, and to cease treatment that is not working. 

NONMALEFICENCE:  Since all of our treatment techniques can be harmful, and because it is likely harmful in a general sense to provide 'treatment" which is not working, we are again obligated to discontinue treatment that is not working.

AUTONOMY:  The client can choose to leave therapy at any time, but autonomy does not include any "right to treatment." There is no such right.  If a client comes in and asks for  a lobotomy, a psychiatrist would not be expected to do it.  Autonomy in the current world means the right to have information and make informed choices, but it does not bind the practitioner to those choices.

FIDELITY:  The main issue here is that the client knows, going into treatment, that you will be both monitoring progress and that sometimes therapy does not work or does not help, and in that instance a referral should be considered.  In your initial discussion, you should outline your policies on payment for service.

JUSTICE:  Although not critical much of the time, if treatment of the client is harming other clients (e.g. disruption in the waiting room, disruption in group therapy), you can terminate the client.  Resources (e.g. you) are limited and our job is to use them where they can do the most good.  The clients are not "ours" and we are not "theirs" -- nobody has ownership.

Obviously, as a practical reality, practice standard, and consistent with the last revision of our APA code of ethics, we are not bound to provide free service, to continue with people who violate their agreements with us, or to continue in the face of threats by the client or anyone connected with them.

I believe our duty is to provide referrals and be willing to provide information to the new service provider.  It is not our job to find then another service provider -- just to make reasonable suggestions.  If they go into crisis, normally a referral to the local hospital or crisis service discharges ones duty.

In case law, there is that one exceptional case where a psychiatrist about to retire gave all his patients referrals.  However, one patient was very introverted and the psychiatrist himself admitted that a referral alone was probably not enough.  The man was on medications and the psychiatrist never got a records request.  The jury felt, based on the facts including the psychiatrist's own admissions, that he failed in his duty by not working to help this very vulnerable man (who had seen him for many years) make an adequate transition to another practitioner. This was not, of course, an abandonment case -- it was a duty to do more at the end.  I know of no other case, but this has been in the journals so often that it causes people to think that abandonment was the issue.

Jeff Younggren:

What is of great concern to me is that we have clinicians staying in nonproductive and adversarial treatment alliances out of their fear that they will be charged with abandonment if they stop seeing the client.  They fail to see that you can stop seeing anyone, it is how you do it that is key.  In some cases, you have no obligation to do anything other than stop seeing the client, like when your safety is threatened or a patient sues you and in others, like long-term treatment cases, you have a much more extensive obligation that likely includes termination sessions and referral.  We need to make sure that psychologists in practice understand this dynamic.
Gary Schoener:
I agree Jeff.  In addition, as is true for so many things like this, litigiphobia and anxiety are enemies of good decision-making.
Jeff Younggren:
Great point!  
Litigiphobia?  That is a new one for me.