Legal Issues in Social Work, Counseling, and Mental Health: Guidelines for Clinical Practice in Psychotherapy


Robert G. Madden

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    LEGAL ISSUES IN SOCIAL WORK, COUNSELING, AND MENTAL HEALTH: Guidelines for Clinical Practice in Psychotherapy

    by Robert G. Madden


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    To Doreen, my life partner, for your love, emotional support, encouragement, unfailing belief in me, and for your gentle editing: You make it all possible and meaningful.


    The influence of the legal system on American society has never been more prominent than during the decade of the 1990s. Whether because of relaxed rules for filing lawsuits, the social phenomena of turning to the courts to solve all disputes, or the media coverage of trials and other legal procedures, mental health workers have seen their practice increasingly affected by the law. The specialized language and procedures of the legal profession make it difficult for most nonlawyers to participate in this part of the democratic process. As a clinical social worker and an attorney, I have found myself in the role of educator with both professions. Clinicians need to know how to respond to legal issues related to practice and lawyers need to know the roles and perspectives of mental health practitioners.

    This book grew out of my experiences training and consulting with lawyers, social workers, counselors, and other mental health professionals. When faced with an impending legal issue, most clinicians become intimidated. Their focus is directed at avoiding or at least minimizing the scope of their involvement. They seldom understand the expectations of lawyers or the opportunities to influence the legal process. I believe that the demystification of the law is necessary to enable clinicians to feel empowered by their interactions with the legal system and thus make the law more therapeutic for clients and more supportive to mental health professionals. This book is intended to help readers feel more confident and competent when faced with legal issues in practice.

    The increased attention to the legal issues has been focused primarily on malpractice risk reduction. This perspective is limiting and reactive. If mental health professionals understand and embrace opportunities to influence legal decisions, they can develop a more sophisticated approach to handling legal issues as they arise in practice. Further, they can structure practice policies so as to reduce the potential of causing harm to clients and, from this strategy, reduce the risks of being sued.

    Many times when I complete a legal presentation to mental health clinicians, I see a look of dread and fear on people's faces. A common response is that these issues are never thought about until there is a problem. Practice policies may be lax or nonexistent, and clients' legal rights may be routinely ignored. It is time to stop avoiding the law and denying the obvious legal implications of mental health practice. I hope that the readers of this book will use the information to be prepared for the inevitable interactions with the legal system.

    This book begins with an examination of the role of the law in society, especially the ways in which the law influences practice. Succeeding chapters analyze various aspects of clinical practice including record keeping and confidentiality, the standard of care for particular treatment situations, and the business and management issues faced by agencies and private practitioners. The final chapter illustrates some of the legal issues often faced by clients. I hope students and clinicians read the book to improve their knowledge of the law, but because the legal issues are complex, this book also can be used as a reference source, as legal issues arise in practice.

    The use of case descriptions throughout the book is intended to illustrate the workings of the courts, to provide insight into the manner of legal decision making, and to expose the reader to the orientation of legal professionals. Some of the case material is presented in narrative style, while other cases are quoted directly from the legal opinions issued by the courts. Cases have been chosen carefully to address specific legal issues. As a result, only those sections of the opinion that relate to the mental health issue have been reproduced. In most cases, the text has been edited for readability and the internal citations have been omitted from the court opinions. Readers are directed to the official case report for the complete text and for the exact language of the cases.

    The legal information in this book is intended to educate the reader about general legal principles. None of the information in this book should be considered legal advice. Practitioners are urged to consult with a local lawyer because each jurisdiction has its own statutes and case law and may not follow the majority view on a particular issue. Local chapters of professional organizations often maintain lists of attorneys who have knowledge or experience in mental health law.

    The legal issues in mental health practice are too numerous and complicated to be treated in any single volume. Given that the law is constantly evolving, it is my hope that more practitioners and scholars will participate in study and communication about the variety of ways the law influences practice and, just as important, the many ways clinicians can influence the law.


    To my sons, Bryant and Kyle: Thanks for understanding those times when I had to work. I would rather have played. To my parents for inspiring me and supporting my development as a person.

    I would like to acknowledge the help of my friends and colleagues who read the manuscript. Your wise counsel and honest criticisms are sincerely appreciated: Pat Doherty, Raymie Wayne, Melissa Parody, and Chris Garrahan.

    To my colleagues at St. Joseph College for supporting my scholarship. To the faculty at the University of Connecticut School of Law for your generous hospitality while I was a visiting scholar working on this project.

    And to series editor Charles Garvin, Jim Nageotte, and the staff at Sage: your guidance, support, and experience enriched this book.

  • Afterword

    A living thing is distinguished from a dead thing by the multiplicity of the changes at any moment taking place in it.

    Herbert Spencer (Principles of Biology, 1865)

    The premise explored at the start of this book was that the legal system is an instrument of society used to regulate the conduct of its members. Succeeding chapters demonstrated that the legal system is also a malleable system that requires information from a variety of sources to establish rules and guidelines for behavior. Because of its perceived authority and its obtuse terminology and procedures, the legal system feels uncomfortable and is initially inaccessible for nonlawyers. But there are many ways in which the mental health professions can influence the legal system so that the rules used to guide and judge the field actually reflect the standards of the professions and the needs of clients. The challenge for mental health professionals is to tolerate the discomfort of foreign terminology, procedures, purposes, and structures and become a part of the system that exerts so much influence on practice.

    The legal issues in social work, counseling, and psychotherapy often have been viewed from the perspective of their “interference” with professional practice. Clinicians are taught how to avoid legal problems and reduce malpractice risks. Unfortunately, although useful in some respects, this approach is insufficient. The main reason for legal system involvement in mental health practice is to create and enforce standards that protect the public. Most of the time, the legal complaints against clinicians that reach the trial stage are substantive. There should be an available means to levy sanctions against offending practitioners and to award compensatory damages to injured clients. The mental health community should support this system. The standards of care for practice and the adherence to procedures to protect confidentiality and other rights of clients primarily exist to protect clients, not professionals. With this orientation, legal guidelines for practice can be viewed as consumer protection strategies, and adherence to their strictures is made more palatable.

    The Influence of the Law on Clinical Practice

    The influence of the legal system has been a reward, of sorts, for the growing legitimacy of counseling and psychotherapy in American society. As the field has developed, there has been an increasing need for standardization of practice methods and improved research to support common theoretical models. These standards should originate with the mental health professions. The professional associations must be active in refining guidelines for professional conduct as well as self-policing bad practice and dangerous practitioners. The legal system relies on such published standards, as well as expert witnesses, when there are lawsuits or other legal actions involving counselors, social workers, and psychotherapists.

    Case Law Often Makes Bad Law

    When a court is considering a legal complaint charging malpractice, the focus is on the facts of the particular case. The testimony and evidence about the standard of care in the profession is solicited by the attorneys representing both parties. In the absence of clear, accepted standards, courts may substitute their judgment for that of the professional community. In a case where there is a well-defined standard of care for practice, plaintiff attorneys may seek “expert testimony” that contradicts the generally accepted view within the profession. In all such situations, clinicians must testify with integrity. Obviously, the information presented in court is that which is supportive of the case. The adversarial system requires the opposing side to present evidence to contradict or clarify the plaintiff's evidence. Then it is the job of the jury, or the judge in a bench trial, to listen to all of the evidence and determine whether there was an injury, whether the defendant was at fault, and whether damages should be awarded.

    In this context, the evidence of the applicable standard of care may be overridden by sympathy for the injured party. If a jury returns a verdict in favor of a sympathetic plaintiff, it may be understandable, but no less dangerous. A decision in a high-profile lawsuit can result in other cases being filed using the same rationale and legal strategies. Before long, a trend of legal decisions has put the practice community on notice that the standard of care has changed. In response, professional associations publish articles about the new expectations, and individual practitioners who read about the results of the case adjust their practice accordingly to reduce their risk of liability.

    The way social workers, counselors, and psychotherapists influence the law. The problem with the scenario outlined above is the degree to which it reflects a pattern of professional inaction followed by reaction. Professional standards must be developed in the context of research and theory as opposed to emotional court cases. Individual practitioners need to be involved in ongoing practice research to evaluate the effectiveness of current therapies. When these standards are published by professional organizations, it is difficult to argue that one expert should be believed over the collective voice of thousands of practitioners. Professional organizations must also be vigilant in monitoring legal cases that have the potential to affect practice. In this regard, the professional organizations deserve credit for having assumed a more active role in recent years. When amicus briefs are filed in important cases by the professional organizations, they generally are given considerable weight. Finally, when a case does result in a changed expectation from previously accepted practice standards, the professional organizations need to be active in the legislative arena to introduce bills to codify the proper standard, thereby eviscerating the precedential value of the court decision.

    Many clients enter counseling or psychotherapy because their behaviors have caused problems in their lives. At times, it may be an inability to control anger or sadness, while at other times, it may be a difficulty controlling impulsive actions. One of the defining characteristics of an effective clinician is the ability to be nonjudgmental about these behaviors. Clinicians see behavior as functional in that it addresses some need of the client, even if the behavior seems self-destructive or otherwise difficult to accept. Mental health professionals must be able to use the same approach to working with attorneys. Generally attorneys are focused on zealous advocacy for their clients. At times, this causes the interactions between clinicians and lawyers to be strained but, most often, clinicians can improve the effectiveness of their interactions with lawyers by understanding the role each party is playing in a case. Lawyers must deal in facts in the courtroom and may have little patience for indecisiveness and soft information. On the other hand, attorneys generally are concerned about their clients and react well to efforts to support a client's emotional health.

    Clinicians need to be mindful of the legal implications of their business practices and the policies that govern their interactions with clients. Carefully designed business and practice policies that ensure compliance with legal requirements are critical to protecting client rights and personal assets. If involvement with the legal system is accepted as a necessary and unavoidable reality in today's practice environment, clinicians will be prepared for handling questions about client confidentiality, issues about client records, and will understand how to respond to a subpoena.

    The best strategy for asserting influence in the legal process begins with knowledge about the legal system. When mental health professionals understand the purpose of the proceeding, clarify the roles of the attorneys and other professionals, and prepare themselves for the roles they are being asked to play, they are granted opportunities to educate and thus influence the legal system.


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    About the Author

    Robert G. Madden is Associate Professor at Saint Joseph College (1678 Asylum Avenue, West Hartford, Connecticut 06117). He teaches social policy and field practice in the Baccalaureate Social Work Program. He holds a master's degree in social work from Columbia University and a law degree from the University of Connecticut. He has extensive clinical social work experience and currently maintains a private law practice, which provides representation, consultation, and training to the social work community. He serves on the board of directors of the Children's Law Center, a nonprofit group that represents children in Connecticut. He has published articles on issues at the intersection of law and social work including child welfare, disability law, HIV disease, recovered memory, and psychotherapy practice. He is also active with the Education and Legislative Action Network of the Connecticut Chapter, National Association of Social Workers.

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