ethics

AAMFT’s proposed new ethics code makes a bold choice

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Golden gavel 1, By walknboston (Flickr: Gavel) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsRomantic relationships with former clients or their family members would be prohibited… forever.

In the current working draft of the Code of Ethics for the American Association for Marriage and Family Therapy (AAMFT), there are a number of proposed changes worth discussing. Perhaps the most significant proposed change is in the rules about family therapists engaging in romantic relationships with former clients or their family members. The existing rule reads as follows — I know it’s long, but stick with me. Except for the title of the subprinciple, all emphasis mine:

1.5 Sexual Intimacy with Former Clients and Others. Sexual intimacy with former clients, their spouses or partners, or individuals who are known to be close relatives, guardians or significant others of clients is likely to be harmful and is therefore prohibited for two years following the termination of therapy or last professional contact. After the two years following the last professional contact or termination, in an effort to avoid exploiting the trust and dependency of clients, marriage and family therapists should not engage in sexual intimacy with former clients, or their spouses or partners. If therapists engage in sexual intimacy with former clients, or their spouses or partners, more than two years after termination or last professional contact, the burden shifts to the therapist to demonstrate that there has been no exploitation or injury to the former client, or their spouse or partner.

The proposed new rule is much simpler and more stark:

1.5 Sexual Intimacy with Former Clients and Others. Sexual intimacy with former clients or with known members of the client’s family system is prohibited.

Gone would be the current “two-year rule.” Under the current rule, a therapist could get into a sexual relationship with a client’s family member without fear of repercussions if two years have passed since the end of therapy. However, a therapist who engages in a sexual relationship with the former client or their partner is always at some level of risk; it is, after all, very hard to prove the negative, especially in mental health. If someone says they have suffered emotionally, as the result of a romantic relationship with their former therapist, it is a high bar for the therapist to prove otherwise. As such, the current code effectively discourages relationships with former clients or their partners forever. The proposed new rule would shift that discouragement into a clear prohibition, and extend its reach to include all known members of the client’s family system, not just their partners.

There is a potential problem with the application of a blanket rule like this. Consider the family therapist working in a rural area, who may run parenting groups or other workshops for their county — a not-uncommon situation, especially when the therapist may be the only licensed mental health provider in the county (or one of very few). That therapist would never be able to date anyone who had come to a single parenting class, a single therapy session, or a single workshop, even if decades had passed since then. And even if you’re on board with that part (I waffle; it’s easy for me to judge from a place like Los Angeles, but I wonder whether my view would be different living someplace else), bear in mind that the therapist also would never be able to date anyone who had a family member who had ever come to a single parenting class, a single therapy session, or a single workshop, no matter how many years ago.

By working in a rural area, a therapist would be systematically dismantling their dating pool.

This proposed AAMFT rule seems to me to be unduly punitive to those therapists working in rural areas (the same argument could be made, albeit a bit less strongly, for those working in insular communities in urban areas), especially those who do so for a long time. It is right and appropriate to demand that therapists not get romantically involved with former clients or their family members when the therapeutic relationship was recent enough to bring a certain “ick factor,” or any risk of harm or exploitation, into the dating relationship; extending the post-therapy prohibition on such relationships from the current two years to five or even ten would be fine with me, and it seems reasonable to include family members in addition to the client and their partner in that prohibition. But to tell a therapist she can’t date someone if she discovers that person’s aunt and uncle had come to her for two sessions of marriage counseling 20 years ago? That, to me, is going too far.

And it isn’t just me. When the American Counseling Association (which represents counselors of various forms, including LPCs and LPCCs) adopted their new Code of Ethics for this year, they kept their five-year prohibition on romantic relationships with former clients rather than moving to one that would last forever. The ACA language, I think, gets it right, by putting a high demand on counselors to consider (and, importantly, document that they considered) the risk of harm or exploitation before engaging in any such relationship, but stopping short of outlawing them for all time:

A.5.c. Sexual and/or Romantic Relationships With Former Clients
Sexual and/or romantic counselor-client interactions or relationships with former clients, their romantic partners, or their family members are prohibited for a period of 5 years following the last professional contact. This prohibition applies to both in-person and electronic interactions or relationships. Counselors, before engaging in sexual and/or romantic interactions or relationships with former clients, their romantic partners, or their family members, demonstrate forethought and document (in written form) whether the interaction or relationship can be viewed as exploitive in any way and/or whether there is still potential to harm the former client; in cases of potential exploitation and/or harm, the counselor avoids entering into such an interaction or relationship.

As a general rule, I really like the 2014 ACA Code, particularly for how well it handles issues related to technology. AAMFT could learn from the example. And while I have concerns about this particular piece, there is certainly much to like in the draft AAMFT code as well; as I said, more on that to come. The public comment period for the current AAMFT draft Code of Ethics goes through August 1.

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In the interest of full disclosure, I was part of a task force that developed recommendations for the 2012 update to the AAMFT Code. I had no involvement with the current working draft.

What do you think of the AAMFT draft? Your comments here are welcome. You can post them in the comments below, by email to ben[at]bencaldwell[dot]com, or on my Twitter feed.

Kentucky passes, and Tennessee considers, “conscience clause” legislation

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Bills would allow religious therapists to refuse treatment to gay and lesbian clients.
                                                                                                                                                                                                                                                                                                           

Kentucky state capitol buildingIt has been a big week for court cases on the rights of gays and lesbians, with California’s Proposition 8 and the federal Defense of Marriage Act both debated at the US Supreme Court. In the mental health world, over the past few months, Eastern Michigan University settled the Julea Ward case without admitting wrongdoing, the “Julea Ward Freedom of Conscience Act” languished in the Michigan legislature, and Jennifer Keeton lost her discrimination case against Augusta State. At a glance, it appears that gay and lesbian clients are making progress toward equality under the law and protection from discrimination in mental health care.

Kentucky and Tennessee, however, appear to be going in a different direction. Both states have moved to protect those therapists who would choose not to treat gay and lesbian clients based on the therapist’s religious beliefs.

Kentucky

In Kentucky, the state legislature has enacted a broadly-worded law to protect religious belief, even overriding the Governor’s veto to do so. The entirety of the new state law:

“Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A ‘burden’ shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.”

While the law is broad, it seems to me that it would clearly apply to a future case similar to Ward’s or Keeton’s; a student therapist refusing to treat gay and lesbian clients (in the language of the law, “refus[ing] to act”) based on a sincerely held religious belief could not be removed from their university (“exclusion from programs”) or even disciplined in any way (“assessing penalties”). Yes, the “unless” clause creates a possible exception, but it also creates a very high bar for that exception. And although the bill applies specifically to government, the state’s major family therapy programs — at Kentucky, Western Kentucky, and Louisville — are all housed in public (state-government-funded) institutions, so courts would be likely to apply the new law to any actions taken by these programs.

It is also notable that the Kentucky bill is so broad that it would apply in any setting, not just universities, so licensed therapists working in public mental health settings also appear to be granted the freedom to discriminate in client care based on their religious beliefs, without fear of repercussions.

Tennessee

Tennessee, meanwhile, is considering a much more specific bill modeled after last year’s unsuccessful effort at conscience clause legislation in Michigan. The Tennessee bill, which would allow students in counseling, psychology, or social work programs to refuse to treat clients based on the student’s religious beliefs so long as they refer to a therapist willing to serve the clients, has moved forward in the state legislature despite objections from psychology faculty at the University of Tennessee. Those faculty members argued that the bill would allow

“a Hindu, opposed to killing animals, refusing to counsel a hunter; a Christian refusing to provide counseling to a Jew; [and] a student who opposes alcohol consumption refusing to counsel someone with a drinking problem.”

The professors went on to argue that, by allowing therapists to make the kinds of choices described above, the bill would force educational programs to allow their students to violate professional codes of ethics. This, they argue, would threaten the programs’ accreditation status. (As I’ve mentioned before, accreditation has been a handy cudgel for those on both sides of the debate.)

The bill (SB514) has passed the Tennessee Senate and is currently awaiting hearing in the state House of Representatives.

Other states

There seems to be some confusion (especially in the Tennessee legislature) about whether the Michigan bill (HB5040 and SB518, in 2011) passed; as best as I can tell, it never made it out of that state’s Senate Education Committee. A similar Arizona bill, however, was successful, so these proposals seem to be batting about .500 so far.

As I have said previously, the underlying issues are complex. It is of course true that every mental health profession’s code of ethics prohibits discrimination on the basis of sexual orientation. But many of those same codes also require therapists to place the client’s values above their own — and to make referrals when the therapist is unable to do that, or if the therapist is unable, for any reason, to provide competent treatment. Religious therapists who have strong beliefs against homosexuality are placed in the difficult position of balancing the ethical requirement that they not discriminate with the ethical requirement that they provide competent services, without letting their own values interfere. What seems to be clear is that if mental health professional groups cannot better clarify these issues on their own, some state legislatures are quite willing do it for them.

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Your comments are welcome. Add to the discussion in the comments below, by email to ben[at]bencaldwell.com, or — if you are better at brevity than I am — through my Twitter feed.