Avoiding Liability Bulletin – January 2012

… A reader has asked me to write about a narrow aspect of termination. More precisely, the reader asks about private practice clinicians and their liability for clients who “stop coming” to therapy. Does the therapist continue to be liable for suicidal behavior and safety of the client? Does the clinician need to officially “close the file” and send notification to the client? These are the questions asked.

While I have previously written about various aspects of termination in the Avoiding Liability Bulletin (see the Archives), I have not directly addressed this narrow but important aspect of termination.

Termination of therapy or counseling is a critical juncture of the clinician-client relationship, much like the initiation of the professional relationship. Practitioners should always be aware of the status of their relationships with clients. Termination initiated by the practitioner can occur for a variety of appropriate reasons. I have previously written about the usefulness of including something about termination in the disclosure statement (whatever its title) that the practitioner gives to the client prior to the start of treatment. Clients have the right to terminate at any time and for any reason. When a patient terminates with the therapist or counselor, the manner of termination and the circumstances extant will often not require the practitioner to do anything further to confirm or acknowledge the termination, other than to document the termination (and the reasons) in the patient’s records.

At other times, the fact of termination may be more questionable or ambiguous. In such situations, the practitioner needs to take steps to clarify the status of the relationship and the intent of the client. If the status of the relationship is not clear, then there remains the possibility that the client may justifiably believe that he or she is still in a treatment relationship with the practitioner and that the practitioner continues to owe legal and ethical duties to the client. Were there to be a dispute as to whether or not the therapeutic relationship had ended, an ambiguity or lack of clarity will often be resolved against the therapist or counselor by a licensing board or by a court or jury.

If clients “stop coming” to therapy, that suggests to me that there was a unilateral and perhaps un-communicated termination by the client in the form of successive missed sessions. It is dangerous to allow such situations to occur. The practitioner is liable for his or her professional negligence (acts of omission or commission) causing harm to the client. When the client fails to attend a session (or more) without a communication or indication that there is a desire to terminate the relationship, the liability of the practitioner is similar to the liability the practitioner has for actions of the client occurring between sessions. The therapist should promptly clarify with the client, or make a reasonable attempt to clarify, whether or not the client is unilaterally terminating the relationship, and if so, why. The failure to take such action, and to do so promptly, can result in liability for events that occur following one or more of the missed sessions.

When such clarity is sought, the therapist or counselor will be better able to discern what action may be warranted. If the patient informs the therapist of the intent to end therapy, the therapist may want to let the patient know that one or more termination sessions are appropriate and that there will be no charge for these sessions. The therapist will usually want to make one or more referrals and will sometimes want to document the fact and manner of termination, and the fact that referrals were made, in a carefully drafted letter. All actions and conversations during the course of seeking clarity on the status of the relationship should be documented in the records. If the client is not terminating the relationship, then the therapist or counselor should try to re-establish the treatment regimen. It may be necessary for the practitioner to terminate the professional relationship where the client is ambiguous or silent about the relationship.

The attempted suicide or other self harm to a client, or a client’s physical violence against others, taking place after one or more missed sessions, may, depending upon the circumstances involved, result in liability for the therapist. The missed session could take place at a time when the therapist knew, or reasonably should have known, that the patient’s sudden and unannounced “no show” was a signal that the patient or others may be in danger. While each case presents different considerations, an unexplained missed session at a time during the course of treatment where the therapist already has concerns about the client’s safety, should be a signal that the therapist needs to promptly take some action – rather than to do nothing but wait to see if the client shows for the next session!

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Richard Leslie

Richard S. Leslie is an attorney and acknowledged expert on the interrelationship between law and the practice of marriage and family therapy and psychotherapy. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT) and has written articles regarding legal and ethical issues for their Family Therapy Magazine. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. While there, he also served as their director of Government Relations and tirelessly advocated for due process and fairness for licensees and applicants.

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