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Boundary Violations: The (Inappropriate) Lethal Weapon of Plaintiffs' Attorneys in Psychotherapy Malpractice Lawsuits

by Dr. Martin H. Williams

By: Dr. Martin H. Williams (hompage) Email:

Hello, I am Marty Williams. I'm a psychologist here in the Bay Area. I provide direct clinical care in my work through the Kaiser Medical Center in Santa Clara, and I have also done a fair amount of expert witness work in cases that involve allegations of psychotherapy malpractice.

I will be talking today about "boundary violations," and, more accurately, I will be talking against boundary violations because I have come to believe that this concept can have far more to do with monetary awards for possibly undeserving plaintiffs' than about the proper conduct of psychotherapy. I have seen this term used by plaintiffs' experts to make ordinary procedures used especially by humanistic practitioners appear to be seedy. I am speaking out against it because I feel it is unfair, it is part of a witch hunt mentality, and because I believe that humanistic therapists have every right to practice in their own way, that we all don't have to adopt the ground rules of psychoanalytic psychotherapy, and that we don't have to listen to our most conservative of supervisors in deciding how we are going to practice. I also understand how this boundary violations craze came about--and it's certainly well intentioned, albeit in a very conservative way, and I will also be talking about that.

Boundary Violations Defined

To compare our opinions about boundaries, let me give you a list of boundary violations to see where you stand on this topic. Ask yourself whether in the practice of psychotherapy it is always an ethical mistake to:

Self-disclose information about your life, your family, your experiences or your feelings--including your positive or negative reactions to the patient you are treating, Accompany your patient to any destination outside your office, such as: taking a walk together during a session, having a meal together, accepting a ride should your car be broken or offering the patient a ride  Accept a small gift from a patient or give a gift to a patient; Hug a patient or engage in any other form of non-sexual touching; Incorporate forms of therapy that involve physical manipulation; Lend a book or cassette tape to a patient  See a patient for one or more treatment sessions without charging a fee; Send a patient a birthday card; Accept an invitation from a patient to attend a special event, such as a wedding or retirement party.

Regardless of your decision regarding the appropriateness and ethicality of these various behaviors, I can tell
you two things about them:

1. They have been used in civil and licensing board litigation as examples of unethical, harmful and
actionable psychotherapeutic conduct in an of themselves, and

2. They have been used in civil and licensing board litigation as evidence of the existence of an inappropriate
sexual relationship between therapist and patient.

We should think for a minute about what is meant conceptually by a boundary violation. It is really a dual relationship--a relationship that concurrently includes both therapy and something else, like a personal or social relationship. The presumption is that the therapist has violated some code of conduct. However, there really isn't any code of conduct, it isn't written down and is often in the eye of the beholder, as well as certainly a function of context. Gutheil (1998) gives the example of the patient who is offered a ride home from the session by the therapist during a blizzard. Is this a boundary violation? Well, Gutheil says we need to consider whether this is a rural setting without access to subways--in which case, presumably, the therapist is crossing a boundary based on genuine need, or an urban setting, where the therapist's gesture would be suspect--perhaps he is using the blizzard as an excuse to get closer to a patient he wants to be close to. Gutheil wants us to consider the context in which the boundary crossing occurs. This is a good idea, but it leaves something out. Some therapists, like Arnold Lazarus and his followers, simply believe in practicing in a style such that they would always feel fine about offering a patient a ride or accepting a ride. This does not make them sexual exploiters, and it does not make them unethical. However, if Lazarus or his followers are ever sued by someone who cites the ride giving as somehow causing a patient harm, there will be plenty of expert witnesses ready to testify that such behavior is negligent.

(You may have noticed that I intentionally said "always" regarding these behaviors. I did this because if someone believes these things might be acceptable under some circumstances, that person becomes vulnerable in court. The problem in court is that the defendant might think the circumstances justified the behavior, and the plaintiff's expert might not.)

One question we should ask is how did this come to be. The answer is simple: some authors opined that these behaviors constituted boundary violations and were, consequently, beneath the standard of care. Every author who publishes something along these lines is systematically tracked down by plaintiff's experts and cited in court in boundary violations cases.

Where There's Smoke, There's Fire

These authors put forth a certain kind of logic, and it makes sense up to a point. Their argument is that therapists who sexually exploit patients do not do so in the context of otherwise above-board therapy. Instead, these therapists systematically warp the therapeutic context as part of their seduction of the patient. In these cases, boundary violations lead to sex.

Thus, if we look back at the cases of therapist patient sex, what do we find?

We find sessions scheduled late in the day, when no one else was around the office, and with no next patient to show up and interrupt the mood. We find a lack of distinction between the therapeutic and the social, with the therapist sometimes talking as much about himself or herself as the patient. We sometimes find a gradual movement of the chairs in the office, so that the therapist on a roller-chair gets closer and closer to the patient. We might find them going for walks together, exchanging gifts, eating meals together--much of this going on during what you might call the "dating" phase, which occurs before the relationship becomes overtly sexual.

The idea that those who are very concerned about boundaries want to put in your head, and in the jury's head, is that the therapist a) has an obligation to act in a certain set of circumscribed ways to establish and maintain the frame of therapy, and b) loses control of himself and finds himself impulsively crossing boundaries due to his own emotional needs, his own immaturity, and, very likely, because of his growing sexual attraction for the patient. The general idea is that the therapist simply cannot exert enough self-control to remain a therapist and restrict himself to therapeutic behaviors. He needs to use the patient to satisfy his emotional needs, and he is out of control. [By the way, I'll generally use "he" to represent the therapist and "she" the patient because the statistics indicate that is the most likely pattern, although all possibilities exist.] I believe the various requirements for therapist self-denial were once spelled out in Freida Fromm-Reichman's book, Principles of Intensive Psychotherapy, and this would be consistent with the boundary maintaining viewpoint. The big issue, as I'll discuss below, is that no law says you have to think like a psychoanalyst to do psychotherapy.

All of these behaviors which are part of the seduction are considered boundary violations, because they cross the boundary between that which is always appropriate and that which may not be. In cases of sexualized therapy, you can say these minor boundary violations are the smoke and the overt sex is the fire. Sometimes it is true that "where there's smoke there's fire." The problem, though, is that many of these same behaviors might be a necessary part of some forms of therapy and might have nothing whatever to do with seduction. Sometimes smoke has nothing to do with fire. Protecting patients from exploitation is good, but this became, in my mind, a classic case of throwing the baby out with the bathwater.

An Historical Note

This concept of "boundary violations" has only been around for about ten years or so. It has replaced "transference abuse" in the plaintiff's lexicon because it is less susceptible to attack. Transference abuse was the original legal concept that was used by courts to explain what had been wrong with therapist-patient sexual involvement: why it was not simply a form of consensual sex between adults. Courts found that therapists owed a duty to patients to protect them from sexual acting out, as patients are in the throes of transference and cannot, consequently, make adult decisions regarding sex. If you recall, this psychoanalytic doctrine posits that in analysis--and, by the way, it was only intended to refer to analysis--the patient regresses in reaction to the analyst providing her with a blank screen. The patient projects onto the analyst all her unresolved parental issues. Her longing for sex with the analyst is really a reliving for her of her oedipal longings for sex with her father. Thus, under the circumstances, as psychoanalysts viewed them, to take advantage of the patient's longings of this type was more like statuatory rape of a minor than like consensual sex.

But there was a big problem with this concept: It was psychoanalytic, and it was only a matter of time before defense experts figured out that therapists have no obligation to think psychoanalytically or to guide their practice-styles by Freudian notions. As Gutheil (1989) has pointed out:

It seems that professionals who belong to a school of thought that rejects the idea of transference, behaviorists, or psychiatrists who provide only drug treatment, are being held to a standard of care they do not acknowledge. (p. 31)

The concept of "boundary violations" came along to replace "transference abuse." It would be put forward as something that applies across all theories and all approaches. Juries would be taught that all good therapists believe in maintaining certain boundaries and that this has nothing whatever to do with any particular theory of therapy.

In fact, a local psychiatrist, Peter Rutter, has written several books along these lines that talk more about trust in a fiduciary relationship than about boundaries. The idea is that the patient, or student, or parishioner, places herself in the hands of the trusted authority figure who then has the ability, if he is corrupt, to abuse this trust for the purpose of his own sexual gratification.

You can decide for yourself whether you agree with Rutter, as his viewpoint is very popular. One problem that I have with it is that many very successful sexual relationships develop in the very same contexts as these abusive ones, with the male in the mentoring or authority position and the woman in the role of the student. Not all of these contexts are legally actionable along the lines of therapist-patient sex, but I wonder how different they are, and I suspect that outside of the courtroom there needs to be more of a grey area and we need to recapture the notion of adults bearing the responsibility for their actions, including consensual sex--without the excuse that "the power differential made me do it." I realize that this is a very large topic with a lot of possible debate about when is sex between adults really consensual and when is one party really manipulated.

Why Do Plaintiffs Need "Boundary Violations?"

If you pay attention to the newspapers, the cases we hear about often involve obvious and extreme examples of sexual exploitation of patients, and often not just one but many patients. I once naively wondered why plaintiffs made such a big deal about the minor boundary violations, like excessive self-disclosure, when it was obvious the case was all about the major boundary violation of a therapist-patient sexual relationship, something that is clearly proscribed by all psychotherapy ethics codes as well as state law in California and many other states. In the cases like this where I worked for the defense, I noticed that the plaintiff's experts were spending what appeared to me to be an inordinate amount of time trying to prove that things had occurred such as inappropriate self-disclosure and to argue that such behavior is detrimental to the therapy and to the patient. Why do they bother, since they have the goods on the therapist for the larger charge?

The answer is insurance coverage: Nearly all malpractice policies exclude payment of claims for damages resulting from therapist-patient sex. They will pay for your defense if the charge is denied, but if the charge is admitted or if the defense loses, there will be no insurance payment. Clearly, in view of this, the plaintiff has every reason to focus on the minor boundary violations and to try to convince the jury that the psychotherapy that had been carried out was so negligent and so far beneath the standard of care, as to have been harmful in an of itself--regardless of whether or not sex had every taken place.

Some may say that this is fine. After all, if a patient had been harmed by a sexual relationship with a therapist, why shouldn't that patient find a way to get her claim covered? Even, however, if you agree with the use of this strategy, consider that it has now evolved to the point where there have been lawsuits filed for boundary violations alone--where there have been no contentions or intimations that the relationship had become sexualized. The complaint is simply for negligent psychotherapy due to boundary violations.

This is a relatively new development, and we'll have to see how this kind of suit turns out. Of course, many times the insurance companies and the defendants are willing to settle for a relatively small sum of money, maybe less than $50,000, to make the suit go away. It may take some time before some of these pure boundary cases get to juries, and we get to find out how receptive juries turn out to be.

I'll give you an example of a pure boundary case that I consulted on. A female therapist treated a young boderline woman through her teenage years and nursed her through numerous suicide attempts and a chronic depression. In my mind, what really saved this patient was the degree of closeness that developed between her and her therapist. There were numerous phone calls, meals together, walks together, and a special celebration on, I believe, her 21st birthday because the patient had for years fantasized about killing herself by that point. There was no doubt in my mind that this therapeutic relationship had been beneficial for the patient, but at the point that the therapist tried to separate from her and decrease the intensity of the therapy, the patient felt abandoned and ultimately sued. The case was settled, but had it gone to court, the key issue would have been the motivation of the therapist. The jury would have to decide whether the inordinate degree of caring and giving she had shown the patient was the result of the therapist's committment to her profession and to this patient, or was it, as alleged, the result of the therapist's own pathology which caused her to have a uncontrollable need to establish and overly close relationship with the patient.

Consider that any juror can grasp, on a common sense level, that sexual exploitation is inappropriate. Will jurors buy the idea that psychotherapy is such an unusual form of social interaction such that the ordinary forms of socializing with which we are all familiar become harmful?

Quotations from the Believers

I believe these authors who put forth the boundary maintenance viewpoint were overly concerned about the protection of patients and not concerned enough about the need for practicing psychotherapists to feel free to practice in innovative ways, to "think outside the box," to use a currently popular phrase, and to avoid being stifled by a set of needless restrictions on their practice styles.

Pope (1994), for example, states the following:

Establishing safe, reliable, and useful boundaries is one of the most fundamental responsibilities of the therapist. The boundaries must create a context in which therapist and patient can do the work of therapy. (p.70)

Simon provides the following list of "treatment boundary guidelines" which appears in several of his publications, and which I have seen introduced in court numerous times:

Maintain therapist neutrality. Foster psychological separateness of patient. Obtain informed consent for treatment and procedures. Interact verbally with clients. Ensure no previous, current, or future personal relationships with patients. Minimize physical contact. Preserve relative anonymity of the therapist. Establish a stable fee policy. Provide a consistent, private, and professional setting. Define length and time of sessions.
(1994, p. 514)

And Simon also offers the following opinion, which has been convincing to jurors around the country:

The boundary violation precursors of therapist-patient sex can be as psychologically damaging as the actual sexual involvement itself. Unfortunately, professional ethics codes are usually silent concerning the specific boundary violations that often precede therapist sexual misconduct. (P.614)

The authors who created "boundary guidelines" undoubtedly themselves practice in a style of psychotherapy that does not require the crossing of any boundaries: classical psychoanalytic psychotherapy, for example. Out of their revulsion for some of the exploitation of patients that other therapists were carrying out, they put forth standards of what can be called "boundary maintenance" to help protect patients.

Because of the style of practice of the authors who promulgated the boundary guidelines, they saw no downside to the profession should the guidelines become widely accepted. They believed, in other words, that all ethical therapists would automatically find themselves in compliance with the need to maintain boundaries. In the words of Simon (1995), one of the strongest advocates for boundary maintenance, "The boundary guidelines..., with appropriate clinical modifications, are a unifying element in the over 450 different forms of psychotherapy currently in existence" (p. 90).

Perhaps Simon is right; that depends on what he meant by the words "appropriate clinical modifications." Simon may have allowed for the commonplace ways that humanistic and behavioral practitioners, for example, routinely cross what others perceive as boundaries. Simon may not have anticipated the rigid and unforgiving ways and boundary guidelines would be presented to jurors to make the practices of mainstream humanistic psychotherapists, for example, appear to be sleazy.

The Slippery Slope

In addition to this viewpoint that boundary violations are harmful, there is the popular "slippery slope" argument, which suggests that boundary violations nearly inevitably lead to therapist patient sex. For example, Strasburger et al (1992) write:

The slippery slope of boundary violations may be ventured upon first in the form of small, relatively inconsequential actions by the therapist such as scheduling a "favored" patient for the last appointment of the day, extending sessions with the patient beyond the scheduled time, having excessive telephone conversations with the patient, and becoming lax with fees. Violations can involve excessive self-disclosure by the therapist to the patient... Gifts may be exchanged. The therapist may begin to direct the patient's work and personal life choices... Meetings may be arranged outside the office for lunch or dinner.

... Notice that in this scenario, the therapist has not touched the patient, nor has the therapist said or done anything that is overtly sexual. The treatment, however, has already become compromised, and the therapist may be found liable civilly. The therapist is also vulnerable to action by a licensing board, should the patient wish to make a complaint. (P. 547 Humanists and Behaviorists and Other Legitimate Boundary Crossers

In contrast to this viewpoint, there are therapists who legitimately cross boundaries, not because it is part of a seduction, but because that is how they do therapy, that is how they get results. These therapists are often humanistic. Here is a quotation from Sid Jourard (1971) on his work:

In the context of dialogue I don't hesitate to share any of my experience with existential binds roughly comparable to those in which the seeker finds himself (this is now called "modeling"); nor do I hesitate to disclose my experience of him, myself, and our relationship as it unfolds from moment to moment... I might give Freudian or other types of interpretations. I might teach him such Yoga know-how or tricks for expanding body-awareness as I have mastered or engage in arm wrestling or hold hands or hug him, if that is the response that emerges in the dialogue.

I do not hesitate to play a game of handball with a seeker or visit him in his home--if this unfolds in the
dialogue (p. 159).

Along similar lines, Arnold Lazarus (1994a, 1994b) wrote that he finds in his practice of behavior therapy the need to do ordinary social things with patients, such as asking them to join him for a meal. He strongly believes that to do otherwise would ruin the kind of therapist-patient relationship that he wants to create. Keep in mind that behavior therapy does not come from a tradition in which transference is an issue--in fact, they laugh at transference. Lazarus himself has called it a myth. What is important for them is to develop a warm and positive relationship with the patient which creates the context for the application of the behavioral techniques. We may not agree with Dr. Lazarus' regarding how to do therapy, but should anyone have a right
to dictate how Dr. Lazarus may practice?

Here is a cautionary tale that I cited in my 1997 article on Boundary Violations. Goisman and Gutheil (1992) provide a poignant example of what might occur when commonplace behavior therapy procedures are held up to psychoanalytic scrutiny regarding boundary maintenance:

We are aware of a case currently in litigation where a number of the charges against an experienced behavior therapist flowed from the testimony of a psychoanalytically trained expert witness, who faulted the behavior therapist for assigning homework tasks to patients, hiring present and former patients for jobs in psychoeducational programs and other benign interventions, and performing a sexological examination and sensate focus instructions in a case of sexual dysfunction. From a psychoanalytic
viewpoint all of these would likely constitute boundary violations of a potentially harmful sort, but from a behavioral viewpoint this is not the case. The legal system in this lawsuit had some difficulty, as is commonly the case, in grasping the distinctions between therapies and the variations of boundary norms appropriate to each type of treatment. (p. 538)

Incidentally, as I was preparing an article on a related topic for the journal Psychotherapy, I had a very hard time finding quotations in which humanists advocate the kind of boundary crossing practice style that they are known for. Do they do this less, or have they just learned to stop sticking their necks out?

Gutheil and Gabbard's Examples

Gutheil and Gabbard (1998) have recently published an article called Misuses and misunderstandings of boundary theory in clinical and regulatory settings, which just appeared in American Journal of Psychiatry in 1998. Actually, Tom Gutheil sent me a copy after he saw my article last year entitled, Boundary Violations: Do Some Contended Standards of Care Fail to Encompass Commonplace Procedures of Humanistic, Behavioral, and Eclectic Psychotherapies? which appeared in the journal, Psychotherapy. It seems we are in agreement about one central point: The pendulum has swung too far and we have too look at context when we think about what is or is not an actionable boundary violation.

Gutheil and Gabbard offer the following examples:

"During a visit with her internist, a patient reported having had a number of recent losses through deaths of close family members. Discussion of these losses led her to burst into intense sobbing. Later that evening, the internist called the patent at home to see if she was all right. She reassured him that she was, but she later reported him to her state licensing board for the alleged boundary violation of calling her at home" (p. 412)

"A female case manager (a community mental health center staff member given the responsibility of coordinating care and rendering practical assistance to patients) took many trips with a female patient to necessary appointments, accompanied the patient's family to the beach with her own family to encourage socialization and to model parenting, and performed many other out-of-office activities. The patient, a paranoid young woman, formed a strong attachment to the case manager and became furious when the relationship had to end because of the latter's pregnancy. At that point she persuaded her parents to bring an ethics violation complaint against her former helper. In subsequent litigation, no evidence emerged that the patient had been exploited or harmed in any way. But the regulating board hearing the case held the case manager to the standard of a psychoanalyst as to what constituted professional boundaries" ( p. 411).

Here is an example from my own experience as a defense expert. This one comes from a case in which John Fleer was the defense attorney. He gave a presentation about another aspect of this same case last week at the meeting of the College of Forensic Psychiatry.

· I'll simplify some of the facts: The plaintiff had been in psychotherapy with the defendant for 11 years. She was a very disturbed individual who had been very resistant to treatment and had fired numerous therapists. She was alleging that her psychiatrist of 11 years had had a sexual relationship with her.

Her psychiatrist had died, and was not involved in the litigation. In fact, just as in the Gutheil and Gabbard example that I just read, it was the perceived abandonment by the therapist that led to the filing of the complaint.

The question which needed to be decided in court was whether there had, in fact, been a sexual relationship. There was no smoking gun--nothing that clearly indicated that a sexual relationship had existed. Lacking this, the plaintiff introduced the following facts as evidence that a sexual relationship must have existed:

The therapist had lent a book to the patient The therapist had accepted small gifts from the patient The therapist had met with the patient at her home when she had been disabled and bedridden with a back injury  The therapist had self-disclosed personal information about his family, which the plaintiff introduced in court as evidence that an overly-close and sexual relationship had existed. The therapist had called the patient at home when he was dying of a terminal illness.

Basically, what went on in this case was that the plaintiff tried to link these boundary crossings to sex. The logic of this argument is, as already put forth by Strasburger, that any therapist who has deviated to this extent from the rules (at least the rules that some people accept) for psychotherapy must be a sexual exploiter. It is important to note, by the way, that if a psychotherapist were sexually involved with a patient, one would expect all the same boundary violations to occur: self-disclosure, home visits, gift-giving, phone calls. The question we all must face is whether, just because these behaviors sometimes occur in conjunction with illicit therapist-patient sex, we should condemn the behaviors in and of themselves. The question, remember, is only
important to those therapists who have an interest in a more humanistic practice style, or who practice in some aspect of the health care system that requires them to cross what some consider inviolable boundaries.

A Generation Gap

One observation I have made is that most of the defendants I have come across have been middle aged. Some research has confirmed this. While it is true that newly trained therapists might intentionally cross boundaries, the fact is that they have been inculcated with the viewpoint that stresses the importance of boundaries in graduate or professional schools. In contrast, many therapists in my generation may never have taken an ethics course as part of their training, and, they may have been systematically trained in a method ortheory that advocates a very loose approach to boundaries. The upshot of this has been the courtroom fighting I have seen between younger expert witnesses honestly testifying that in their view the older defendant
should have known that the dining and taking walks together was inappropriate. Often, the younger, ethics expert, has enhanced credibility because of specific responsibilities regarding ethics, such as service on a state or national ethics committee. Even if the ethics expert is not younger, it may be someone who has simply taken an interest in ethics and who has attained a certain stature in that area. The defendant never much thought that these issues needed addressing, after all, there is no ethics code prohibition on self-disclosure, taking walks together, etc. In many cases, as you well know, the outcome is a function of how much the jury seems to like the defendant, the respective experts and the plaintiff. Unfortunately, what is right and wrong
may not really play a very large role.


I think I have made clear what the dangers are in trying to enforce this notion of "boundary violations" in psychotherapy. What I haven't yet said, but something I think might be correct, is that boundary violations could be found in the practices of nearly every therapist, as long as their work is examined out of context. Now this concept is making its way into ethics codes. I found some language regarding respect for boundaries in a social work ethics code, and I don't know whether it will appear in the next revision of the APA Ethics Code.

The way to prevent having all of us having to live with this stifling set of practice guidelines is simply to speak out. We need to object when our Ethics Committees go down this path, and we need to be willing to testify in court regarding the foolishness of claiming that someone practiced negligently because he or she had a meal with a patient. Some of the silliness in ethics prosecution by licensing boards has also been addressed by PAN, the Professional Advocacy Network, and I urge all of you to join. (213) 931-5445


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Boundary Violations: The (Inappropriate) Lethal Weapon of Plaintiffs' Attorneys in Psychotherapy Malpractice

Martin H. Williams, Ph.D.

Self-evaluation Questions

1. Plaintiffs' attorneys might bring non-sexual boundary violations into a civil suit even though sexual abuse
of the patient has already been proven. T F (T)

2. What two psychotherapeutic approaches encourage practitioners to commit what some would call boundary
violations?__________________, and ___________________.

(Humanistic and Behavioral)

3. Which of the following behaviors might be called boundary violations.

a) seeing a patient for therapy without billing for the session

b) allowing a session to run five minutes over the customary time limit

c) taking a walk with a patient during a therapy session

d) having a patient give the therapist a nude massage

e) all of the above