~

Pergamon

International Journal of Law and Psychiatry, Vol. 19, No. 2, pp. 183-i9ll, 1996
Copyright 1996 Elsevier Science Ltd
Printed in the USA. All rights reserved
0160-2527/96 $15.00 + .00
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S0160-2527(96)00004-0

Sexuality in the Mental Health System

Patients and Practitioners
Thomas G. Gutheil* and David N. Weisstub**

The sexual relationship between mental health professionals and their patients, even trainees, has become the subject of very considerable attention in
North America. It is difficult to ascertain whether this is attributable to an escalation of incidents or, rather, due to a heightened awareness among the population, given the m o v e m e n t of consumerism, and also due to the rise of feminist groups, or whether there is simply an inclination on the part of the media
to report and confront the p h e n o m e n o n . Whichever the prime movers in
bringing the issue to the forefront of public interest, the impacts are being felt
in the enactment of legislation. Approximately nine American states have
criminalized sexual misconduct; in the civil sector, litigation has m o u n t e d to
the point where, in 1988, sexual misconduct claims accounted for one-third of
the total monetary payout of insurance companies in malpractice.1 In addition
to the criminal and civil systems, there is a burgeoning review of cases before
licensing and registration boards. Decisions made by these institutions can
have a dramatic effect on the career profile of a practitioner. In the United
States, on a national level, not only adverse malpractice outcomes, but also actions following complaints before registration boards, are reportable to a National Practitioner Databank. This centralized registry receives all reports of
legal and disciplinary actions. Hiring agencies are required by law to check
with this registry.
Given the intensity with which the problem has been dealt, a reflection on
the conceptual terms of reference around which these cases are organized is
worthy of our attention. To begin with, the cases are viewed as representative
*Address correspondence to T h o m a s G. Gutheil, Professor of Psychiatry, Harvard Medical School,
Massachusetts Mental Health Center, 74 Fenwood Rd., Boston, M A 02115, USA.
**Philippe Pinel Professor of Legal Psychiatry and Biomedical Ethics, Facult6 de mddecine, Universit6
de Montr6al, C.P. 6128, Succ. centre-ville, Montrdal, Qc, H3C 3J7; Directeur, L'unit~ d'6thique clinique en
psychiatrie, Rdseau d'6thique clinique chez l'humain (FRSQ), Institut de recherches cliniques de Montr6al,
110, ave. des Pins Ouest, Montr6al, Qc, H 2 W 1R7, Canada.
~T. G. Gutheil, "'Ethical Issues in Sexual Misconduct by Clinicians" (1994) 48 The Japanese Journal of
Psychiatry and Neurology 39 at 40.
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of a violation of a fiduciary relationship. This notion, widely understood in the

continental traditions of jurisprudence, has more recently gained m o m e n t u m
as a h e a d of recovery in malpractice-type claims. In Anglo-Saxon commonlaw thinking, the fiduciary bond crystallizes a special duty of care owed to the
patient, based on the premise that there is a positive obligation on the part of
the practitioner to protect the subject and to avoid doing him or her any harm.
The assumption that consenting adults can vitiate such a fiduciary entitlement
on the part of the subject is refutable insofar as the presumption is made that,
where sexual relations occur, the bond itself is prima facie broken, because the
clinician is d e e m e d to have put self-interest above that of being a primary
caregiver. Sexual conduct between the parties viewed thusly is seen to strike
right at the heart of the fiduciary relationship.
Not unrelated to the fiduciary bond are a n u m b e r of considerations of
power imbalance, which relate to the asymmetrical dialectic between the parties. Clearly, the clinician's access to knowledge, technical training, and insight
into the patient's condition, creates in the majority of instances, a strong arm
into the interaction from the clinician's power perspective. Even though we
might submit that patient autonomy and willfulness is evident through exercising a manipulative authority in terms of desire or c o m m i t m e n t to recovery, to
speak of such power as being equivalent to the clinician's is far-fetched. Admittedly, patients reserve the power to leave therapy or take other courses of
action, including offensive maneuvers against the therapist, but such reactions
are in a small minority and are often stimulated by experiences of disorientation or helplessness.
This brings us to the recognition that most patients found in the mental
health system are in a distinctly vulnerable position via a v i s professionals.
Empirical profiles of the patient population, which has become implicated in
sexual interactions with therapists, reveal a disturbing propensity to reenact
situations of abuse in earlier life, reaching an almost chemical dimension of attraction to abusive exchanges. Persons who have suffered such traumatic occurrences often regard nonabusive relationships as inauthentic or lacking the
vitality associated with authenticity or reality. Clinicians entering such predisposed universes not only are equipped with unfair advantages due to the
power asymmetry, but also can easily manipulate patient vulnerability. The
p h e n o m e n o n of predisposition oftentimes can be triggered by a repetition
compulsion, the continued attempt to master the trauma through reenacting it
in various guises. In these circumstances, therapists and clinicians working in a
wide range of settings are in a control position that has a high risk of creating
damage with long-lasting results.
F r o m a psychoanalytical point of view, problems of transference infuse the
interactions in the mental health system between professionals and subjects.
Guarding against tendencies toward undue influence should be p a r a m o u n t in
any caring ethic upon which a professional code of conduct can be organized.
Attempts to structure cases of sexual misconduct around the central principle
of freedom of association cannot redress the overwhelming evidence that
there is limited freedom in the population groups that have been identified
with the problem. Recent studies in the United States, for example, have suggested a strong element of the borderline personality as the predominant pro-

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185

file in this arena? If this is so, clinicians must guard vigilantly against the occurrences of sexuality in the course of practice; the forewarning of therapists
should be a serious burden of general information in professional training,
given the results of a recent study indicating that, in over 70% of cases reviewed, the sexual misconduct was initiated by the patient. 3

Strategies for Dealing with Boundary Violations

Atkins and Stein have analyzed boundary violations in the more elaborate
context of calculating the reactions to the problem as part of the global assessm e n t of traumatization, including the actual experience of the legal modalities
of redress? In their view, professionals are often poorly equipped to handle
these problems because of their own restrictive professional orientations and
insensitivities towards dealing effectively and competently with these cases.
Given the emotional overlay present in these cases, these authors view it as an
imperative to instruct practitioners in how to control reactions both toward
professionals and clients.
Atkins and Stein present a multidisciplinary protocol designed to lead professionals through a series of steps in order to be effective in handling these
cases from their initiation to a point of resolution. W h e n clients appear for assistance, there is often a set of problems that have to be addressed with respect
to extant links with the therapist or the ambiguities regarding the hangover or
transitional aspects of the relationship. Because ambivalence can be not only
raw but volatile, mental health professionals and lawyers who encounter these
cases should be equipped in some way of how to field questions and neutralize
the earlier processes of reaction and discovery.
There are even state law requirements in the US mandatorily to require
mental health professionals to inform authorities of such relationships, once a
professional has become knowledgeable. A n u m b e r of states have evolved
strict and specific rules. Psychotherapists in California who gain information
about sexual contacts that have occurred in prior treatment have a positive obligation to give patients the state procedures delineating their rights and must
discuss the matter with the person. 5 In Minnesota, the law is so specific as to
require the therapist to report the name of the presumed previous violator and
to do so even against the protestations of the victim. 6 Such responses may appear highly aggressive to a E u r o p e a n readership, but are important references
to document the strength with which the legal apparatus has responded to the
problem in the US.
2See T. G. Gutheil, "Patients Involved in Sexual Misconduct: Is a Victim Profile Possible?" (1991) 21
Psychiatry Annals 661; T. G. Gutheil & G. O. Gabbard, "Obstacles to the Dynamic Understanding of Patient-Therapist Sexual Relations" (1992) 46 American Journal of Psychotherapy 515.
3K. Pope & J. C. Bouhoutsos, Sexual Intimacy Between Therapists and Patients (New York: Praeger
Publishers, 1988).
4E. L. Atkins & R. Stein, "When the Boundary is Crossed: A Protocol for Attorneys and Mental Health
Professionals" (1993) 14 American Journal of Forensic Psychiatry 51.
5Cal. Bus. and Prof. Code s. 728(a)
6Minn. Sta. Ann. 147 (West 1989): Minn. Stat. Ann. 148B (West 1989).

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The Issue of Privacy

One of the most important features of the process of exchange and resolution of these cases between professionals and patients/clients is the reality that
an effective response brings the patient into information disclosures that become part of the public domain. Therefore, professionals must be prepared to
describe in precise terms the process of discovery in civil cases, the possibility
of media exposure, and the tension between getting effective relief as a beneficiary of therapy and a positive outcome in a legal action. Because the two often must work in concert, the multiprofessional team concept is not only attractive but necessary. Since victims have often suffered a violation of private
space and breaches of trust, the multidisciplinary team should above all be
trained in mechanisms to avoid retraumatizing victims who, for lack of information, would otherwise be unaware of the inherent risks in bringing problems not only to the surface, but also to the surveillance of public review.

The Multiprofessional Dialogue

In a well-equipped team, a host of matters should be attended to, ranging
from properly informing clients about all the legal options to clarifying in what
prescribed roles therapeutic agents will function, whether as treaters, expert
witnesses, or both. To achieve a credible consent to the process, there should
be available a painstaking checklist of all the foreseeables, either from legal or
psychological points of view, that will constitute the experience in toto. The
foreseeable psychological damages must be revealed and calculated so that clients can emotionally prepare for the extensive and often draining attacks on
their person in the duration of legal procedures. In the United States, where
damages can be very substantial, there is also the issue of malingering or secondary gain, which should be recognized by practitioners.
As a process unfolds, the interaction between mental health professionals
and attorneys may become subtle, and present specific emotional risks and
possibilities of new ethical infractions. As Stein and Atkins point out:
Both the mental health practitioneer and the attorney must consult,
regularly, to assess the client's ability to withstand the risks and
stresses of the process. They must assist each other in continually
clarifying the client's goals, while being mindful that the client is ultimately the authority regarding the decision to continue treatment
and/or seek legal redress. 7
Ultimately, the goal for any of these difficult cases is closure; and that
means in concrete terms, that to the m a x i m u m extent possible, the client must
be fully appreciative of the available options and should be put in a position to
exercise an autonomous role about how and when to proceed, and above all,
when to terminate the procedure in the interest of some form of meaningful,
personal resolution. It is critical to understand that the interest of the client is
7Atkins & Stein, supra note 4 at 64-65.

SEXUALITY: PATIENTS AND PRACTITIONERS

187

not coterminous with the interests of assisting professionals. Finally, clients

must be prepared for disengagement from their professional consultants
themselves.

Specific Pitfalls
The following discussion is meant to alert professionals who encounter
boundary violation problems in practice by adding some clinical reference
points to five central elements that routinely present themselves in the encounter.

1. Consent and Litigation

The subject of informed consent is clear to clinicians by long exposure
through training and the literature. 8 Because attorneys may become involved
with the subject (e.g., in a malpractice claim alleging failure to obtain informed consent), many clinicians assume that attorneys practice informed
consent themselves; that is, that they routinely inform their clients about all
relevant data and obtain consent for the legal actions planned. Consultative
experience reveals that this is both true and false; while most good attorneys
prepare their clients for the legal options available, only a smaller subset prepare their clients for the emotional issues that may arise in the course of litigation about patient-therapist boundary violations--emotional issues that may
powerfully affect patients' decision making.
An area sometimes omitted by even conscientious attorneys is the fact that
suing a health professional may constitute a waiver of privilege. 9 This means
that, in practical terms, all records may come into the case (subject to various
legal constraints, of course). This may have significant impact.
A patient sought therapy for a dissociative disorder from a therapist
who committed multiple sexual and nonsexual boundary violations.
When asked how she tolerated the humiliation of having long segments of her deeply personal case record read at trial (with reporters in the audience), she reported that she would dissociate most of
the d a y - - h e r original symptom.
The above vignette also captures a second element of such litigation: retraumatization. Not all attorneys grasp how each interrogatory, deposition, or
other contact may retraumatize the patient in a manner as damaging as the
original deviations.
Litigation is about money, but not uncommonly that is not what (or not all
that) a patient wants; the patient must be realistically informed. Patients suing
therapists in this context often entertain elaborate fantasies about what will
~See P. S. Appelbaum & T. G. Gutheil, Clinical Handbook of Psychiatry and the Law (Baltimore: Williams & Wilkins, 1991); P. S. Appelbaum, C. W. Lidz & A. Meisel, lnJ~rmed Consent: Legal Theo O, and
Clinical Practice (New York: Oxford University Press, 1987).
9See Appelbaum & Gutheil (1991), ibid.

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happen to or be done to the defendant therapist, including impact on marriage, career, retributive consequences, and the like. Hence, even a large
award or settlement may leave the patient fundamentally dissatisfied.
Finally, for a whole universe of reasons, even a robust case may be lost. Being in the right does not guarantee a win, and patients are in need of preparation for this eventuality.
In sum, "informed consent" to litigation ideally involves psychological
preparation for suspension of privilege, retraumatization, fantasies about the
outcome, and possible loss of the case. Subsequent treaters must be ready to
address these issues and remain available to the patient during the litigation to
explore and support these important areas. Assuming these issues have all
been "covered" by the attorney is a chancy course. With the patient's permission, discussion of these areas with the attorney in advance may be helpful to
all parties.

2. Critogenic Harms
The term critogenic, a coinage of the Program in Psychiatry and the Law at
the Massachusetts Mental Health Center, 1 describes those emotional harms
that eventuate from even the correct operation of the legal system; the analogy is with iatrogenic, with krites (Greek) for judge instead of iatros, physician.
In the present context the critogenic harms include: delay, where the prolonged legal process often arrests therapeutic development; the exposure that
follows discovery (a term used to describe pretrial investigation including deposition, affidavits, and the like), where any areas not directly related to the
case may come to unwelcome light; the pressure to "remain compensably
harmed," serving as a resistance to therapeutic change; adversarialization, in
conflict, or at least tension, with the patient's more usual ambivalence about
the defendant therapist; and, as above, retraumatization by the stages of the
case.
Because these harms flow from processes intrinsic to the legal system, they
may be "invisible" to attorneys; for example, the attorney anticipates delay as
normal and does not adequately prepare the client for it. Here again the clinician may have to fill in the blanks for the patient.

3. Countertransference
The subsequent therapist faces a n u m b e r of countertransference issues in
treating a previously violated patient. First, the issue is "close to home," in
that the previous violations occurred with a m e m b e r of the subsequent therapist's profession. The new therapist, of course, may find his/her own ambivalence intensified around boundary issues in the new dyad; such issues may
include temptations to cross boundaries, reaction formations against even indicated boundary crossings, and so on.
A second problem is the internal pressure to report the previous therapist,
IH. Bursztajn, "More Law and Less Protection: "Critogenesis", "Legal Iatrogenesis" and Medical Decision-Making" (1985) 18 J. Geriat, Psychiatry 143.

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even if to do so is against the patient's wishes and against clinical judgment.

Here, the anxiety about the topic prompts a "quick fix" by reporting to
authorities, rather than by tolerating the anxiety as part of the therapeutic
burden.
Other countertransference feelings encountered in such cases, as Atkins
and Stein note, include "a variety of feelings, ranging from anger to compassion and concern to disbelief and suspicion, or perhaps identification with the
other professional.'11
The subsequent therapist should approach the countertransference problems in the customary manner, that is, with consultation, supervision or, ultimately, personal therapy to protect the patient's treatment from contamination with therapist issues.

4. Cessation Trauma
One aspect of boundary violation cases often poorly understood is the notion of cessation trauma, the emotional injury that strikes when the boundaryimpaired relationship ends or when another patient of the same therapist is
discovered to be in the same situation. 12 Recall that the patient's early experience of treatment may have involved "an intense and close personal relationship of several years' duration. The therapist might have become an important
beneficial force in the client's life, both practically and symbolically. ''~3 At that
point, the suspended emotional harms that have been submerged by feelings
of specialness and of being the "chosen one" collapse, 14 leaving pain, humiliation, rage, and depression in their wake. This situation can be likened to the
snapping of a stretched rubber band. While the band is being stretched, the
potential energy of the situation is not realized; when it snaps, the impact is
felt. This paradigm may be unclear to both attorney and subsequent treater, so
that the patient's distress is not addressed; moreover, there may remain the
problem of the treater's presenting this matter to a jury (as a fact witness in a
subsequent litigation) in a comprehensible way.
Treaters should be prepared to deal knowledgeably with this c o m m o n emotional response and may have to resist pressure to portray the previous relationship, tendentiously but speciously, as "all traumatic."

5. Claims That Are False

It is the province of the ultimate fact finder to decide whether the claims of
any plaintiff are true or false; the expert witness, moreover, must suspect malingering in every forensic evaluation. For the treater, however, an initial position of credulousness best fits the alliance. 15 Even so, every so often a case is
demonstrated to be false, even to the treater. Should this happen, the clinician
IIAtkins & Stein, supra note 4 at 55.
~2See Gutheil & Gabbard, supra note 2.
13Atkins & Stein, supra note 4 at 57.
]4See Gutheil (1991), supra note 2.
~SAppelbaum & Gutheil, supra note 8.

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should explore this matter in the usual manner, resisting feeling betrayed.
Treaters should recall that malingering is a legitimate subject for therapeutic
exploration to clarify the dynamic meaning of the patient's behaviour.
In sum, careful attention to the issues of consent, critogenic harms, countertransference, cessation trauma, and false claims will preserve the therapeutic
effect of subsequent treatment for the abused victim.