While in treatment for anorexia nervosa, Margaret Harris held hands with her psychiatrist, Dr. Edward Leader. Harris explained: "I would sit here and I would take his hand and I would hold it, and I would massage it, and I would rub it. And then finally I would give him a kiss on the hand..." Harris also said that she often sat next to Leader's chair with her arms around his legs and that they hugged at the end of their sessions.
"I couldn't live without him," she said. "He was part of my very soul and existence." Harris told Leader that she loved him, and Leader replied that he loved her too.
After Harris' fourth attempt at suicide, Leader arranged for a telephone treatment session. During the session, Harris asked Leader if he had sexual fantasies about her. According to Harris, he replied, "I do have sexual fantasies about you, but I don't act upon them."
Harris later sued Leader for battery, malpractice and intentional infliction of emotional distress.
The trial court entered a directed verdict in favor of Leader on both claims. Harris appealed.
Holding: Neither battery nor intentional infliction of emotional distress existed. The court found that it was Harris, not Leader, who initiated the physical contact on all but one occasion. The unlawful touching required for battery does not exist where the person affected consents to such touching. The court also held that the requirements for intentional infliction of emotional distress, including severe outrageous conduct, were not present. Leader's conduct did not rise to a level of egregiousness that would lead a reasonable person to exclaim "outrageous!" Rather, the court gave considerable weight to Leader's "humanistic" and "self-disclosure" approach to counseling. The court acknowledged the existence of different schools of therapy and stated: 'Though Leader's disclosure to Harris that he had sexual fantasies for her may be facially troublesome to the average layman ... it is not such a statement that would rise to the level of outrageous.'
| Robert Sadoff, M.D. Professor of Forensic Psychiatry University of Pennsylvania |
Dr. Sadoff comments: This is a very troublesome case from the standpoint of psychotherapy with a borderline personality disordered patient. It is understandable to allow a patient to hug or to be hugged in order to "hold the patient together" if the patient is "falling apart" psychologically. However, a therapist in treating borderline patients who require recognized boundaries must not allow these boundaries to be eroded. Perhaps it is coldhearted or unhumanitarian to set rigid boundaries with patients, but many with the borderline personality disorder will constantly "push the envelope" and attempt to foster inappropriate closeness with therapists. It is therefore therapeutic for the doctor to set the boundaries and to refuse to allow the patient (or the doctor) to deviate. By doing so, the patient intrudes on the privacy of the therapist and interferes with the effectiveness of therapy. It may appear helpful in the short run, but my experience in treating borderlines is that they ultimately resent the boundary crossings and appreciate firm, consistent boundaries that are set by their therapists over a long period of time.
It is not always inappropriate to touch, non-sexually, a patient of the opposite sex, especially when the touching is consensual and warranted and not repetitive. However, having the patient in a diminished role, sitting at the feet of the therapist hugging his legs, does not promote treatment goals of growth and equality.
"It is not always inappropriate to touch, non-sexually, a patient of the opposite sex, especially when the touching is consensual and warranted and not repetitive. However, having the patient in a diminished role, sitting at the feet of the therapist, hugging his legs, does not promote treatment goals of growth and equality. . . ."
The issue of self-disclosure is also a difficult one. A humanistic therapist may indicate to a patient that he has had similar feelings and handled them in a particular way that could serve as a model for the patient. But why respond to the seductive question about whether the therapist has sexual fantasies about the patient? The doctor should not lie; neither should he stir up unrealistic feelings or expectations. If the therapist was setting a model by which the patient could learn by admitting to sexual fantasies that would not be acted on, this would still be a boundary crossing and too seductive to a borderline patient. After all, the borderline patient does distort comments and concepts and may perceive the therapist's response to be an invitation to sexual activity.
It is well known that the borderline patient is the one that most often sues her male therapist for boundary violations. Commonly, the therapist was seduced into such behavior by an attractive, aggressive patient. The borderline patient is also the more likely to accuse an innocent therapist of such boundary violations when they never occurred.
Thus, therapists who recognize that the patient has a borderline personality disorder should be extremely careful not to allow any boundary crossings or self-disclosures that may be misinterpreted by the patient. What I have learned in defending psychiatrists who have been sued by their borderline patients for sexual behavior is that the psychiatrist whether he engaged in such behavior or not will usually tell me that he did not recognize during the treatment that the patient had a borderline condition or he would not have treated the patient as he did. These male therapists indicated that they would have set more rigid boundaries had they recognized the pathology from the beginning.
| Ralph Slovenko Professor of Law and Psychiatry Wayne State University |
Professor Slovenko comments: As the court noted, in the relationship of doctor and patient as in other situations involving a touching of another's person, consent to the act by the person affected negates the contact as an actionable tort. Of course, for a valid consent there must be competency. However, even conduct between consenting parties who are competent may be regarded as so detrimental to themselves, to others, or to the general welfare as to justify punishing those who engage in it. At one time one could not validly consent to an abortion or a transsexual operation and arguably today, assisted suicide.
In past years a therapist in a gesture of empathy might put his hand on the shoulder of a depressed, weeping mother who had recently lost her son. However, in today's litigious climate he shrinks from doing so, fearing, as one therapist stated, "the witch hunt against consciously or unconsciously experienced sexual intent toward an innocent patient".
One of the consequences of the current climate is that depersonalization has taken place between therapists and patients. Therapists sit defensively behind their desks, careful not to spontaneously smile, conduct themselves in a very prim and proper matter, and dispense their psychotherapeutic or medication products to "consumers."
What about the claim by Harris of malpractice, or negligent infliction of mental distress? According to Harris, despite Leader's knowledge of her pathological attachment his conduct often fostered her infatuation, They talked about sexual fantasies and she confronted him about it to which he replied: "I can't deny it. I do have sexual fantasies about you, but I don't act upon them." Harris testified, "That shocked me."
ECHOLINGO
The barrier of conduct and relatedness that separates doctor and his role as treater from the patient in his care.
Sexual boundary violations have received considerable attention in recent years and are widely acknowledged as damaging to doctor-patient relationships. What else is considered a boundary violation? It is a complex issue that challenges the treatment decisions of all therapists.
In this case Leader presented expert testimony showing that a therapist's self-disclosure, such as the statement at issue in the case, is important in therapy. Specifically, the expert testified that "there are many different schools of therapy. There is no one standard that every one adheres to. In the humanistic approach, self-disclosure is considered very important."
In determining standard of care, the courts take into account the various schools of therapy within the fields. Hence, a therapist is entitled to be judged according to his school and mode of therapy, as long as the school is a recognized school of good standing, which has established rules and principles of practice for the guidance of its members. A practitioner adhering to a unique theoretical framework would not constitute a school, as in the case of "direct therapy" where the therapist strikes patients.
Stirred by the controversy over the "revival of memory" of early child sexual abuses by parents or others, a number of states are reexamining their laws in regard to therapeutic practices and informed consent.
A universally acceptable definition of appropriate treatment is elusive. Successful psychotherapy requires a delicate balance of professional restraint and emotional intimacy between patient and therapist within the parameters of the therapeutic relationship. Those who feel aggrieved by the mode of therapy might be better served by appeal to a medical board than to a court.
