Memories, Abuse, and Malpractice
The Standard of Care
Mental health professionals who work with memory issues find
themselves in trouble when they:
- forget or ignore therapeutic, legal, or forensic basics;
- fail to follow appropriate informed consent procedures;
- do not take the time to appropriately document their treatment;
- engage in unproven or disproved approaches;
- practice outside their area of education, training, and experience; or
- utilize high risk practices.
While these issues concern all forms of clinical treatment,
using hypnosis, imagery, or suggestion involves an additional standard of care. Potential
legal implications confronted in memory related therapeutic practices are associated with
two related and interconnected scenarios. These issues focus on presentation and process
concerns.
Presentation Concerns
Therapists have a forensic duty when a client or patient
presents with declared or clear forensic implications. For example, the patient has been
or is
- involved in some legal action,
- being victimized, or
- a witness to a crime.
When there is the possibility of litigation involving the
patient, the professional must be concerned that the patient's ability to testify not be
compromised. Examples include professionals who:
[a] inappropriately use hypnosis with victims or witnesses to
crimes;
[b] imply or tell patients that their memories of past events
are always completely and historically accurate;
[c] tell patients that they should divorce their families;
[d] believe that they can tell who a perpetrator was; or
[e] inappropriately recommend litigation.
Process Concerns:
The professional must individually balance the process factors
by objectively evaluating the strengths, weaknesses, opportunities, and threats of each of
the following factors. The higher the risk, the higher the standard, and the higher the
expectation of the therapist's compliance.
Standard of Care
The standard of care requires that professionals must always
practice within one's licensure, education, training, experience, and the state of the
art. The standard includes the knowledge and practices of one's primary profession, the
field of clinical and experimental memory work, the diagnostic - assessment - treatment
process, and the alternative treatment methods related to the patient's condition.
Innovation in treatment is a part of the art and science of
professional practice. When new, complex, or unusual utilization’s are being
explored, the patient must be informed and consent to the experimental treatments.
Legal Requirements
The legal standard requires that a professional obtain an
informed consent from a patient or their guardian, before treatment commences. The patient
or guardian must have sufficient scientifically based, theoretically sound, and valid
information to appreciate the alternatives and the reality of potential risks. When a
professional fails to convey such information, the duty of care is violated. While the
clinician may decide that the treatment consent may be either written or verbal, the
record should document pre-procedure discussions on the nature of the proposed treatment,
the alternatives presented, potential and realistic risks, and possible complications.
The professional must also explain the potential consequences
of a refusal of treatment. If a patient refuses the recommended treatment, the discussion
of pertinent risks, which may occur, ought to be documented.
Zone of Comfort
The focus of the treatment should always be the patient, not
the technique. Clinicians should always assess the patient's entire system and attend to
the full range of the patient's clinical needs. The professional should not treat patients
with whom one cannot provide a non-judgmental, caring, neutral, objective, and productive
relationship.
With psychological issues, there must be a comprehensive
diagnostic work-up that includes a psychological - psychosocial assessment and data on
susceptibility. The professional should not prejudge the cause of the patient's
difficulties or the veracity of the patient's reports. The patient's developmental age,
career pattern, marital status, relationships with the opposite sex, and children must be
explored.
Memory Strategies
The use of hypnosis, imagery and suggestion in memory
refreshment may not be advisable, especially when one can not separate narrative from
historic truth or when there may be a significant impact. When working in such areas, the
professional must share with the patient the uncertainties associated with memories in
hypnosis.
When utilizing hypnosis, hypnotic strategies, imagery,
relaxation training or the like, it is imperative that the professional carefully weigh
the indications and contraindications of utilizing the strategy with the presenting
complaint and particular patient. Standard assessment, treatment, and recording process
must be followed.
The professional and legal implications of utilizing hypnosis
and related strategies with high-risk situations are the same whether the context is
investigative or therapeutic. The clinical and forensic impact of memory refreshment is
the same regardless of the aim, setting, or purpose. In most such legal situations,
therapists and patients do not enjoy immunity.
Recording
In routine practice, each professional must determine for him
or herself what level of documentation is needed. The decision must be based upon the
professional’s own sense of need and authority. There are some standard criteria that
ought to guide the decision.
There may be times when a written record is incomplete or
inaccurate. Simply stating that hypnosis was used may be insufficient. Depending on the
level of risk, the assessment, induction, suggestions, and outcome must be documented.
Documenting the session by the use of audio or video tape is
essential when the focus of the work involves any actual or potential litigant, defendant,
victim or witness of a tort or a "crime," or related memory work. The standards
of care in working with such high-risk areas are well documented. The entire session must
be taped from the initial meeting through the end. The videotape must show both the
subject and the professional. The equipment must be non-intrusive. One must acknowledge
that the taping itself may introduce some suggestive cues.
Victims and Witnesses
There are two sets of standards of care that must be followed
when hypnotically working with victims and witnesses. The first is the legal standard in
the jurisdiction of practice. These standards range from full exclusion similar to People
v. Shirley [1982]. A few states follow the guidelines established in State v. Hurd [1981]
and its prodigy State v. Fertig [1996]. The standards for working with defendants has been
set in Rock v. Arkansas [1987].
The minimal professional standards for hypnotically working
with patients who have been victims or witnesses have long been established. The standards
apply equally to clinical and forensic work, no matter what the procedure is called.
The use of hypnotically enhanced recall must be limited to the
investigative, not the testifying process. The subject may not later testify based upon
the hypnotically refreshed memories. A specialized informed consent must be obtained. The
subject's expectations, fantasies, and misconceptions regarding hypnosis must be explored
and documented.
A psychological assessment of the subject's state of mind must
be carried out prior to the induction of hypnosis. Standard susceptibility tests must be
administered to determine the subject's ability to respond to the approach
The sessions must usually be conducted by a licensed
psychiatrist or psychologist trained and skilled in the clinical and investigative uses of
hypnosis. The "interviewer" should always be independent of, not regularly
employed by, and not responsible to the prosecutor or investigators. The session must not
include more than the "hypnotist" and the subject. There are however, some
agencies that allow another professional to be present.
Before the induction of hypnosis or like approaches, the
professional should carefully obtain, from the subject, a detailed description of the
facts as the subject remembered them. Utmost care must be taken to explore the source of
the account, avoid contaminating the account, and the possible association of the account
with the hypnosis.
During the session, there must be at least one free and
unpressured narrative recall of the material with no questions about specifics. Nonleading
questions should always be employed. The subject must always be debriefed. The subject's
response to the termination of the session[s] and the approach must also be explored.
The purpose of the guidelines is to protect the patient or the
subject and the therapist while maintaining a sound basis to evaluate the data. The
guidelines apply to clinical and forensic professionals when they are working with
high-risk memory refreshment work that has possible forensic or legal implications. Saying
that "I was only doing treatment and the guidelines were not relevant" is
irresponsible and violates the standard of care.
Memories and Sex Abuse Issues
Many of the issues related to working with memory and sexual
abuse problems have been addressed by the American Medical Association and the American
Psychiatric Association. The essence of these reports and traditional therapeutic
literature provides the standard of care.
The function of the professional is to provide scientifically
based and clinically sound therapeutic intervention. The task is to help the patient
improve the quality of their life, not confirm the professional's expectations, see how
many personalities can be found, or voyeuristically experience stories of deviant sexual
accounts.
Being spellbound in the drama and wonder of the patient's
presentation does not help anyone. The professional should not jump to believe, express
disbelief, nor exert pressure to believe in events that may or may not have occurred. When
a professional abandons clinical distance and objectivity in favor of belief, he or she
commits an "assumption of belief error." The assumption error compounds,
legitimizes, and perpetuates the victimization.
The professional should not advise the patient that their
symptoms are indicative - not merely suggestive - of having been abused. Approaches that
suggest that the patient should be confronted, even when the patient denies having been
abused, violate the standard of care and sound clinical practice.
In following the guidelines and standards of care for working
with high-risk clients or patients, practice areas, or procedures, there is no real
conflict with the principles of sound professional judgment or practice. There are some
specialized requirements that must be followed when you are working with patients who
present with forensic and legal issues.
References:
American Medical Association (1985). Council report: Scientific
status of refreshing recollection by the use of hypnosis. Journal of the American Medical
Association, 253 (13), 1918 - 1923.
American Medical Association (1994). Council report: Memories
of childhood abuse. C.S.A. Report 5 - A - 94.
People v. Shirley, 31 Cal. 3d 18, 641 P.2d 775, 181 Cal. RPTR.
243 (1982).
Rock v. Arkansas, 483 US 44, 61 (1987)
State v. Fertig, A-19-95 (1996).
State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981).
