The Minefield of Divorce Counseling

By Eric C. Marine
November 9, 2013



The Minefield of Divorce CounselingStatistics indicate that at least 50 percent of all marriages fail in the United States, creating a potential increase in the need for psychological services. The demand for psychologists is limited not only to post-divorce therapy but often includes couples counseling preceding the divorce.

Not to be forgotten are the minors of the marriage who may need assistance in coping with the changed circumstance. All forms of therapy surrounding a divorce create a high risk for the psychologist. Upon reviewing the various scenarios we will focus on the areas that must be considered as points of contention.

Couples counseling can be considered as the first step in this process. Remaining neutral is a key to being successful. There can be no secrets.

Pragmatically, it is important to consider the manner in which the session documentation is created and stored. The complete record cannot be released without the signed permission from all parties in counseling.

Frequently, one party or the other will recall an event or admission that occurred during a session and attempt to obtain confirmation without the proper permission.

Prior to 1996, a mistake in this sort of release of information was considered to be a mere breach of confidentiality. In recent years there have been legislative changes regarding the improper release of client’s information. Due to the implementation of HIPAA, the improper release of records is now a violation of federal law and subject to fines and penalties that can be substantial.

After a divorce is finalized, the risk still remains quite high. In far too many instances, the animosity between the former spouses does not dissipate. Therefore, it is imperative that the psychologist focus on the patient in providing care and support of needs. It is advisable to avoid active participation in the ongoing battles.

Quite often the practitioner may be approached by one of the parties who may request a letter or that you testify on behalf of the patient. This should be considered very seriously. All communication provided by the psychologist has the potential to open up the entire treatment process to public scrutiny. Once there is written correspondence or the psychologist provides some form of testimony, the therapeutic process may be undermined. Ultimately this may cause the patient to abandon therapy and the much needed care and support that he or she was receiving. Additionally, if the patient is unhappy with the outcome there may be a resulting state licensing board complaint or even a lawsuit.

It takes a special kind of person to want to participate in a custody evaluation. A cliché that proclaims “at least one out of the two people is not going to like the outcome and will try anything to have the decision overturned” is accurate.

Even qualified judicial immunity provided by acting under a court order cannot stop the state licensing authority from investigating a complaint. It is most likely that the review committee will not sanction you but the process is anxiety provoking, at a minimum.

It is of paramount importance to point out that there is inherent conflict in any custody evaluation. If the parents were able to agree and make a reasonable recommendation to the court in the best interest of the children and provide a semblance of normal parental involvement, there would be no need for an evaluation. The psychologist who steps into this conflict should not be surprised at becoming a target. The evaluator represents the end of the conflict and at least one of the parties is not going to like it.

In all probability most conflict will arise in a divorce when it concerns the treatment of the children. There are a myriad of potential legal and ethical issues that may arise including:

  • Who has the authority to authorize the treatment? Does one parent have sole authority or is it necessary to have both parents consent?
  • How much confidentiality can you legally promise the minor? What happens when a parent requests to view the record?
  • What is the purpose of the therapy? What goals are attainable and how much participation from parents is required?

Let’s just look at these examples. It is the therapists’ responsibility to determine if there is appropriate permission to provide treatment. In cases of divorce, there are orders issued by the court that spell out the parental rights and duties. It is of utmost importance to have a copy of those orders in your file. It has been proved time and again that not all parents are forthcoming and tell the truth.

Confidentiality is important but you cannot contract for care with a minor. Promise the patient you will do all that you can to preserve their privacy, however; be sure that the minor understands that you may not be able to stop the parents from accessing the record.

Be realistic in setting goals. Make sure all parties agree on what is to be accomplished and that everyone sticks to the plan. Remember, you are unable to provide effective treatment if the client will not allow you to or provides substantial resistance.

This is a brief and not at all comprehensive look at the treatment surrounding a divorce. The greatest number of claims and complaints that are submitted arise from the aforementioned situations. Entire books have and will be written pointing out in detail all the risks associated with this patient base. They will cause you grief if you don’t pay attention.

Eric C. Marine is vice president of claims and risk management for the American Professional Agency Inc. He has decades of experience in claims handling and the provision of risk management services for all professions in the mental health field. His email is: emarine@americanprofessional.com.
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