Legal pitfalls in treating borderline personality disorder

By Garry Cooper, LCSW
January 15, 2014

Legal pitfalls in treating borderline personality disorderOne reason why many therapists are reluctant to treat people with borderline personality disorder (BPD) is fear of lawsuits. That fear has some foundation. The very dynamics that people with BPD bring into therapy, especially their emotional hypersensitivity and their tendency to shift from idealization to anger, can lead in two ways to lawsuits or complaints to licensing boards.

First, therapists’ real or perceived mistakes can set off a negative reaction out of proportion to the precipitating incident. Second, therapists working with BPD clients are highly prone to both extreme positive and negative countertransferences.

Concerning negative countertransference, studies of malpractice suits against physicians find that patients who perceive their physician as uncaring or uncommunicative are the most likely to file lawsuits. This dynamic may apply to therapists as well. It seems likely that therapists caught in the throes of negative countertransference are far less likely to seem warm and empathic.

Strong positive countertransference with BPD clients may also present considerable danger of lawsuits. Therapists who experience strong positive countertransference may find themselves trying too hard and promising too much. This kind of emotional overinvestment can not only cloud therapeutic judgment but it can, when the realities of therapy collide with the implicit or explicit promises, lead clients to feel betrayed, victims of false promises or hopes.

That kind of profound disappointment, especially with clients who are prone to idealization and feelings of betrayal, is a lawsuit waiting to happen.

But perhaps the greatest pitfall of positive countertransference is that it can lead to sexual boundary violations. Writing in the May, 1999 American Journal of Psychiatry, psychiatrist Thomas Gutheil notes that sexual contact with clients is, regrettably, not an uncommon phenomenon, and he suspects that it’s more likely to occur with BPD clients.

Quoting psychiatrist Alan Stone, he points out that in general “psychotic patients are not seen as attractive, and neurotic patients are clear enough to know better than to become sexually involved. Thus, the field may be left to patients with borderline personality disorder through a kind of diagnostic default.”

In a 2000 edition of Insights, a risk-management newsletter of the American Professional Agency insurance company, attorney and psychologist Bryant Welch, J.D., Ph.D., describes the risks and safeguards therapists should be aware of when working with BPD clients.

“For the borderline person,” he writes, “typically there has been a traumatic disturbance in the separation-individuation process of development, possibly a lost or abusive dependency relationship. To compensate, the borderline person fantasizes that finding the ‘perfect’ dependency relationship will end his or her suffering. Not surprisingly, disillusionment in key relationships almost always develops.”

Then the therapist enters the person’s life. Under enormous pressure to prove he or she “really cares,” writes Welch, the therapist is either going to cross boundaries and/or “withhold,” thus becoming a “bad object.” The grounds are fertile for rage and disappointment-triggered lawsuits.

Therapists are in a damned if you do, damned if you don’t situation. If they try to fulfill the clients’ needs, they enter into a “bottomless pit and facilitate regression by feeding the underlying fantasy that is untempered by reality.”

If they do anything less, they may enrage the client and the therapeutic alliance is threatened. “We often think of boundary violations and therapist misconduct as being malevolent in nature,” Welch writes. “But with a borderline patient a therapist can get into trouble by virtue of his or her wish to help and have a therapeutic effect.”

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