You Are One Borderline Away From Losing Your License*: Legal Pitfalls in Treating People With Borderline Personality Disorder

By Garry Cooper, LCSW

This page is part of an online course on Borderline Personality Disorder in Psychotherapy and Counseling.

 

One 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 all 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 come across as 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 the 2000 edition of Insights, a risk-management newsletter of the American Professional Agency insurance company, attorney and psychologist Bryant Welch describes the risks and safeguards therapists should be aware of when working with clients with BPD. “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 caught in a damned if you do, damned if you don’t situation. If they try to fulfill the client’s 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.”

Gutheil describes several psychodynamic characteristics of people with BPD that can lead to lawsuits.

Rage. Borderline rage is so intense that therapists often feel coerced into acting against their best therapeutic judgment. They may be afraid to set limits or boundaries. Alternatively, their reaction to clients’ rage may be to become too rigid. They may find themselves inappropriately self-disclosing in an attempt to soothe their clients’ anger. All of these reactions are more likely to reinforce clients’ rage rather than soothe it. The ironic outcome is not just a rage-triggered lawsuit, but a lawsuit with actual instances of inappropriate therapists’ actions.

Neediness and/or dependency. These dynamics can easily tap into therapists’ nurturant side, resulting, says Gutheil in “overinvolvement or overinvestment.” Therapists may find their rescuer fantasies triggered. Clients with BPD either overtly or implicitly plead with therapists not to abandon them as everyone else has done. Once therapists find themselves participating in rescuer fantasies, they end up participating in the clients’ impossible-to-realize rescue fantasy. The inevitable outcome: disappointment and betrayal.

Boundary confusion. Clients with BPD often lose sight of the boundary between themselves and others, especially important others like therapists. A therapist who offers consistent, clear boundaries provides an important learning structure. When a therapist is drawn into the fuzzy zone of unclear boundaries, writes Gutheil, “reciprocal perceptions of both the therapist and the patient may be powerfully influenced and distorted by the intense affects, longings and wishes common in patients with borderline personality disorder.”

Manipulativeness and Entitlement. Patients with BPD, writes Gutheil, “are capable of getting even experienced professionals to do what they should know better than to do or—all too commonly—what they do know better than to do.” The manipulativeness can be so ongoing, he says, that therapists who successfully avoid the first few attempts may lapse into overconfidence, let their guards down, and succumb to later attempts. Gutheil likens such therapists to alcoholics who pass by the first three bars and reward themselves by toasting their success at a fourth. Time and again, therapists who transgress boundaries have some faint awareness that they’ve done wrong. Therapists who transgress often preface their actions by saying things like, “While I don’t usually do things like this with my patients,” or “I really don’t think I should be doing this.” Those are vivid warning signs. In Gutheil’s psychodynamic view, “Some of the most destructive dyadic relationships may begin as a mutual admiration society, not recognized as an idealizing transference and its countertransference complement.” This combination is so powerful that as it gathers therapists in its grip may avoid seeking consultation.

Williams (2000) points out that people with BPD may be particularly prone to file seemingly credible complaints against therapists. These complains, he writes, may come because of a “very deteriorated therapeutic relationship based on the characteristic misperceptions and exaggerated emotional reactions common to people with personality disorders.” Just one example: a narcissistic client’s rage might be triggered by a therapist who interrupts a session to briefly screen a phone call or answer an urgent page. To paraphrase a well-known phrase, hell hath no fury like a narcissist scorned, and the rage may fuel an exaggerated tale of negligence. Compounding the difficulty, a person with BPD, coming from a position of intense emotional truth, genuinely believes the complaint, which makes it more credible. When vengeful, greedy or psychotic clients file false complaints, they’re more easily discovered during investigations or cross-examinations. But clients with BPD, Williams says, believe their own complaints so sincerely and earnestly than even a psychological assessment may not discover the truth. The issue often hinges upon the interpretation of a genuinely ambiguous situation. A therapist may give a warm, caring hug, which the client describes as aggressive, sexual, panic-inducing. And judges, juries and even panels of professional peers are more likely to grant credence to an emotionally intense and upset witness than to a cool, controlled professional. Williams gives several examples of relatively innocent or ambiguous situations that explode into legal action. . A therapist might make a reference to another anonymous client, and the client with BPD may surmise that the therapist is similarly discussing him or her with other clients. The result: a complaint of violation of confidentiality. One client mentioned to her therapist that she had virtually no sex life with her husband. The therapist inquired about some more specifics of her marital sex life, and she complained that the therapist had asked her “whether she was good in bed.”

Welch describes the most common slippery slope toward lawsuits that he has seen while representing therapists.

The therapist comes under a tremendous assault from the borderline patient, who constantly characterizes the therapist as being evil, as being bad, as withholding the palliative that the patient desperately needs, as being untrustworthy like all the other horrible people who truly did horrible things to the patient earlier in life. Most therapists have a deep need to feel that they are good people themselves. The desire to have a therapeutic, helpful influence on people is often what motivated their career choice to begin with, and it is difficult for anyone to be the object of hatred. So…one common reaction is for the therapist to be drawn into a defensive posture vis a vis the patient and become rigid and slightly punitive…Then the therapist has been drawn into the very role that the borderline patient has accused the therapist of, namely engaging in—for what someone who has observed the relationship midstream—seems like an assaultive set of behaviors. Now the therapist and patient are off and running in a downward spiral, a deteriorating relationship.

Welch notes that grievances and lawsuits filed by clients with BPD can be particularly difficult for therapists. Clients with BPD, once they are in the grips of emotion, are conflict-free, and so when they file a complaint, they exhibit certainty and calmness without a hint of ambivalence, which witnesses and judges find compelling. Therapists, says Welch, “can be judged and convicted even before they get a chance to explain the other side of the story.”

Gutheil provides several legal/clinical examples of therapists who have become embroiled in lawsuits with clients with BPD. He divides them into false cases—those in which the client later admitted the claim was false—and true cases—those which the therapist admitted to. By far, he says, the true cases outnumber the false. False cases are usually engendered “by borderline rage, expressed as vengeful action, coupled with a disregard for truth that is apparently self-justified by the strength of the affect.” The false accusations are often allegations of sexual relationships, fueled by rage triggered by bill collection practices, termination of therapy, or therapists’ “maltreatment.” These “maltreatments” are often the result of therapists who have crossed boundaries in relatively minor ways (compared to sexual activity) such as giving or receiving a small gift, recovered their senses and then refused a subsequent boundary crossing, thus triggering rage.

Boundary violations may be the most common cause of lawsuits. Gutheil provides a list of actual violations. Therapists have given patients medications which have been prescribed for the therapist; let clients in financial or housing crises stay at their guest houses or spare bedrooms (even though several of these therapists took great care to NOT intrude upon their patients’ privacy, the boundary blurrings were still egregious and led to lawsuits); upon returning from vacation offering clients who had been on a twice a week schedule to come in daily to compensate for the therapist’s vacation; made regular late night phone calls from his bedroom to a client while his wife was asleep—even though the calls were intended to calm the client, the situation, says Gutheil, was rife with erotic transference implications; and had a client who was editorially gifted assist in editing the therapist’s manuscript.

If all this sounds frightening and dissuades therapists from taking on clients with BPD, it needn’t be. Many therapists report great satisfaction (and success) from working with BPD clients, and of course the majority of people with BD do not sue their therapists. And as Welch points out, refusing to work with clients with BPD is “cruel and inhumane.”

Gutheil offers several solutions to help therapists avoid the legal pitfalls. Because the psychodynamic currents are so strong within borderline relationships, he suggests that even behavioral training programs include information on the psychodynamic allures and pitfalls inherent in working with BPD clients. Trainees should especially be warned, he says, that the impulse to make an exception with a client with BPD, “no matter how plausibly rationalized, is suspect and should set of red flags of caution. Anticipating by several years one of the fundamental principles of dialectical behavior therapy, Gutheil advises educating therapists of the necessity of placing some responsibility for finding solutions to reality-based problems on the client. This not only teaches clients to accept responsibility and gives them essential practice, but it helps therapists avoid falling into the rescuer fantasy trap. And of course, consult, consult, consult—especially whenever there’s a whiff, however faint, of eroticism.

Welch also has a checklist of suggestions to help therapists avoid legal difficulties. “Don’t allow yourselves to be pulled toward a boundary violation by your wish to help the patient,” he advises. Therapists should set limits early and discuss them in a straightforward, empathic manner. Seek periodic consultation with a colleague who is familiar with BPD. If you come under attack for being withholding or rigid, avoid the common trap of becoming cold, rigid and legalistic. Instead, be empathic and explain the purpose of the limits. If you anticipate trouble, do not fall into denial; instead, seek help early from a colleague, attorney or your malpractice insurance company. Consult, consult and . . . consult. Be proactive. It not only stops the downward spiral early, but it also helps to document your professionalism. This is especially important, Welch points out, because you should never assume that licensing boards or courts have a good understanding of the dynamics of BPD. Finally, once the relationship is terminated, do not become reinvolved. The well has become too poisoned.

 
References

Gutheil, TG (1989). “Borderline personality disorder, boundary violations and patient-therapist sex: medicolegal pitfalls,” American Journal of Psychiatry, 146 (5), 597-603

Welch, BL (2000). “Borderline patients: danger ahead” Insight 2, 1-7

Williams, MH (2000). “Victimized by victims:’ a taxonomy of antecedents of false complaints against psychotherapists,” Professional Psychology: Research and Practice, 31 (1), 75-81. Available online at: https://www.drmwilliams.com/SAdocs/victim.html.

* This title was attributed to a statement made by California attorney, Brant Caudill.