Shooting Yourself in the Foot with due Care: Psychotherapists and Crystallized Standards of Tort Liability

Abstract

This paper discusses a conceptual tension that arises from the attempt to regulate the fiduciary therapeutic relationship through the law of negligence. This tension becomes particularly problematic when courts adopt crystallized duties as per se rules or as presumptive standards of care for psychotherapists. Under certain conditions, this tension can undermine the therapeutic process, the fiduciary nature of the therapeutic relationship, and the process by which professional organizations promulgate guidelines for their members. Thus, under certain circumstances, regulation through negligence law may frustrate both therapeutic and legal purposes. This paper suggests steps that courts and professional organizations can take to minimize the insidious effects of this tension, but it does not contend that these steps will resolve all of the difficulties associated with tort regulation of psychotherapy.