Psychoanalysts frequently serve as supervisors of individual psychotherapy and analysis at institutes, academic departments of psychiatry and privately. Indeed, the sophistication and empathy of psychoanalysts are among the chief reasons that they are specifically sought after as supervisors, even more so in an era of limited access to such mentors in treatment centers constrained by managed care, limited budgets, and biological reductionism.
But supervisors are increasingly becoming subject to legal liability in the performance of their work, as L. I. Sederer et al. pointed out in their 1998 “Guidelines for Presenting Psychiatrists in Consultative, Collaborative, and Supervisory Relationships.” This is true even for voluntary (i.e., unpaid) faculty, a category which includes many psychoanalysts who are primarily in private practice and contribute supervision at nearby academic departments and/or at their own institutes. As financial support for teaching functions decreases in departments of psychiatry (pressed by briefer hospital stays and sicker patients), more and more supervisory work is being shifted to voluntary faculty.
Unfortunately, as H.M. Schulte and colleagues found in 1997, most supervisors are wholly or partially unaware of the concomitant transfer of legal liability. In a study of Harvard Medical School claims from 1989 through 1998, M. Byington et al. found that claims against supervisors in all specialties trebled — and were three times more likely than all malpractice suits to result in a payment. Attending physicians were named as defendants in 53 percent of all cases. Obstetrics' and psychiatry's percentage of cases moved from 2 percent to 6 percent, tying them both with surgery for the fourth most frequent target (behind anesthesiology, at 9 percent, and emergency medicine and orthopedics, at 7 percent each). Although the risk supervisors face is real and increasing, it is not comparable to suits arising from boundary violations or serious adverse drug reactions.
I believe that if we psychoanalysts take a few moments to understand the legal basis of our supervisory liability, we can make modest and responsible adaptations that will reduce our risk.
First, supervisors must provide adequate supervision, i.e., they are liable when an injury results to a patient as a direct result of the supervisor's actions or lack thereof. It surprises many that the courts have held that the standard of care the trainee has provided is judged against that which the supervisor would have provided. This perspective is rooted in common law and, Schulte found, “provides the structure and legal rationale for an injured party to seek compensation from those who can most likely provide restitution and who are in a better position to anticipate danger and protect themselves.” Thus, a trainee's patients are entitled to the same level of care the supervisor would give. The exception is when the supervisor, in his or her training function, has acted to provide reasonable safeguards to identify shortcomings in the care and take remedial action.
Second, supervisors have vicarious liability under the legal theory of respondeat superior, which holds that “the master is responsible for the actions of his servant.” While three conditions must obtain for this to apply—the supervision must be voluntary, the trainee must act within the scope of the task, and the supervisor must be able to direct the supervisee — all of these have been deemed met in the psychotherapy-supervisee relationship.
In practice, appropriate selection and ongoing evaluation of the fitness of trainees (regarding competence, boundary violations, etc.) are generally sufficient to address issues of vicarious liability. Thus, providing adequate (i.e., non-negligent) supervision is the more important focus in limiting supervisory liability. James Hilliard made this point plain in a speech at the Massachusetts Psychiatric Society's risk management symposium earlier this year.
At McLean Hospital, the Committee on Psychotherapy Supervision — William Carter, Stephanie Engel, Dennis Kim, and members of the American Psychoanalytic Association Jonathan Kolb, Susan Pasternak, and Richard Schwartz — developed some preliminary constructive responses to the apprehensions (and anger) that arose in response to an emerging awareness of supervisory liability. Some of the suggestions made by Schulte et al. in their 1997 paper “Liability and Accountability in Psychotherapy Supervision” were central to the committee's planning. Other ideas came from contributors to the American's members' e-mail list ().
Supervisors need full disclosure of the existence and type and extent of risk they have assumed, without creating undue alarm and precipitating their withdrawal from the supervisory role. Supervisors need to be informed that they carry clinical authority in the cases they oversee and can elect to review charts, interview the patient, or direct changes in treatment, as opposed to merely making suggestions. A system is needed to keep supervisors “in the loop” regarding trainees' progress and difficulties (this includes regular reporting from the Residency Training Director or Education Committee and scheduled meetings of each trainee's group of supervisors).
Supervisors need easy-to-use forms to facilitate formal documentation of supervisory meetings. They also need back-up malpractice coverage by the hospital or medical school's carrier. Such coverage is justified by the assumption of direct clinical risk and would provide additional depth of insurance protections beyond supervisors' individual policies through the American.
Patients need informed consent that their treatments are supervised and discussed in a confidential teaching setting and — if they elect to know — who the supervisor is, under the American Hospital Association's Patients' Bill of Rights. Patients should be permitted to meet the supervisor, upon appropriate request.
Supervisees need to be oriented to the supervisory relationship, i.e., the authority and responsibility of the supervisor and the need to keep him/her informed of significant changes in the patient's treatment, even if this occurs between scheduled supervisory meetings. Supervisees also need regular discussion and feedback about how the supervision is going.
Many of us grew up in an era in which supervisors were educational consultants, shadow psychotherapists, role models, and/or mentors who were, to a greater or lesser degree, separate from the authority structure of the training institution. We felt safely shielded from medico-legal responsibility by the formal structure and tradition of psychoanalytic supervision in departments of psychiatry and at institutes. But the medical and legal climate has changed. A major and successful battle to create some status akin to the special psychotherapist-patient privilege would be required
Leonard L. Glass, M.D., is the director of the Attending Psychiatrists and Psychologists Program at McLean Hospital in Belmont, Mass. He is also a clinical assistant professor of psychiatry at Harvard Medical School and a member of the Boston Psychoanalytic Society and Institute. Complete information on studies cited in this article may be obtained from the author.
to reverse this. It is not likely to succeed, given the frequency of combined psychopharmacology and psychotherapy and the precedents in other medical specialties. Like it or not, supervisors are considered legally responsible for the care of the patients they oversee. As one attorney put it, if the trainee's answer on the witness stand to the question “Who did you turn to for guidance in this case?” is “The supervisor,” then the supervisor is “it.”
While the actual risk to supervisors is probably small, it exists and is growing. A relatively non-burdensome but thoughtful program to address this risk can reduce it (even if it cannot be entirely eliminated), and can allow supervisors to enhance the development of their trainees within the long and worthy tradition of psychoanalytic supervision.