A fascinating discussion arose in a Facebook group I belong to recently, around the responsibilities owed by therapists and practitioners who work with traumatised people. I have completed courses in trauma-informed mediation but it is certainly not something I would claim to be an expert in, which led me to tune in to the issue from a legal perspective. When can you call yourself an expert? What does this mean, legally speaking? What legal issues should practitioners who work with trauma – and traumatised people – be aware of?
What is an expert, legally speaking?
First – there is the problem of being a self-proclaimed “expert”. For a start, claiming to be an expert in a particular field may have implications under Australian Consumer Law as misleading and deceptive advertising IF you don’t have appropriate qualifications. However, what is appropriate will be very industry specific. A fully qualified intuitive healer is different from a fully qualified psychotherapist is different from a fully qualified counsellor… whatever field you are in, you have a responsibility to ensure you are in compliance with all regulatory requirements BEFORE you commence practice. Note, however, that fully qualified does not mean expert. The word expert imports an extra implication of long experience and deep specialisation in a particular area. Competence would also be assumed.
In the absence of clear professional guidelines, what “expert” actually means in practice can be quite subjective. How much experience is enough? What does competence mean? Is a suite of courses leading to certification enough to specialise, or do you require sustained and focused study – and peer tested publication over many years? Different people are going to have different definitions, and unless you are standing up as an expert witness in court – or someone brings a claim of deceptive and misleading advertising against you – your claim of expertise is unlikely to be strenuously tested.
This means at a practical level (particularly in relation to less externally regulated practitioners – which is mainly what I am talking about), that adults have to expect a certain amount of hyperbole in advertising, and if someone claims expertise, you have some level of responsibility for your own safety. You need to protect yourself by asking questions and establishing proof of their claims to expertise – do your own research, find out what you should be looking for and choose carefully… or, if you have a higher tolerance for risk, rely on your intuition and sense of connection and trust for the person. Ask others in the profession what they consider to be indicia of good practice. Seek out advice from thoughtful and responsible professionals about what to look for – things like external regulation, reflective practice, doing the deep work on themselves, among many others… The point I want to make is that your CHOICE of an expert is likely to be just as subjective as the choice they have made in claiming to BE an expert. In both cases, the more thought and care that goes into making the choice, the more likely the relationship will proceed smoothly.
So where does certainty and clarity come in?
To a large extent, it doesn’t. Expertise can be a muddy, messy field where you play at your own risk, both as practitioner and client. Which brings us full circle to the scenario that started the initial Facebook post – the dilemma of treating a client who is unaware of their needs and the extent of their risk due to hidden, suppressed or repressed trauma. The first thing to emphasise from a legal perspective is what is called “the eggshell skull” principle. This effectively means that a practitioner takes a client – and is responsible for that client – as she finds her – with all her unique and individual problems. (To use an extreme example by way of illustration, if you punch someone in the face, expecting that at most they will suffer a black eye, and they have a medical condition that makes them susceptible to head trauma and fall over dead, you are legally responsible for causing their death, even though you could not have guessed that your action would result in that consequence.)
Similarly, if you hold yourself out as an expert on trauma – or even someone competent to treat trauma – and your client is re-traumatised as a result of your treatment, you may be held legally responsible even if neither of you knew that was likely to happen. When you are working with trauma it is foreseeable that it might happen, and that is enough. A responsible practitioner would have safeguards in place to (a) ensure their competency to handle any situation that arises, (b) have backup plans and emergency referral systems in place in case of unexpected problems, (c) test the suitability of treatment for the client before commencing, and (d) continually check in with the client during treatment and beyond to ensure no ill effects. (These are just generic recommendations – your particular responsibilities will depend on best practice in your specific field. If there is no established best practice, talk to experienced practitioners, people who you look up to for their expertise, and people with knowledge of risk management, to create – AND DOCUMENT – your own best practice processes – and then stick by them.)
The reason for all of this – beyond our desire to do no harm to the client – which is assumed – is that IF a client is triggered / retraumatised, they or their family may decide to sue you for negligence or professional negligence. That is why you have professional indemnity insurance, so that in this worst case scenario, someone has your back and you will be able to afford to either defend yourself or settle the matter. If you are holding yourself out as an expert and you haven’t considered all the issues above, you may well be in breach of your professional indemnity policy, which could leave you in a potentially nasty situation!
It’s not as terrifying as it sounds
I am not by any means trying to scare anyone! We are out there, doing our best to help people in difficult, muddy, messy places. If we care, we will take on that challenge of doing our best and considering seriously the responsibilities of our role. I count myself amongst you here, because simply by writing this blog post I am holding myself out as something of an expert on the topic… you could rely on my advice to your detriment and I could find myself knocking on my insurer’s door… which brings me to my final point – effectively the opposite to a claim to be an expert – the disclaimer. Disclaimers are essential for making sure your clients know exactly what your qualifications are, what you are offering to do for them, and the limits on what you can do! If you are working with trauma, your disclaimer should have something about the potential for someone to be retraumatised, explain what this means, make sure clients know they have the responsibility to let you know if things are going pear-shaped, outline your process for dealing with problems as they arise and set out your qualifications – and any limitation on them. This is where the clarity and certainty come in, because by giving them full information – and making sure they have read your disclaimer before you sign them on as a client, you are giving them the opportunity to give full and informed consent to your treatment, which is best practice in any industry.
How I can help
To state the obvious – this is generalised legal information about the topic under discussion. It is NOT legal advice about any specific situation. If you have any questions about your own potential liability and how to best protect yourself and your clients, get some legal advice – from an expert – or someone with appropriate qualifications whose opinion you trust. If you would like to talk to me, you can book a 30 minute free consultation.