The Inherent Medicolegal Issues for Therapists Treating the Borderline Patient

There exists inherent characteristics within the relational dynamic between the patient with BPD and the treater. Like no other patients can, those with BPD can mobilize intense feelings in those who treat them. It is not uncommon for lapses in sound clinical judgment to arise as a result of intense responses to such patients on the part of the treaters. There is no shortage of dreaded malpractice litigation against clinicians brought by disgruntled patients with BPD stemming from the patient’s ability to undermine treatment. In fact, Gutheil (1985, 1989) highlights the disproportionate percentage of lawsuits brought against therapists by BPD patients. There are four elements that comprise the legal definition of malpractice, they are: duty (it must be determined that the patient filing suit must be the clinician’s patient), negligence (the clinician breached or otherwise fell short of the standard of care expected of a reasonable practioner within the discipline), damages (physical, emotional, economic harm that result from improper care), and causation (improper care by the treater directly caused the patient harm). Wrongful death (suicide) is the most common malpractice complaint against mental health professionals. It is entirely common for patients with BPD threaten suicide and manipulate others with para-suicidal acts and ideation. This patient demographic is known by treaters to be impulsive, engage in self-harm, self-mutilation, and impulsively harm others. A therapist who lacks the crystal clear vision of 20-20 hindsight can be charged with “failure to commit.” In other words, the treater’s failure to act on the patient’s suicidal, self-mutilating or homicidal behavior led to the patient’s death and/or injury to another. Paradoxically, “false imprisonment” charges can be leveled against the therapist who places his or her patient on an involuntary hold in a psychiatric hospital. Typically, it is not as common to see malpractice result from a “5150” hold because such a therapist will most likely be able to easily demonstrate for a court of law his or her good faith effort for having gone this route. A therapist is not allowed to stop treating a patient who is the middle of a crisis. A treater can “pass the baton” to a hospital who receives the patient, but the clinician must make arrangements for the transference of care or offer either referral or alternative service. It is most effective if the patient and therapist can mutually agree upon the time and style of termination, however, so as to avoid the therapist being charged with “abandonment.” Since this patient demographic already suffers from abandonment issues it is not uncommon for the transference of care to be a most difficult time between both parties. A borderline patient whose emotional landscape is primed to spot the appearance of “abandonment” by those in a care-giving position may fare worse than other patient demographics whose time it is to discuss termination of care. Furthermore, the borderline’s particular sensitivity to rejection makes acting out behavior (like filing a lawsuit against the therapist) very likely at this juncture (Silver & Rosenbluth, 1992).