Professional misconduct charges against a group of South African psychologists: an investigation of experiences, coping and meaning making

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Professional misconduct charges against a

group of South African psychologists:

An investigation of experiences, coping and

meaning making

H Kirkcaldy

orcid.org/0000-0001-9797-2655

Thesis accepted in fulfilment of the requirements for the

degree Doctor of Philosophy in Psychology at the

North-West University

Promoter:

Prof E van Rensburg

Co-Promoter:

Prof JC du Plooy

Graduation: May 2020

Student number: 28069358

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ACKNOWLEDGEMENTS

I want to express my heartfelt appreciation and gratitude to the following people who have accompanied and guided me on this journey:

Prof Esmé van Rensburg, supervisor: For her infinite wisdom, insight, patience, and humour. Never did I feel fear – only joy and inspiration. Every student deserves someone like you. Prof Kobus du Plooy, co-supervisor: For his encouragement, detailed guidance, and always reliable presence.

Dr Liana Kruger, colleague and friend: For her reflections, advice, and her willingness to act as an official mediator for the consent process.

My husband, David Kirkcaldy: For his unconditional support, his consistent presence, and his comforting company on every road-trip and to every meeting. You have always encouraged my interests and are a trustworthy and patient companion on all my adventures. Once one has found a true partner, one is never alone again.

My son, Garth Kirkcaldy, who had his own academic journey during this time. Thank you for burning the midnight oil with me and for the entertaining study breaks we shared. I am so proud of the man you are becoming.

To Sheridon Firstbrook, who understands the pressure of academic endeavours in personalities like ours – I enjoyed our talks and admire your resilience and compassionate nature.

To my parents and my extended family, for their constant interest and encouragement.

To my colleagues at the Student Counselling Unit of the University of Pretoria, for their moral support.

To Dr Althéa Kotze, for her expert editorial inputs, but equally important, for her emotional containment and encouragement.

To Mrs Deidré Duvenage, for the typesetting of all the documents and for her technical knowledge. To the North-West University, for granting a postgraduate bursary during two years of the study. And finally, to the courageous participants in this study: I am in awe of the intelligence, insight, and courage you displayed under trying circumstances and that you were prepared to share it with me. We are blessed to have professionals of your calibre in this country, and I hope that your wisdom and vision will be appreciated by all who read this work.

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STATEMENT

The study is presented according to the article format. Four articles are incorporated in Section 2. The student is the first author for each article, while the principal supervisor and co-supervisor are the second and third authors respectively.

The articles have been submitted to the following journals: Article 1: South African Journal of Psychology Article 2: Journal of Psychology in Africa Article 3: Journal of Positive Psychology Article 4: Health SA Gesondheid

A copy of the guidelines for authors for the relevant journals has been inserted before each article in Section 2.

The co-authors have granted their permission that the student may submit the articles for purposes of graduation.

A notification that the articles have been submitted for graduation purposes have been included to the editors of the abovementioned journals.

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ABSTRACT

This study examined the experience, coping, and meaning making of a group of South African psychologists who received a professional misconduct complaint. Ten psychologists who experienced a malpractice complaint during their careers were recruited into the study. The study used a qualitative research approach and a phenomenological design to explore and understand the research problem. Data was collected through semistructured, in-depth interviews that were audio-recorded and manually transcribed. The data was analysed using interpretative phenomenological analysis (IPA).

The results indicated that the psychologists experienced the effects of a complaint on an intensely personal level. They experienced emotional, physical, and practical consequences in the wake of a complaint; some of which endured long after the complaint was concluded. They furthermore experienced a challenge to their identity and their self-confidence. The experience of a complaint highlighted the problematic nature of working in the modern health care arena, in that the psychologists recognised that their clients could become complainants and that ethical deliberation is complex and ambiguous. The results of this study furthermore revealed that this group of psychologists experienced challenges in the procedures and complaint processes at the regulator as well as being uncertain about their relationship with the regulator when managing a malpractice complaint.

The psychologists in this study coped with a complaint by implementing personal and professional coping strategies. On a personal level they sought out support structures; developed other interests and roles; drew on existing personal strengths and attributes; and reappraised the complaint through faith and humour. To cope professionally, the participants did research and undertook studies; purposefully shared their experiences; responded to the complaint and continued to work; and accepted the inherent risks of psychological practice.

The results showed that the participants in this study derived meaning from the adverse professional event. They experienced personal growth; made meaningful changes to practical aspects of their work; and indicated that the meaning of the complaint contributed to their meaning in life.

Recommendations are made concerning support for practitioners experiencing a malpractice complaint, pro-active coping with psychological practice in a modern health care arena, and on

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making meaning from adverse events during a professional career. A review of the relationship with the regulator during a malpractice complaint is proposed.

Key terms: coping; ethics; qualitative research; malpractice; meaning making; professional

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LIST OF TABLES

Table 1: A summary of the themes and subthemes relating to the personal experiences of a group of psychologists who experienced a professional malpractice complaint ... 109

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LIST OF FIGURES

Figure 1: Model to understand the management spheres of a professional malpractice

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SECTION 1: LITERATURE REVIEW AND

CONTEXTUALISATION OF THE PROBLEM

1.1 Introduction

Professional health care practitioners are expected to manage clinical challenges and ethical dilemmas regularly. What practitioners may find more difficult is to cope when a professional misconduct complaint is lodged against them, as the threat of disciplinary action or legal procedures ushers in a dimension in the career of a health care practitioner that may be fraught with difficulty and uncertainty.

Complaints and litigation, particularly against medical practitioners in South Africa, have been on the rise in the last decade with both the value and number of medical malpractice claims increasing (Human, 2015; Pepper & Nöthling Slabbert, 2011; Malherbe, 2013). The South African Minister of Health warned that South Africa may face a shortage of certain medical practitioners such as obstetricians and gynaecologists in the decade to come if excessive malpractice claims are not restricted (Bendile, 2015; Howarth & Carstens, 2014; Malherbe, 2013). The extreme cost of medical insurance to guard against these claims, the extended period of claims and court cases, and the general adverse practice environment make it undesirable for many practitioners to continue practising, leaving them with a sense of vulnerability and fear (Pienaar, 2016; Howarth & Carstens, 2014)

The experience of being charged with ethical misconduct by a client and complained against at the regulator, namely the Health Professions Council of South Africa (HPCSA), may have a detrimental personal and professional effect on practitioners, including mental health practitioners. This is as addressing a complaint demands time and money; may harm health, reputation, and self-esteem; and the practitioner may question the meaning of and reasons for continuing to practice in such a challenging health care environment (Woody, 2009). According to Allan (2001), being accused of professional misconduct has “negative emotional consequences that not only impact on the therapist’s personal life but are also likely to influence his or her personal effectiveness” (p. 68).

Many practitioners have reacted to the aforementioned increase in malpractice complaints by using a type of defensive practice approach as the new norm (Moore & Nöthling Slabbert, 2013). This

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may entail requesting more special investigations, ordering more tests, or requesting more visits to consultants than would be strictly necessary (positive defensive practice); or they may opt to change their field of practice, decline to specialize in certain areas, and avoid “high-risk” patients (negative defensive practice) (Catino, 2009). These practices are attempts to protect against the possibility of receiving complaints, but are eventually more costly to the consumer and has an impact on the delivery and availability of services (Bendile, 2015; Catino, 2009; Fileni et al., 2007; Howarth, Brown, & Whitehouse, 2013; Human, 2015; O’Reilly, 2018).

Calls for reforms to address alternative legal and malpractice procedures to discourage an exodus of health care professionals and the increase in medical costs are broadly considered (Mehlman, 2006; Medical Protection Society, 2015; Malherbe, 2013; Pepper & Nöthling Slabbert, 2011). Mediation practices attempt to avoid litigation while still addressing clients’ concerns, rights, and need for vindication (Benesch, 2011; Medical Protection Society, 2015; Perlin, 2014). In professions where outcomes cannot be controlled optimally, the timeous disclosure and management of errors and adverse events by practitioners are considered a component of quality health care and a move away from the stigma associated with unforeseen errors (Mendonca, Gallagher, & De Oliveira, 2019). There are indications that formal apologies, apology laws associated with medical malpractice, and restorative actions may expedite the resolution of claims processes, limit the average payment size, and reduce the settlement time (Ho & Liu, 2011). The following sections will highlight the literature that was deemed of importance and relevant to the present study.

1.2 Literature Study

1.2.1 Explication of concepts: Practitioners, clients, and complaints

In the interest of clarity, the terms and concepts “being charged”, “being complained against”, or “being sued” are used interchangeably throughout this thesis. In this study, these expressions will refer to a charge laid at the HPCSA based on the real or perceived breach of an ethical principle. It can also refer to being on the receiving end of a civil lawsuit. According to Shapiro and Smith (2011), malpractice means “liability arising out of professional practice” (p. 11). In South Africa, the term professional misconduct is, however, more common; and unprofessional conduct, criminal behaviour, and civil wrongs (or delictual claims) are all forms of professional misconduct (Allan, 2001). “Professional malpractice”, “professional misconduct” or “professional negligence” are also referred to interchangeably in this study, depending on the literature under review. For the

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aims of this study, the outcome of the charge or the complaint is not differentiated, except where specified: whether the charge went ahead to an official disciplinary hearing or whether it remained a complaint dismissed at the preliminary stages of enquiry, are referred to similarly. Finally, the terms “patient” and “client” are used interchangeably, as the literature review on this topic included a variety of health practitioners, including psychologists and medical practitioners. Following this clarification of concepts, the following section will contextualise the study further by describing how health care professionals, including psychologists, are regulated in South Africa.

1.2.2 The regulation of the profession

To belong to a professional group is a privilege. Historically professional organisations – guilds – controlled access into specialised fields, regulated training and apprenticeships and set standards of quality (Allan, 2001). The same quality control and professional standards are set for modern professions. Psychology as a profession is required to “set knowledge, performance, training, supervision and professional conduct standards for members and monitor the adherence to these standards” (Allan, 2016, p. 31). To prove misconduct, there must be an “intentional or negligent, wrongful act or an omission” (Allan, 2001, p. 67) on the part of the health care professional. Patients or their family members can institute a civil claim against the health care practitioner, may file criminal charges, and lay a complaint at the HPCSA – the official regulator for all registered health care practitioners (Pienaar, 2016).

The role of a professional regulator is crucial for several reasons. In its mission statement, the HPCSA undertakes to set health care standards for the training and practice of professionals; to foster compliance with these standards; to ensure ongoing professional competence; and to protect the public by becoming involved in matters relating to the rendering of health services by professionals registered with the Council (HPCSA, 2019a). The HPCSA has a mandate to fulfil this regulatory role under the Health Professions (Health Professions Act, 56/1974). Regulators such as the HPCSA, therefore operate with the authority of the state; have investigative powers and can severely restrict a practitioner, including a psychologist’s ability to practice if found guilty of professional misconduct (Allan, 2016). Professions are not only regulated to retain professional standards and to uphold the public image and trust in the profession but also to protect the public against unscrupulous and unethical practitioners. It, therefore, performs a significant and necessary role within South African society.

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If a professional who is registered at the HPCSA, therefore, transgresses the professional code of ethical conduct or any rule about their specific professional board, the HPCSA has the power to institute disciplinary proceedings against the practitioner. A statement on the HPCSA website therefore affirms that it “provides the public with the right to file and request an investigation of practitioners, whom they believe have acted unethically or caused harm” (HPCSA, 2019b). The process of lodging a complaint against a practitioner is described in the Health Professions Act and is accordingly followed on the HPCSA website.

In short, the process requires the complainant to lodge a complaint in writing to the Registrar of the HPCSA. The relevant professional board has the power and obligation to investigate the complaint. The Registrar forwards all the relevant documentation surrounding the complaint to the practitioner to respond to within 40 working days. Minor transgressions can be referred to the ombudsman for mediation. If necessary, the practitioner, together with his or her legal representative, can be summoned to appear before a preliminary committee of inquiry. If the explanation to the complaint does not satisfy the committee of preliminary inquiry, they may determine whether there are any grounds to proceed with a professional conduct inquiry (Health Professions Act, 56/74; HPCSA 2019b).

Psychologists are not immune to malpractice complaints, whether the state employs them, are in private practice or work in large organisations or institutions. According to Smith and Shapiro (2011), even though malpractice complaints against psychologists are infrequent compared to those against members of the medical professions, the numbers have an increase in recent years. This will be described in more depth in the following section. Furthermore, psychological practice has certain practice areas that may be riskier than others. Service provision can suffer as practitioners may begin to avoid certain practice areas, such as psychotherapy with clients where the mental or diagnostic state puts them at inherent risk for suicide, homicide or impulsive behaviour; neuropsychological assessments for court cases in third party injury claims; psycho-legal work with children and families such as during custody evaluations; or forensic work during assessments for criminal procedures. To work with suicidal clients, for example, is anxiety-provoking and difficult for most mental health professionals (Harned, Lungu, Wilks, & Linehan, 2016). Besides it being the leading cause of legal action against mental health professionals across various disciplines, professionals are often not adequately trained in evaluating and managing suicidal risk (Harned et al., 2016). Furthermore, the life and death nature of the work means that a great deal is at stake for both the client and the professional (Harned et al., 2016). Practices where the outcome cannot be entirely controlled or predicted and where there may be room for difference

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of opinion and interpretation, for example, the aforementioned psycho-legal or forensic evaluations, could be at particular risk for complaints and litigation. If practitioners shun these procedures because of litigation fears, it may lead to non-service of clients in need, a weakening of practice standards and an exit of experienced professionals in these fields.

1.2.3 Complaints against psychologists

Relating to the profession of psychology in South Africa, an overview of ethical complaints and disciplinary actions against psychologists covering the years 1990-1999 found that annually 1.2% of psychologists had complaints lodged against them and 0.2% of psychologists were subjected to disciplinary actions. Of these disciplinary inquiries, 61.2% endured for two to four, or even more years (Scherrer, Louw, & Möller, 2002). That timeframe suggests a significant impact on the time, life, and career of the affected practitioner.

In a period following the abovementioned study by Sherrer and colleagues, Nortjé and Hoffmann (2016) found that in the period 2007 to 2013, a total of 49 psychologists were sanctioned by the HPCSA, with a total number of 60 transgressions. This implies that a percentage mean of 0.46% of psychologists was found guilty and sanctioned over that period (Nortjé & Hoffmann, 2016, p. 49). Further data presented by the same authors indicate an increase in the average percentage of sanctioned psychologists from 0.07% in 2007 to 0.12% in 2013 (Nortjé & Hoffmann, 2015, p. 264). Of the twelve professional boards registered at the HPCSA reviewed in their study, psychology was the fourth most sanctioned profession, and the Board of Psychology was second to only the extensive Medical and Dental Board when it came to the percentage of transgressions (Hoffmann, 2016). Psychologists transgressed mostly in the category of improper professional role conduct (36.7%), followed by fraudulent conduct and negligence or incompetence (both at 23.3%) (Nortjé & Hoffmann, 2016, p. 51).

Improper professional role conduct was described as having a sexual relationship with a patient, or inappropriately intimate relationships with patients or former patients, having a conflict of interest such as acting as a mediator in a custody case and then also acting as an expert witness in the same case, practising outside the scope of practice; and making rude, demeaning or insulting remarks towards a patient (Nortjé & Hoffmann, 2015, p. 265). Negligence and incompetence among psychologists were mostly related to the inadequate examination or interviewing of clients, or the use of incorrect assessment instruments, leading to inaccurate or incomplete reports and recommendations (Nortjé & Hoffmann, 2015). Fraudulent conduct, by example, implied

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compiling a report without consulting all the parties concerned (Nortjé & Hoffmann, 2015, p. 265). Most transgressions earned the psychologist a financial penalty or fine, but removal from the HPCSA register was recommended where psychologists abused or exploited their clients, were involved in multiple intimate or sexual relational contexts, made fraudulent claims to medical aids and practised while not being registered (Nortjé & Hoffmann, 2015, p. 266).

A similar study of the New South Wales registration board in Australia indicated that during a four-year period from 2003 to 2007, a complaint was lodged against 224 psychologists (Grenyer & Lewis, 2012). The most frequent sanctions were for poor professional communication (35.5%) that included breaches of confidentiality; exhibiting a rude or insensitive manner; discriminative communication; lack of consent; inadequate information; or a failure to consult a colleague (Grenyer & Lewis, 2012). Professional incompetence that included making an inappropriate diagnosis; inadequate assessments or treatment; poor record keeping; inadequate supervision; and a failure to keep to prescribed guidelines, was the second most common transgression category at 16.5% (Grenyer & Lewis, 2012). Inappropriate business practices, such as incorrect billing, overcharging, incorrect invoicing to the health care funder or financial fraud, accounted for 12.5% of the complaints (Grenyer & Lewis, 2012).

The latest statistics relating to complaints managed at the HPCSA indicate that in the year 2014/2015, 2944 complaints were received against practitioners in all the registration categories, 2755 in 2016/2017 and 1233 in 2017/2018 (HPCSA, 2018). The professional board of Psychology sanctioned 22 practitioners in 2015/2016; 20 in 2016/2017 and 33 in 2017/2018 (HPCSA, 2018). The committee of preliminary inquiry at the board of psychology managed 139 complaints in 2018, second only after the much more extensive medical and dental board (HPCSA, 2018). Of interest to note is that 60 of the practitioners’ explanations were noted and accepted (43%), while only 21 practitioners were found guilty and received a fine or a penalty within that year (15%).

As highlighted in previous paragraphs, the management of legitimate complaints and the subsequent sanctions should be encouraged and supported when necessary. This is an essential self-regulating mechanism to keep professionals and the profession accountable to the public and to promote and maintain professional standards. However, claims without merit, or “frivolous claims” incur time and fiscal investment and have the same detrimental personal and professional effects than valid claims (Thompson, 2007). Mehlman calls this the “uninsurable costs of defending unwarranted claims” (Mehlman, 2006, p. 19). To manage complaints that are eventually dismissed, can be an extended, traumatic, and costly process for the practitioner (Thompson,

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2007). The question as to why the number of complaints has been on the increase around the globe will be addressed in the following section.

1.2.4 Predisposing factors relating to complaints against practitioners

An allegation of malpractice is an adverse professional event that demonstrates the changing face of professional practice worldwide, including in South Africa. It is postulated that several factors could be contributing to the increase and pervasive presence of medical malpractice complaints in the health care sector.

1.2.4.1 The role of economics in the modern health care arena

South Africa is classified as a low to middle income developing country with a scarcity of resources, particularly in the mental health arena and rural areas (De Kock & Pillay, 2018). Health services are rendered in both the public and private sectors with higher levels of scarcity existing in the public sector that services the larger proportion of the South African population. High service demands have led to limited service availability and an accompanying high rate of adverse medical events (Dhai, 2015). To put this in perspective: it was reported in the 2019 national budget review that half of the annual provincial health budget in South Africa would have to be utilised towards the payment of medical negligence claims, and the associated legal costs in the public sector (McLaren, 2019).

How services are funded plays a major role in how it is rendered. In the public and private sector, the role of health economics and managed health care are essential when considering factors that may have contributed to a health care climate conducive to malpractice. Managed health care is defined as “risk assessment and health care management clinically and financially to facilitate appropriateness and cost-effectiveness of relevant health care services within the constraints of what is affordable, through the use of rule-based- and clinical management-based programmes” (Klink, 2003, p. 105). According to Bobbit, Marques, and Trout (1998), a managed health care system implies the involvement of a business entity or corporate structure in health care, with all its implications. This means that health care decisions are made with economy in mind, and may include requirements to pre-authorise treatments, the endorsement of certain treatments or medications and the refusal of others, the restriction on the number of consultations allowed, the reimbursement of only certain diagnostic categories and even a mandatory review of treatment progress by the medical aid (Bobbit et al., 1998).

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The aim with managed health care systems is, therefore, to contain costs and make expensive health care available to more people. Fee-for-service systems, where patients pay out of pocket for the medical service required, is out of reach for many around the world. It has definite drawbacks and few checks and balances, even to those who can afford it. Fee-for-service systems exclude many from receiving expensive treatments; practitioners are at liberty to over- or undertreat; and there is not much to encourage illness prevention and health promotion (Rosenberg & DeMaso, 2008). In South Africa, a fee-for service option is out of reach for most people, and in 2018 only 16.4% of the population subscribed to a medical scheme or medical insurance (BusinessTech, 2019).

Clients in the private and public health care sectors in South Africa are already part of a managed health care system, either under the Medical Schemes Act (Medical Schemes Act 131/1998), or as part of the national and provincial health budgets that determine the services that will be available or unavailable at state hospitals and clinics. The recently proposed National Health Insurance and the Medical Schemes Amendment Bill (Department of Health, 2019), has as its aim to make quality health care available to all South Africans. A national system of this nature will undoubtedly have to incorporate an economic model of managed care to ensure the sustainability of the system.

Managed health care systems are sometimes perceived to interfere with the status quo between the health care professional and the client/patient, in its aim to regulate an environment previously based on trust and goodwill. Manged health care systems involve third parties not usually part of a therapeutic system. Even though a business model is becoming more common in modern practice, it may still lead to ethical dilemmas and practise difficulties. This is as there is a risk that the interaction between the health care practitioner and the patient could increasingly become more impersonal and business-like. Furthermore, a decision-making model based on economics could be in direct contrast with the traditional practice models based on biomedical ethical principles. These principles are beneficence, non-maleficence, autonomy, justice, and the associated secondary ethical values such as care, respect, integrity, truthfulness, compassion, and tolerance (Beauchamp & Childress, 2001), and may not all be easily reconcilable with decisions to protect the continued availability of funds for treatments.

Modern psychological practice is increasingly compelled to incorporate business-based values in daily practice. Values such as efficacy, economy, distributive justice, and equitable accessibility became more prominent as it may ensure reimbursement from medical insurers. It could be argued

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that there was a change in the balance of power with the advent of managed care and that medical aid organisations or funders of health care are currently powerful third parties in previously bi-party arrangements. The discourse on treatment issues regarding responsibility, decision making, and ownership which previously only existed between patients and clinicians has shifted squarely into the economic domain. Service providers, such as psychologists, may therefore have become “alienated from the moral roots of the profession” (Handelsman, Knapp, & Gottlieb, 2009, p. 106). According to Pepper and Nöthling Slabbert (2011), these changes in the balance of power underlie the shift from compassion-centred care towards a defensive form of practice. Misunderstandings and conflicts can arise between consumer and service provider that differs from issues between client/patient and therapist/clinician. Clients as consumers expect to get what they think they paid for, yet the outcomes of medical conditions and procedures can be very unpredictable (Santoro, 2014), and the same can be said, perhaps even more so, for psychiatric conditions and psychological treatments. Clients may therefore not always be satisfied with the service if their expectations were not met. The economisation of medical services impacts not only client expectations but also the nature of professional relationships and practitioners, including psychologists, may begin to reframe their core professional identity from a helping professional to that of a service provider. This may impact on the nature of the relationship with their clients as well as their practice actions and decisions.

Besides incompetence, the top two categories of charges that were recently successfully brought against all practitioners at the HPCSA were matters relating to fraud and theft as well as overcharging or charging for services not rendered (HPCSA, 2018). The business management side of medical and psychological practices are therefore present in complaints alleging malpractice. Nortje and Hoffmann (2016, p. 47) reports that the “trend towards consumerism in health care settings” is accompanied by an emphasis on patient centeredness and human rights. The health care professional is expected to fulfil the role of a health care service provider who executes the correct duties, obligations, and responsibilities in order to answer the demands of an ever more informed consumer (Nortjé & Hoffmann, 2016). These changes may eventually render the field liable for more malpractice complaints. If psychologists wish to claim from medical aids or medical insurers for counselling services, they will increasingly come under fire to conform to the requirements and prescriptions of the managed care industry.

Recent debates in the South African psychology landscape relating to scopes of practice emphasise this topic, as medical insurance carriers became increasingly resistant to reimburse practitioners

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not registered in certain professional categories specialising in the treatments of psychiatric disorders, while practitioners expected reimbursement for legitimate treatments if they could prove training to practice across registration categories. The situation escalated to the point of court actions between practitioners, the HPCSA, and medical aids (HPCSA, 2019c). The HPCSA Board of Psychology established a Working Group on Promulgation of Regulations relating to the scope of practice in February 2017 to review, inter alia, the existing confusion between scope of practice and scope of profession (HPCSA, 2018). The Working Group approved a revised Scope of Practice in February 2018 and submitted draft regulations defining the scope of the profession to the Minister of Health in March 2018 (PsySSA, 2018).

A statement in the Government Gazette in September 2019 from the Minister of Health confirmed a general scope of profession for psychologists (National Gazettes, 2019). This led to confusion regarding the validity of the various scopes of practice and could have had severe practice, reimbursement, and training implications for the profession of psychology. On Friday, 15 November 2019, the HPCSA issued a statement on their website that the Minister of Health issued a notice stating that after considering feedback from all stakeholders, a decision was taken not to continue with the newly proposed regulations. Furthermore, this implied that the scope of practice for psychology, as published in the Government Gazette of 16 September 2008, remained in effect (HPCSA, 2019d).

Newman and Bricklin (1991) indicated that there is a risk that the management of health care costs by third parties can result in poor quality care. They called on organised psychology in the United States of America (USA) more than two decades ago, to help develop guidelines for the provision of psychological services in a managed care setting, which has echoes in the current South African context. These authors asked for the maintenance of high-quality services; the review of legislative and legal parameters for psychological services; options to extend treatment when necessary, and a clear distinction of what constitutes necessary and unnecessary care (Newman & Bricklin, 1991). 1.2.4.2 Evidence-based practice

According to Allan (2001), the law will interpret best practice for a psychologist as keeping up the so-called “standard of practice” (p. 88). In accord with this standard, there should be an application of “knowledge and skills with the degree of care that is expected of a reasonable therapist in the position and circumstances of the therapist whose behaviour is being questioned” (Allan, 2001, p. 88). This best practice standard is also required to be evidence-based or based on research findings.

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If there is a failure to adhere to these standards, a complaint about the treatment will “invariably lead to a finding of negligence” (Allan, 2001, p. 88). Merely employing commonly used approaches and techniques could be grounds for a possible complaint as there are many discredited techniques in everyday practice. American courts are known to have ruled that expert testimony must be based on “scientific knowledge” and not just on common practice (Redding & Herbert, 2011, p. 14). Therefore, in the face of a complaint, practitioners should be able to prove that the therapeutic approaches they used were informed by scientific knowledge and that harmful or unproven procedures were avoided.

According to Shapiro and Smith (2011), the most common malpractice complaint against psychologists in the USA in recent years was that of ineffective treatment. If the practice of a mental health professional deviates from a professionally accepted standard, the client is technically harmed as a result (Shapiro & Smith, 2011). However, the “concept of a legally acceptable standard of care”, may not be clear to psychologists and a standard of care may include a “range of options for treating a client” (Shapiro & Smith, 2011, p. 26). Similarly, in South Africa, it may not be clear what the minimum practice standards and basic skills are that a court of law may require from a psychologist accused of negligence (Allan, 2001). Psychotherapy is often seen as an art, yet it is “an activity that requires knowledge and skills and must be practised with care” (Allan, 2001, p. 83). Therefore, an accused psychologist will be compared to the level of knowledge expected from an ordinary, average, or reasonable therapist under the specific circumstances (Allan, 2001). It is therefore advisable for psychologists to use only contemporary evidence-based practices and to be able to justify their practices by using professional treatment guidelines to avoid misconduct complaints (Grenyer & Lewis, 2012).

In response to the above, some psychological practitioners are severely critical of the notion that professional psychologists belong in the health care industry and who object to the use of health care constructs and language in psychology. These critics maintain that the counselling professions has unfortunately and misguidedly been reconceptualised as health care professions. The increased training in psychopathology or diagnostics; the efforts to obtain legal parity with other medical health care professionals; the use of language relating to the terms health or healthy to indicate optimal functioning; and the emergence of the field of health and wellness counselling as a recent counselling-related professional category is seen as placing counselling practice within the health care industry (Hansen, 2007). Hansen (2007) contends from a postmodernist perspective that there are flaws in the argument that brands counselling professionals as health care professionals. He states that this categorisation erroneously occurred because of the collapse of Cartesian dualism;

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the expansion of psychiatry and psychiatric diagnostic categories; the rise of biology in the aetiology of emotional problems; and the subsequent biological reductionism. In his opinion, it is an argument based on pragmatism rather than logic. Seen from this perspective, it implies that the therapeutic relationship with clients and understanding their subjective experience is currently not as important to the counselling profession as correctly diagnosing and normalising the client’s behaviour through prescriptive and evidence-based treatments. Hansen (2007) indicates that “the quality of the counselling relationship is the factor that accounts for the majority of the variance in counselling outcomes” (p. 290) and that the relationship focus is diminished if counselling or therapy is seen as a health care profession. In a different paper, Hansen put forth arguments for counselling returning to an ideological grounding in the humanities (Hansen, 2012).

However, not all mental health practitioners fully endorse this position and the humanistic model only. Soth (2007) pointed out that the influence on and integration into the profession of other perspectives and developments cannot be escaped in modern practice. The philosophical groundings of a purely humanistic model may be a valid argument, but modernist and positive paradigms enter the consulting room with the client (Soth, 2007). The client lives in a world where positivism prevails and therefore have “medical model expectations of the counsellor” (Soth, 2007, p. 3), such as symptom reduction. Soth (2007) maintains that it will be to the detriment of the profession to force a polarisation between the humanistic and positivistic perspectives and to deprive medical- and health-related professions and patients of the benefits of a psychological perspective. He advises that the best approach would be not to transcend the medical model with an antimedical model, but to hold both these positions in a “paradoxical embrace” (Soth, 2007, p. 5); to be aware of the ethical conflicts it brings; to see the value of both; and to try to manage both accordingly.

In a similar vein, Suthakaran (2012) agrees that sciences and humanities should be equally appreciated. Cases should, as a result, be conceptualised from multiple humanistic perspectives as well as selecting the best scientific, evidence-based perspective or tool to address the client’s problems objectively. As such, best-practice treatments and evidence-based outcomes can augment the humanities perspective. It may be questionable to continue along a purely humanistic path if unproven procedures are doing harm and clients are often not fully informed about existing alternative and useful approaches (Redding & Herbert, 2011). Practitioners who adopt such an approach may erroneously continue to use what they were initially trained in, and therefore familiar with, without informing clients or even being aware of the paucity of scientific groundings to these approaches.

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Many psychologists in South Africa do not follow a strict outcome- and evidence-based approach; have failed to incorporate empirical findings in their psychotherapeutic work; and often rely on clinical intuition and experience (Kagee & Lundt, 2012). A possible reason for this may be the perceived clash between a medical model and the counselling profession. Nevertheless, if counselling professionals wish to avoid malpractice claims based on negligence, they will have to consider conforming to evidence-based practices.

Medical aid funders are also increasingly looking at reimbursement for only evidence- and outcomes-based treatments. This ties in with the description of the health care landscape discussed in the previous paragraphs. If psychologists do not comply with evidence-based treatments and accepted psychiatric diagnostic criteria (in the current absence of accepted humanistic categorisations by the medical aid managers), it could point to an internal inconsistency, as psychologists continually wish to be reimbursed by these funders. Not following research-based practices will make it impossible to prove to medical aid funders that expected outcomes were reached and best practices maintained during treatment. The outcome of the scope of practice and evidence-based practice debates has implications for how future psychologists will need to be trained and which modalities of treatment will be acceptable to the medical aids and clients. In an increasingly litigious world, psychologists should be aware of this philosophical conflict and how it could be managed in practice.

1.2.4.3 The demographics of complainants and defendants

It is impossible to predict which practitioners will be complained against and become defendants in a disciplinary hearing or a court case. Keith-Spiegel and Koocher (1995) indicated that it is not only devious or criminal practitioners who end up in trouble. That notion is based on prejudice and bias not only from the public but also from within the society of health care professionals. The assumption that only practitioners who were at fault and committed a breach in their duty to care are the ones receiving complaints is untrue and can lead to harm by attaching undue stigma (Mehlman, 2006; Ryll, 2015; Santoro, 2014). Newly qualified psychologists who are motivated to start earning money after years of study and striving for recognition in the profession often make mistakes because of inexperience (Keith-Spiegel & Koocher, 1995). Experienced psychologists are also complained against as they make judgement calls with which clients are unhappy; they may merely make an honest mistake or have an oversight; while some are genuinely ignorant (Keith-Spiegel & Koocher, 1995). If practitioners are personally troubled or impaired or have limited emotional strategies to cope with demanding and difficult clients, it can also lead to a

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complaint (Keith-Spiegel & Koocher, 1995). It therefore seems as if there is no typical “profile” of a practitioner who suffers complaints, and the answer to the question if practitioners can avoid being sued or complained against, must be answered in the negative (Shapiro & Smith, 2011). Allan reiterates this sentiment and state that “threat of legal liability is a constant source of concern to therapists” (Allan, 2001, p. 68).

It can also not be predicted why patients will sue, or who will become a complainant. In a recent report, the Medical Protection Society (MPS) suggested that the standard of care in South Africa, particularly in the private sector where access to resources is available, has not decreased to the extent that can explain the increase in litigation, nor is this increase in keeping with current international trends (Medical Protection Society, 2015). This suggests that other factors play a role in the increasing culture of complaints against practitioners in South Africa. One of these factors may be found in suggestions by the media and from the Department of Health, namely that practitioners are an easy source of revenue and a way to augment the income of lawyers and patients (Malherbe, 2013; MedicalBrief, 2016). In a study of radiology practitioners in Italy the perceived reasons for increased malpractice litigation were the influence of the mass media; excessive patient demands; the possibility that a patient may receive considerable compensation from a complaint; statements made by other professionals; and poor doctor-patient relationships (Fileni et al., 2007). Santoro (2014) thinks that professionals have lost their voice and decision-making capacity to “an improvised and chaotic culture, often propagated by unqualified opinion-makers with little or no scientific background” (p. 173).

The existence of a so-called “blame culture” may further enhance malpractice complaints. “Individual blame logic” attributes blame to a single origin (individual) as opposed to investigating all the contributing circumstances of the perceived error or discomfort experienced in a particular situation (Catino, 2009, p. 251). Hyman and Silver (2006) state that “patients who do not name and blame, do not claim” (p. 1114) and surmise that despite the belief that patients sue their doctors with ease, there is “substantive under-claiming” (by patients who deserve payment but do not sue) and “substantive over-claiming” (by patients who sue but do not deserve payment) (p. 1092) in this arena. People can, therefore, decide to lodge a complaint on emotional, moral, and subjective grounds or based it on their perception of whether there was any wrongdoing, as opposed to factual, objective wrongdoing (Kleinman, 1998).

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1.2.4.4 The complexities of ethical deliberation

It is further possible that current ethical training practices may not prepare practitioners sufficiently to cope with the ethical challenges of contemporary, modern-day practice. Ethical codes and rules of conduct for professionals are generally grounded in what can be described as principle-based ethics. Steinbock, Arras, and London (2003) describe the principle-based approach as “emphasising the role in moral reasoning of a cluster of middle-level ethical principles” (Steinbock et al., 2003, p. 36). Common moral experience and the expectation to adhere to a list of moral duties is the point of departure of these approaches as (Steinbock et al., 2003).

According to Childress (2001), a principle-based approach maintains that some general moral norms are central to moral reasoning. Beauchamp and Childress (2001) remind us that a set of principles usually express the general values that underlay conventional morality and functions as guidelines for professional ethics. According to Childress (2001), there is no single principle-based approach, but approaches based on principles can differ in terms of how they arrange obligations, rights and rules. These rules can be primary and fundamental or secondary and derivative (Childress, 2001. Beauchamp and Childress (2001) describe four clusters of principles and several derivative rules that function as guidelines for professional ethical behaviour and are well known in the health and medical sciences. These include respect for autonomy (a norm respecting the decision-making capacities of autonomous persons); non-maleficence (a norm of avoiding the causation of harm); beneficence (a group of norms for providing benefits and balancing benefits against risks and costs); and justice (a group of norms for distributing benefits, risks and costs fairly) (Beauchamp & Childress, 2001, p. 12). Even though the understanding of psychological work is based on these norms, it may seem too abstract and far removed from everyday practice dilemmas. To employ consistent and clear moral reasoning to all practice dilemmas requires the psychologist to become a sophisticated moral agent as well.

Nortjé and Hoffman (2016) remind us that the violation of an ethical rule does not have to be intentional and that ethical principles can often be in conflict, putting practitioners in an awkward position and generating uncertainty as to what to do and which principle to follow. When only using the principle-based approach in biomedical ethics, it could be assumed that one should merely apply these principles to a specific dilemma and come up with the “right” answer (Thornton, 2006). However, the actual meaning of the principles in a specific situation may not be understood or adequately deliberated when following such an approach and could be interpreted differently by different parties. This could lead to uncertainty regarding how to “balance” the

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principles and what the “right” answer should entail. Smith, McGuire, Abbott, Blau and Burton (1991) suggested that when practitioners make ethical decisions, and ethical codes do not clearly address the specific situation, there is uncertainty in the reasoning process about which ethical principles are applicable. Not just formal professional codes but a variety of other elements, such as situational or personal reasons, could also influence actions during an ethical dilemma (Smith et al., 1991). The detail and specifics of a case, cultural factors, and the context of the modern health care arena as described above, often play an important role in ethical deliberation and create many exceptions to the rules. Therefore, it can never be said that a particular rule should always apply in exactly the same manner in similar cases.

Rules and principles are invaluable, but they are open to interpretation by all the stakeholders. Practitioners may, from their point of view, follow all the rules and principles to the letter and nevertheless still have a complaint brought against them because of the factors described above: the broader health care environment in which they practice; the imprecise nature of health science; patient responses to recommendations and treatments; and the economic and political forces beyond their control. These current trends in the health care environment set the scene for an increase in malpractice litigation and may gradually become more prevalent in the careers of psychological practitioners. Following this overview of why the number of malpractice complaints has been on the increase around the world in recent times, the subsequent section considers the more personal impact that a malpractice complaint has on the implicated practitioner.

1.2.5 The effects of a complaint on practitioners

The effect of a malpractice claim on practitioners is well documented in the literature although most studies deal predominantly with medical, nursing, or general mental health practitioners as research subjects, whereas only some publications are aimed explicitly at psychologists. Studies mostly describe the process of litigation and the impact on the psychologist, with a few focusing specifically on the subjective emotional and personal experiences of the practitioners who find themselves in that position. No South African studies that specifically investigated the experience of the psychologist who receives a complaint could be found.

1.2.5.1 Litigaphobia, medical malpractice stress syndrome, and clinical judicial syndrome In a seminal article on the topic of the effects of a malpractice suit on mental health practitioners in a hospital setting, Poythress and Brodsky (1992) described the stress of prolonged litigation as pathogenic. They found that psychological symptoms, particularly depression and pervasive anger,

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were common among the defendants in a litigation process. They suggested that professionals may develop “litigaphobia” namely the excessive fear of litigation that affects and changes their clinical practice. Clinicians may develop negative attitudes regarding their work and their clients and start to practice defensively (Poythress & Brodsky, 1992, p. 157). They concluded that practitioners are subjected to emotional strain because they experience a charge against them as beyond their control, severely distressing, and threatening to their well-being. Their research showed that the half-life of the emotional impact of litigation extended into several years (Poythress & Brodsky, 1992).

The effect of the various elements and processes professionals are subjected to during a malpractice complaint has been termed malpractice stress syndrome (MSS) (Boehler, 2007; Charles, 2001; Ryll, 2015). Parallels were drawn between MSS and posttraumatic stress disorder (PTSD) with symptoms of trauma, hyper-arousal, and re-experiencing evident in the subjective descriptions and presentations (Paterick, Patel, Chandrasekaran, Tajik, & Paterick, 2017; Ryll, 2015). MSS occurred after the practitioner experienced harm or threat of harm in the form of an assault on his or her honour and professional reputation that is metaphorically life-threatening. The practitioners had frightening and recurring thoughts about the complaint, some avoidance symptoms in their behaviour and practices, and hyperarousal or anxiety symptoms in the form of tension, worry, and irritability as mentioned in the previous subsection.

Boehler (2007) mentioned that the typical stages of grief described by Kübler-Ross (1969) could also apply to practitioners going through the process of a complaint, whereas Bushy and Rauh (1993) applied crisis theory to describe the human dimension of litigation effects on practitioners practising in a rural community setting. They described a period of disequilibrium and serious life disruption because the practitioner could not escape the threat. This threat was experienced in the form of serious loss to finances; personal integrity; professional status; career ideals; personal goals; and changes in relationships (Bushy & Rauh, 1993).

The term critogenic refers to law-caused harm and according to Ryll, is “intrinsic and inescapable” to any legal process (Ryll, 2015, p. 36). She quotes Strasburger (1999) in saying “there is an inherent irony on the judicial system in that individuals…must [then] endure injury from the very process through which they seek redress, the legal process itself is a trauma” (Ryll, 2015, p. 36). Furthermore, the typical health care practitioner is in most cases self-critical with a tendency towards self-doubt, is open to feelings of guilt, and has an exaggerated sense of responsibility

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(Charles, 2001). These characteristics are often useful in clinical practice but may work against the practitioner during a complaint process and exacerbate the emotional effects (Charles, 2001). Thomas (2005; 2014) has published widely on this topic from an American perspective and does supervisory work with psychologists who were charged and found guilty. She confirmed that the stress reaction is an extended process and reported that responses such as denial, overconfidence, anxiety, depression, affected clinical judgement in current and subsequent cases, and difficulties to continue work with clients whose cases were the subject of investigations, impacted on the psychologists who were charged (Thomas, 2005; Thomas, 2014). Similarly, in a study of medical practitioners, participants exhibited “anger, depression, anxiety, insomnia, anorexia, trouble concentrating, irritability”, and paranoia towards patients because they feared that any patient could potentially become a plaintiff (Kleinman, 1998, p.40). As a result, many practitioners doubted their own abilities; their professional practice was impeded by subsequent defensive or conservative practice; they reported a loss of job satisfaction; and developed thoughts of early retirement (Kleinman, 1998).

Van Horne (2004) echoes these sentiments in her review of the literature and surveyed information about disciplinary complaints against psychologists. She described a sense of vulnerability on the part of the defendants. She concluded that for a psychologist, the consequences of misconduct can be “traumatic, expensive and career-ending” (Van Horne, 2004, p. 177). In a South African study that explored the lived experiences of psychologists who worked with parental alienation syndrome in divorce and custody cases, the practitioners reported being constantly plagued by the threat of HPCSA complaints or malpractice action by the often hostile and manipulative parents and lawyers (Viljoen & Van Rensburg, 2014). Psychologists felt angry, frustrated, disappointed, and experienced high levels of stress under these conditions. Ultimately these psychologists contemplated the financial and professional cost and benefits of this type of work and considered not working with forensic cases of this nature any longer (Viljoen & Van Rensburg, 2014). The emotional reactions described in the literature (shock, sleeplessness, depression, irritation, annoyance, worry, anger, a sense of vulnerability, loss of nerve in clinical situations, alcohol and drug use, and suicidal ideation) therefore seem to occur commonly and unavoidably impacts on the individual and his or her professional practice (Brodsky & Cramer, 2008; Kleinman, 1998; Schoenfeld, Hatch, & Gonzales, 2001; Woody, 2009). Charles mentioned that 27%-39% of physicians in her study experienced a major depressive disorder, 20%-53% met the criteria for adjustment disorder, and in 2%-15% a physical illness began or was exacerbated (Charles, 2001).

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These reactions were found to be shared among practitioners irrespective of training, experience, success, and resilience levels. Practitioners questioned their own professionality, saw themselves as having a damaged reputation even if found innocent, found it difficult to continue to practice, and some considered ending their careers (Van Horne, 2004; Woody, 2009).

Kleinman (1998) believed that fear of the unknown and feelings of loss of control were at the core of these reactions. Unknown factors such as not understanding the operations of the legal system; uncertainty about legal costs and financial implications (whether professional insurance will cover the complaint and the lawyers’ fees); whether practitioners will qualify for future insurance; and even possible permanent damage to their professional reputations impacted on practitioners. This perceived loss of control could further emerge as an annoyance, because the professional had to endure the legal case, officials, and administration for extended periods. The stressfulness of the lengthy process of a complaint was exacerbated if there was little communication from the registration body and studies confirmed that there were often high levels of dissatisfaction with the management of the processes by the registration body (Peterson, 2001; Williams, 2001). Some practitioners even experienced the administration processes surrounding a complaint as punitive, unfair, and sometimes even abusive (Schoenfeld et al., 2001; Thomas, 2005).

Associated with the length of the process, were the costs involved. To manage a malpractice charge can be very expensive, even if the case does not go to trial or result in a disciplinary hearing. Preparing a defence can be costly, both in terms of time away from work and engaging in legal counsel. To undergo supportive therapy or supervision may be another unexpected expense. Of psychologists in the USA who were found guilty of an offence, 15% hired a psychologist to guide them through the process, whereas 70% hired a lawyer; 60% consulted a psychologist; and 75% consulted a lawyer (Schoenfeld et al., 2001). The increase in the malpractice insurance fees for South African practitioners in recent years attest to the high costs involved in defending against a complaint (Howarth & Carstens, 2014; Howarth et al., 2013).

1.2.5.2 Prolonged effects and professional impairment

Being complained against also leads to an extended and prolonged stress-reaction. The reaction starts with the notification of a complaint, lasts through the investigation phase and, if found guilty, continues to the implementation of sanctions, fines, or rehabilitation (Thomas, 2005; Thomas, 2014). When the complaint is first served and the letter read, there was usually surprise, shock, outrage, anxiety, and dread experienced by practitioners (Charles, 2001). During the consultation

Professional misconduct charges against a group of South African psychologists: an investigation of experiences, coping and meaning making