RECOVERED MEMORIES:
TREADING ON TERRITORY
In light of recent court cases, one of the most realistic concerns for therapists is how to deal with the
area of recovered memories. The topic itself has raised debate within professional circles as to whether
or not the phenomenon of "repression" exists at all.
The following material is offered as a guideline for therapists in dealing with clients when either it
appears the client has experienced the blocking of memories of childhood abuse or the therapist
believes it is clinically appropriate to raise with the client the possibility of childhood abuse or molest.
There is never a perfect formula that works in handling such nebulous things as memories.
Consideration of the following, when coupled with sound clinical practice, will give the practitioner a
reasonable chance of staying out of trouble legally, or at least a viable defense in any court action.
The therapist should consider the following issues:
CHILD ABUSE REPORTING REQUIREMENTS ARE TRIGGERED BY KNOWN OR REASONABLY SUSPECTED PHYSICAL OR SEXUAL ABUSE OR NEGLECT
What you need to report child abuse/neglect:
1. A psychotherapist: a psychiatrist or a psychologist, licensed clinical social worker or marriage, family and child counselor or a trainee or an intern in such fields or a school psychologist or licensed educational psychologist. Clergy are also mandated reporters as of 1997.
2. A child: a person under eighteen years of age.
3. Known or reasonably suspected child abuse or neglect. Reasonable suspicion is based on the
psychotherapist's education and training and experience. Knowledge does not require tangible proof.
What you must do when you know of or reasonable suspect child abuse/neglect:
1. Call the police or child protective services as soon as practicable by telephone.
2. Submit a written report within 36 hours after your phone report.
What to do when an adult reports having been abused/neglected as a child:
1. Ascertain whether any child [a person under age eighteen] is currently at risk. If so, report any known or reasonably suspected child abuse.
2. If clinically appropriate, advise the client that s/he may elect to report their own abuse to the police
or child protective services. If the alleged perpetrator is deceased, no agency will take a report so you
may wish to avoid this frustration for your client.
ARE YOU ADEQUATELY TRAINED TO DEAL WITH REPRESSED
MEMORIES?
Professional rules and regulations require that a psychotherapist not practice outside the scope of his/her
training and experience. You should determine first of all whether you believe in "repression" or other
defense mechanisms that block memory storage or retrieval, since some clinicians claim traumatic
memories cannot be forgotten.
You should stay current with professional literature, workshops and consultations regarding traumatic
memories and feel confident that you understand the concept and are trained to deal with the
identification and treatment of repressed memories of childhood abuse/neglect. You should actually be
conversant with all defense mechanisms, their similarities and differences, and the interplay between
them. All malpractice cases look to whether the therapist is practicing outside the limits of his/her
licensing, training and experience.
If you intend to use hypnosis, board certification is no longer required but the previous standard of 40
hours of training should still be maintained to prove the adequacy of your own training.
DO YOU OR YOUR CLIENT NEED TO BE RECOVERING MEMORIES IN THE FIRST PLACE?
This is perhaps the heart of the matter: Is it necessary to discover a client's repressed or otherwise
forgotten memories and/or to have tangible proof that abuse/neglect occurred?
If the client thinks s/he has been abused/neglected, does there need to be more proof or memories to
substantiate the belief? As an example, some theorists believe that individuals develop multiple
personalities to deal with severe early childhood trauma. Others believe that the memories of such
clients are essentially coded in archetypal figures and that such extreme abuse never actually occurred.
The bottom line is to determine your clinical purpose in eliciting these memories. Can you treat your
client and his/her problems without obtaining tangible evidence of abuse/neglect? Can your client heal
by affirming the "truth" of their own experience without solid proof? Can you reflect, support and treat
their pain without having to suggest they were abused? This, of course, must be balanced against the
clinical benefit of helping the client "give voice" to their experiences and memories.
Alternatively, you should be looking for clinical symptoms and signs that confirm or cast doubt upon
memories of abuse. Clients, particularly adults, must be willing to look for external signs of confirmation
of returned memories, not just internal ones. Your diagnosis should be based on very specific post-traumatic symptoms. "Having a feeling" about the client does not constitute making a diagnosis.
Remember, too, there is no such disorder as "False Memory Syndrome." That's a name coined for a
group of people who believe they were falsely accused of molest.
HOW TO YOU INTEND TO EVOKE THE REPRESSED MEMORIES IF YOU FEEL YOU MUST REACH THEM?
Techniques for questioning a client: The most solid and irrefutable techniques of a therapist are
found in his/her manner of drawing a client out. Open-ended questions and close reflections of the
client's statements are the best choices, therapeutically and legally. Consider the following styles:
Open-ended questions/comments:
Tell me what you remember about that?
How did/does that experience feel to you?
We don't know exactly what happened in our pasts, but our main focus is on how you felt and what
impact that has on your present functioning.
Leading or evocative questions/comments:
Have you ever considered the possibility that you were abused as a child?
I've had feelings like that, and I was abused as a child.
Try to remember anything else that might explain why you are having the problems you're having now.
It sounds like you were abused as a child. Tell me about it.
Did your mother or father or anyone else ever touch you inappropriately as a child?
REMEMBER: YOUR QUESTION SHOULD NOT SUGGEST A "RIGHT" ANSWER
Use of hypnosis: You must be skilled in any technique you utilize. Although the licensing boards no
longer require certification in hypnosis, if you are to avoid a malpractice action, your education should
at least meet the previous standard of forty (40) hours of education/training.
If the case in which you are involved will require the client to testify in a criminal matter, the use of
hypnosis may irrevocably taint the client's testimony. The testimony may be possible, but proof must
also be given regarding pre-hypnotic memories, the adequacy of the hypnotic techniques used, and
whether the hypnosis rendered the pre-hypnotic memories unreliable or less accessible. If in doubt,
seek legal advice before utilizing this technique when your client is to testify in a criminal
case.
Use of drugs. Other than psychiatrists, no therapists may prescribe or administer any drugs to a client.
Asking a physician to administer drugs to get at "the truth" for a client is getting into a less traditional,
less standard and less defensible realm of treatment. This technique must be supportable by clinical
literature or practice to protect the therapist if there is any legal action.
RECORD KEEPING IS THE KEY TO PROTECTING YOURSELF AND YOUR CLIENT
Until the past few years, and in other than very clinically-oriented programs, most therapists were taught
to not take notes or to take minimal notes, in theory to "protect " the client. That practice is no longer
professionally, legally or practically valid.
A therapist who fails to take regular, objective progress notes on a client no longer meets the standard
of practice within his/her profession. Objective clinical notes record the progress of the client and the
course of the therapeutic process. Any consultation on the case should also be noted. Corroboration
of the client's diagnosis can prove helpful. Conversely, disagreement by the consultant as to the
diagnosis should cause the therapist to re-evaluate the case and/or approach.
A thorough client history and records or reports from previous therapists may be especially relevant
when abuse allegations or memories arise. Likewise, the therapist should make more detailed notes of
the client's description of abuse, including how the issue of possible child abuse or memories arose and
who first raised the issue.
Audio and video tapes are acceptable with the client's consent. Such tapes can verify a therapist's
conduct and may be helpful in subsequent litigation. They do not, however, guarantee that the therapist
won't be questioned about even seemingly innocent comments made to the client. There are, though,
practical problems: 1) some clients, and even therapists, may be nervous or distracted by the
recordings; 2) storage of tapes of every session with a long-term client can be a practical problem; and
3) such tapes make it less convenient for a therapist to refer back to certain incidents that could be
readily found in written notes.
HOW CAN YOU MINIMIZE THE POSSIBILITIES OF NEGATIVE LEGAL CONSEQUENCES FOR YOURSELF?
One must be a realist in terms of the possibility of legal actions by a client, or now by their families or
other third parties. Good, sound, competent treatment is always your best defense against any legal or
board action filed by a client. You may not be able to avoid being sued, but you can increase your
probability of success in court or with a licensing board if you are objective, knowledgeable and have
provided appropriate clinical treatment. Assuming the role of an advocate for your client is certainly not
wise legally and perhaps not appropriate clinically. You are the therapist. You must maintain your
professional boundaries.
The pivotal element legally in the issue of whether a third-party has the standing (ability) to bring a
lawsuit against a therapist seems to be derived from a 1980 California Supreme Court case, Molien v.
Kaiser Foundation Hospitals. In Molien, a wife was told erroneously during her routine physical
exam that she had contracted an infectious type of syphilis. She was required to undergo treatment and
was instructed to tell her husband. Thereafter the husband was required to undergo blood tests to see if
he was infected or was the source of his wife's infection. Tests revealed he did not have the disease.
These events strained the marital relationship and led to dissolution proceedings.
Although the husband was not a patient of the treating physician, he was a reasonably foreseeable
victim of the negligent diagnosis. Because the risk of harm to husband was reasonably foreseeable, the
court held that the doctor and hospital owed the husband a duty to exercise due care in diagnosing his
wife's physical condition.
This same analysis is being used as the basis for family members or third parties to sue a therapist for
the allegedly wrongful diagnosis of physical or sexual abuse: was the family member/third party the
reasonably foreseeable victim of the therapist's misdiagnosis of abuse by that individual? One must then
compare the therapeutic situation to the facts in Molien.
In the highly publicized Ramona case in Napa County, California, the court allowed the father to sue
the daughter's therapists stating: "... there would not be a cause of action ... under the circumstances of
this case if there had been neither a direction to [the daughter] to confront her father, nor a meeting at
which her father was confronted." The court made clear that a lawsuit derived solely from the father's
reaction to his daughter's injury would not have been allowed.
It is important for a therapist to remain current as to legal issues relating to the conduct of his/her
profession. For example, there is some belief in the legal community that the California Supreme Court
may elect to modify the Molien decision to preclude a lawsuit where a patient is only directed to advise
another of the patient's diagnosis, versus a case when the patient is directed to tell another person and
advise that person to get treatment. While that seems like a fine distinction, it may be one that defines
the liability of a therapist in a future action. It is reasonable to assume that cases such as Ramona will
find their way to appellate courts or the California Supreme Court to clarify the liability of therapists to
family members/third parties who are not under the care of the therapist.
Keeping current clinically and legally is your best protection.
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