Australian Hypnosis Associations Handling Complaints

HypnosisAustralia, November 2005

By Dr Tracie O'Keefe DCH, Clinical Hypnotherapist, Psychotherapist & Counsellor
Editorial Director of HypnosisAustralia Online.

From time to time members of the public who are clients/patients of practitioners from different modalities using hypnosis make complaints against practitioners. Some of those complaints may be genuine and some are fictitious. Other complaints may seem genuine to the complainant but are a figment of their imagination. For those of us who work in mental health, we often have to deal with very disturbed people and the dynamics of those situations can be extremely complicated. Sometimes clients may not like what therapists say to them and they may take offence and decide to bring what are called nuisance complaints and law suits against therapists.

The kind of complaints that can come up for hypnosis practitioners involve false memory syndrome, sexual abuse by the practitioner, psychotic decompression, failure of duty of care, unauthorised disclosure, incompetence, rudeness, and attempting to work with problems for which the practitioner is not trained. Many of these may be impossible to prove in a court of law, but they are reported to professional associations in the form of complaints.

Associations need to be geared up to deal with complaints when they arrive and should not wait until a complaint is made to devise a policy for handling such a situation. If they wait until a complaint is made to decide their policy, they run the risk of being sued by the therapist for mishandling the situation and possibly libel if they find against the therapist. Just as disturbing is the fact that the association also runs the risk of being sued by the complainant for not handling the complaint well and not having proper control or monitoring of their members.

Procedures for hearing complaints need to be worked out in advance to the nth degree, they must be recorded, and all parties involved must be giving a full set of criteria for hearing that complaint. The complaint itself should only be considered if it is in writing and of an official nature. Every single detail must be recorded in writing, with copious written information handouts in plain English to all parties involved, even sometimes in translated forms via a professional translator. It is highly dangerous legally to make the procedures up as one goes along.

Sometimes a conciliation process between the two parties can work depending on what the parties see as their desired outcomes. This would not involve the two parties meeting but simply the association representative negotiating an agreed amicable outcome. This is sometimes the better option but when pride and reputation are in danger of being damaged, people do tend to take up their own corners and become intractable, so those in the middle may be unable to find compromise.

For professions that are currently registered with the government - and that can change from state to state - they often have their complaints handled by a state government department set up for that very purpose. There may also be a further enquiry carried out by the particular body for that profession - for example, medical, nursing, psychological, dental, chiropractic. In some states the process is much more inadequate and only just developing.

For presently unregistered professions such as counselling, psychotherapy, and hypnotherapy it is more complicated because there are no official guidelines to which to adhere. Some associations try to use best practice guidelines similar to or the same as those used by government registration boards that look after compulsory registered professions but some simply make up their guidelines as they go along.

One of the major problems for associations is that they may be run by volunteers who rarely understand the law and its applications. When a practitioner volunteer sits on or heads an ethics committee they usually have very little idea of the complications it can entail when hearing complaints. Those committee members may be very well intentioned, or not in some cases, but they rarely are able to follow their own guidelines precisely or understand the dangers of not allowing a full equitable process to all those involved.

Ethics committee members often misinterpret complaints about their inability to administer the situation as personal attacks upon themselves which can lead to a whole breakdown of the process. Association officers can be slow or carelessly respond to the situation. This may even lead to the abandonment of the complaints process altogether and later on to litigation that can carry on for years. What both ethics committee members and board members need to develop are extra sets of ears so that all parties have trust in the process and believe that they are being heard.

Accountability has to be the byword of a profession in order for it to become a registered profession, as counselling, psychotherapy and hypnotherapy seems to want to be in Australia at this time. The process of hearing complaints in that case would become mandatory according to the model of state registration boards. Only openness and honesty by the associations themselves will give those professions the credibility they seek.

Many associations, however, fear openness and honesty because their ethics committees and board members seek to control and contain the complaints process to give a desired outcome that is least damaging to the association. Those kinds of actions generally lead to false outcomes for both the complainant and the complained against, with them feeling cheated by the process.

Sometimes a complaint is only determined to be proved upon sufficient evidence being provided, but other times a complaint is upheld on the balance of probabilities. If the complaint is later found to be false, then that association which has passed sanctions or made public comment will find itself in a very difficult legal position and may end up paying out damages.

What association officers need to remember is that not only clients sue, but so do therapists. Associations often tend to forget that not only are the clients of their members customers but so are the members themselves. When committee members begin to see themselves in a policing-like role and not as a rational adjudicator, they run the risk of being biased and creating prejudiced outcomes. Many a good career has been ruined by a poor complaint and many a good complaint has gone under investigated.

Secrecy is the enemy of good complaints processes and full disclosure to the practitioner involved needs to be available at all times. The process of prohibiting access for the practitioner to their own file is nothing less then an abuse of human rights. Everyone should be able to know the evidence on which they are proposed to be found culpable of an act. Everyone should also have access to the actual complaint and the information about the identity of the complainant. Everyone has the right to know their accuser or else how can they properly fully defend themselves.

Pam Burton, the legal counsel for the Australian Medical Association (AMA) confirmed that the AMA will give full access to all information held on a member to those members. Frank Tinny of the psychological professional advisory group for the Australian Psychological Society also confirmed that a member should have access to all information held about them upon request.

Some professional associations in America have abandoned hearing complaints all together for the fear of being sued by their members. What they offer is a set of ethical guidelines for their members to follow. Only when litigation has been proved against their members will they step in and apply sanctions which may be additional education, a time of added supervision or even disbarment.

If an association is going to hear a complaint it must check with its insurers about the safeness of that process and to see if the insurance covers such circumstances. Sometimes when that complaint process is put out to a third body, the associations' insurance becomes nil and void and then the board or committee members could in actual fact become liable themselves. Also, passing judgment on a decision made by a third party is legally very precarious and may prove impractical from a legal point of view.

Again, if a complaint is proved against the practitioner the association must be very careful about any recommendation or sanction it hands down as the effects may be catastrophic if mishandled. If the practitioner is struck off the membership register, then it is the duty of that association to inform any other associations to which that practioner may belongs.

Historically we can see that many complaints about practitioners were in fact nothing more that political agendas manipulated by competitors. Freud found that he had to abandon his theory about sexual abuse in childhood after several complaints and fear of being sued. Jung abandoned ideas of publishing within professional criteria for fear of being torn to pieces by his enemies. Milton Erickson in the early days found himself within a whisker of being struck off for practicing hypnosis among those who saw it as unprofessional. Reich died incarcerated, totally destroyed by the actions of those who sought to discredit his work. The knife, ultimately, is the servant of many masters.

Today is no different as the politics within associations will often see practitioners disadvantaged by committee members pursuing their own agendas. The rise of the right and the religious lobby is as pungent today as it was in the 1930s. Board and committee members often do not declare personal interests but pursue them in secret to ends that can be less than equitable for the practitioners complained about or the complainant.

Not only must the process of hearing a complaint be beyond reproach but it must be seen to be beyond reproach. This can only ever be achieved by the procedures being published in advance so that it is known to all parties with absolutely no surprises what exactly can, might and will take place.

The medical complaints about doctors in NSW are directed to the NSW Medical Board and at any time the doctor who is being complained about may have access to all information within their file upon request. The psychologist registration board for NSW and other states, when hearing complaints against a psychologist, allows the psychologist to have access to the complaints file and its material within at any time. With the NSW Nurses Association, when a complaint is made against a nurse, the nurse has the right to see that file at all times upon request.

The discretion with which complaints process is held needs to be strictly observed by associations because if a complaint is not proved, the very scandal of the complaint being brought can actually severely damage a professional's career. If a complaint is upheld and any criminal act has taken place, it is also the duty of the association to inform the relevant legal authorities.

Finally comes the issue of public disclosure, and this is really a very grey and dangerous area. Should the association tell the public that they have stuck-off a practitioner and that they have been excluded from the register? Again the association must be careful that they do not run into an area that may hold the danger of libellous statements that although they may have the balance of probabilities, they may not actually be provable in law. Name and shame is a dangerous policy that could be better superceded by legal registration of therapists using hypnosis within the healthcare environment. Of course some of these professions are already registered and subject to established complaints procedures but others presently are not, which sometimes leads to gross unaccountability.

©HypnosisAustralia, November 2005