Legal aspects of employing "counselors" in a clinical practice

With the increasing reliance of the medical profession upon nonlicensed counselors as employees or associates for facilitating psychosocial, rehabilitative, and various other services or guidance to patients, there is a parallel increase in liability exposure. Even if the counselor is not directly employed by the professional, so that the tort doctrine of respondeat superior would not pertain, other ties could cause either a direct agency or an ostensible agency doctrine to attach. This is so even if a referred patient merely had reasonable cause to (mis)understand an apparent agency relationship. Billing must be precisely worded and coded. There are ethical, medical, and legal responsibilities to screen applicants and to monitor, formally supervise, and record a counselor's work. Standards of care are unclear or untested. Referral of a troubled patient to an uncredentialed assistant may convey trivialization to the patient; however, beware misrepresentation of expertise. Failure to diagnose underlying disorder is a risk. Protocol agreement defining the scope of the relationship and the scope of practice may help limit liability. Any economic arrangement or prescription of a particular counselor's services can lead to the doctor's being joined in a suit, especially because of the "deep pocket" theory. Clarification of liability coverage is therefore prudent.