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Recovered Memory Therapy is Dangerous for Therapists as Well as Patients

Recovered memory therapy continues to be a controversial topic, with experts debating about whether it is valid. As a legal matter, this controversy has slowly spilled over into an increased risk of liability for the therapist who chooses to use the technique. More and more states are holding that parents of children who recover memories of sexual abuse can sue the child’s therapist because the therapist has helped to create false allegations against them. Michigan is the latest jurisdiction to affirm the right of a child’s parent to sue the child’s therapist. 1

The patient, “K” began seeing a licensed professional counselor in Michigan after her family discovered that she had been sexually abused by a family friend. After the counseling began, however, K had a first-time revelation that her father had been sexually abusing her since she was five years old. K’s parents maintained that these memories were patently false.

The therapist reported the suspected sexual abuse to the appropriate authorities, who initiated an investigation. After both the Department of Human Services and the local police completed an investigation, no further action was taken, nor were charges brought, apparently due to lack of any substantiating evidence.

K’s parents then sued the therapist, claiming that the therapist had treated their daughter with “recovered memory therapy.” The therapist tried to get the suit dismissed, arguing that she did not have a duty to the parents, who were not her patients, but only to K. (Obviously, if the patient herself thought that the memories were false, the patient could file a lawsuit for the pain and suffering that having such memories would cause.) The question for the court was whether a mental health professional did have such a duty. Ultimately, the court ruled that mental health professionals in Michigan owe a duty of care to third persons who might foreseeably be harmed by the professional’s use of techniques that cause his or her patient to have false memories of sexual abuse. Specifically, the court held only that such a duty extended to the patient’s parents, leaving for another day whether the duty should be extended to other persons who might foreseeably be harmed, such as a pastor or teacher.

The Michigan Supreme Court agreed to review this decision. But just recently, after oral argument was held in the case, the Court changed course and decided not to weigh in on the debate. The court noted in its order: “we are no longer persuaded that the questions presented should be reviewed by this Court.” 2 That means the lower court’s ruling stands as the law in Michigan.

Michigan is not the only state to recognize that therapists may owe a duty to non-patients in certain contexts. States like Washington, Wisconsin, New Hampshire, and Colorado have all noted that mental health professionals owe a duty of care to a patient’s parents, arising from the treatment of the patient. But the Michigan case contained an extensive discussion about the controversy surrounding recovered memory therapy in the context of sexual abuse, and its decision seemed to turn on the dangers it deemed inherent in such therapy, obviously seeing it as a problematic approach. For now, at least in Michigan, the courts have essentially cautioned therapists in the state to use it “at your own risk.”

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1 Roberts v. Salmi, 866 N.W.2d 460 (Mich. App. 2014).
2 Roberts v. Salmi, No. 150919 (Mich. May 6, 2016).
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