by David J. Carter and Renata Grossi

Introduction

Contracts are everywhere in counselling. From their role in governing the discreet transaction of providing a service, to meeting legal regulatory requirements around consent, data storage and privacy — just to name a few.

In a study conducted in 2023, we interviewed members of the Australian Counselling Association about their use of contracts. These interviews revealed that “contract” is a significant meaning-making tool with a potential to bring visibility, safety, confidence, respect and ultimately a sense of professionalism to one’s work.

Ethics approval ETH24-10287. All names used are pseudonyms.

This study was partially supported with funds from the UTS Law School (LRGS), the UTS Law Health and Justice research cluster, and the Socio-Legal Studies Association of the UK (small grants scheme).

With thanks to the Australian Counselling Association for general advice and assistance recruiting participants. With thanks for research assistance to Bonnie Faulkner.

The language of business

At the most basic level, contracts are the vehicle for the provision of a service. The contract governs things like appointment time, fees, and how to handle cancellations. In this way, contracts govern the delivery of a service and speak the language of business. Interviews did reveal some discomfort with the business-related aspects that a contract facilitated, describing these “business” contracts as “awkward”, “cold” and “unkind”. This was dealt with by keeping the process of entering into a contract for service separate from, and outside of, the therapy space.

The language of business

Contracts were not just for business. Contract were used in therapeutic work and to support goal setting and achievement. While the counselling contract was understood predominantly in terms of providing a process rather than an outcome, many counsellors spoke of the contract also being for the delivery of a therapeutic goal. The starkest example was a “safety”, “no-harm” or “no-suicide” contract.1 Such contracts were considered effective because as one counsellor put it:

Getting [a client] to commit to a strategy just by verbal agreement is not going to work. … contracting sets out a much more clear process that they will hopefully utilise when they leave the session, and will continue to follow until the next session. Contracting works very well because they make a promise to you … helps to bring clarity to it … puts some legs on it. [George]

More generally, contracts were considered effective therapeutically because they speak to a particular cultural imagination of a mutual agreement, freely entered and consented to, and therefore binding. This resonates with the dominant liberal imagination of contract as an egalitarian tool. In that construct, contracting is a negotiation between two equal parties each with their own freedom to contract for the realisation of a self-interested goal. This contrasts with a model, often seen in consent settings, where agreement is based on status and unequal relationships. This is particularly evident in the provision of health care where the paradigmatic relationship is that between the doctor and patient.

Ethics and safety

For the counsellors we spoke to, contracts are also a means by which ethical standards are met. Meeting these standards creates a sense of safety for the counsellors, for the clients and ultimately for the profession. One interviewee spoke of them creating peace of mind. Putting it rather starkly saying that: “If there is a complaint against me I want to be sure that I have covered the bases … I don’t want to go to jail” [Sophie]. The safety that compliance brings is extended to the profession as a whole. As one counsellor put it:

It means you keep out the fly-by-nighters, the ones that are not ethical, the ones that are there to rip people off. … because anyone can put a shingle out these days and say I’m a counsellor. [George]

A contract fulfils this functional space within counselling, but its impact is more fundamental when we consider further its meaning-making capacity.

Boundaries and emotions

For many counsellors, what emerged from a formal contractual relationship were boundaries. Emotional boundaries are as essential as they are difficult. Counsellors interviewed in this study described their work as deeply caring and intimate, and many saw themselves as often being a stand-in for a best friend or a caring parent. Thus, the relationships between counsellor and client were described as being characterized by “warmth”, “trust”, “safety”, “empathy”, “respect”, “care” and even “love”. For example, counsellors spoke of “standing beside of a client being full of emotions”. [Nora]

Many recognised the difficulty of defining boundaries in such a context. In these cases, the contract became the device by which the emotional nature of the relationship could be defined, set boundaries and contained. For example, counsellors spoke of using the contract to manage client’s expectations around emailing and phone calls outside of appointments; on managing encounters out in the community; and on gifts. But the contract was also used to change the language around the service itself to contain the emotional content to the therapeutic goals. For example, counsellors said a contract reflected that “it’s not just a little chat” [Terry], [sessions were] not “wishy washy” [Emma], or “loosey goosey” [Terry]. And as one counsellor put it, counsellors need to convey to clients that “I am not your friend” [Nora].

The transformative nature of the contract

Counsellors were asked to reflect at several points during the interviews on what the contract meant to the counselling relationship, and to them personally. It was during these conversations that the contract emerged as a powerful tool. Most obviously contract was seen as a means by which a relationship of care can be transformed from an informal to a formal one.

[A] formal written document .. this is something I take seriously, that I work under a professional sense of industry, even though it is unregulated … It provides that formality [in contrast to] “so we’re going to get together. We’re going to talk”. And then you’re going to pay me. It’s all going to be fine. [Terry]

From this formality many other important things may flow. The language of contract is the medium that creates the possibilities for counsellors to become confident professionals, to demand respect, and as earlier discussed, create safety and trust in their clients. Interestingly, several counsellors equated the contract with wearing a suit or a uniform and thus performing their professional identity.

Conclusion

In the process of this enquiry, our findings revealed some anxieties and some challenges in the provision of counselling services. One is to do with the maintenance of an ethic of care in a commodified world of mental health care.2 Another is to do with the delivery of a professional service in a sector which is self-regulated.3 And yet another is the necessary containment of the very emotions that are needed to be effective in the delivery of the service.4

We approached this study expecting a collision of discourses and of different stories about contract. On the face of it, contract which we imagine is planted firmly in the market of cold, private, rational self-interest and counselling which we imagine in the world of care, relationships and emotion would be at odds with each other. But our study tells another more complicated story5  “ice cold” discourse of contract can support highly charged emotional care.

References

1. We did not see any examples of these being used but see templates from the Samaritans UK Creating a 'safety plan' | Samaritans

2. See Pellegrino, E. D. (1999). The Commodification of Medical and Health Care: The Moral Consequences of a Paradigm Shift from a Professional to a Market Ethic. Journal of Medicine and Philosophy, 24(3), 243–266. https://doi.org/10.1076/jmep.24.3.243.2523

3.  See Beel, N. (2024). The Australian Counselling Profession in 2030: An Educator’s Perspective. Psychotherapy and Counselling Journal of Australia, 12(1). https://doi.org/10.59158/001c.94532

4. See Arlie Russell Hochschild (2012) The Managed Heart, University of California Press

5.  This was a phrase used by one of Renata Grossi’s students to describe contract law in another study on the pedagogy of emotion.

Biography: David J. Carter and Renata Grossi

David J. Carter is a Scientia Associate Professor based in the Faculty of Law & Justice at UNSW and a practising psychotherapist. His research is focused on the field of medical and health law.

Renata Grossi is a senior lecturer in the Faculty of Law at the UTS where she teaches and researchers in contract law and law and emotion.