As a result of malpractice suits and legal actions, it is generally recognized that a professional relationship or even the perception that the relationship is a professional one constitutes the basis of the existence of legal duty to provide appropriate care for a client. The professional help giver, by the very nature of holding himself or herself out in practice, implies that he or she will conduct himself or herself in a skillful and responsible manner and will follow the dictates of that profession's code of ethics.

The issue of whether helping is contractual and thus a minimum duty of care is established rests with the courts' decision as to whether a "special relationship" existed that would be sufficient to create a "duty of care." Such a special relationship can certainly be created with the use of formal treatment contracts in which the "duties" of each party are specified (see Exercise 5.1). However, the establishment of a formal contract articulating the relationship between client and practitioner or the rendering of a bill and exchange of money for services is not necessary in order to provide evidence of a special relationship and a duty to care.

A special relationship between helper and client can be established as a result of implicit acts. Courts, for example, may determine that a special relationship and thus a duty to care was established by the helper's action of taking notes, scheduling formal appointments, and even advertising as one who can provide unique, helping services. These actions can be interpreted as reflecting an intent to render service and thus constitute a basis of establishing the intent to form a special relationship and thus a contract to provide the care. As with many areas of law and ethics, there is no singular court case or clear directive that determines what actions, beyond a formal contract, can be used to demonstrate an intent to form a special relationship and thus a duty to provide care.

While there has not been a single court definition and ruling that provides a universal standard regarding implicit contract or duty to care, numerous state rulings have begun to give shape to this contract of professional service. In what now stands as a classic case, the Supreme Court of Wisconsin (Bogust v. Iverson, 1960) ruled against the parents of a student,

Jane Dunn filed suit against the director of student personnel services at Stout State College. The parents alleged there was negligence, because the director failed to provide proper guidance or protection for the student, who committed suicide. In the ruling against the parents, the Wisconsin Supreme Court referred to the defendant as a teacher and not a counselor and as such reported no special relationship had been established. "To hold that a teacher who has no training, education, or experience in medical fields is required to recognize in a student a condition the diagnosis of which is in a specialized and technical medical field, would require a duty beyond reason" (Bogust v. lverson, 1960). A later ruling that suggested specialized training and credentialing were needed prior to the establishment of a special helping relationship and the duty to care was Nally v. Grace Community Church. In Nally v. Grace Community Church (1988), the parents of a 24-year-old, Kenneth Nally, sued the Grace Community Church and its pastors for negligence when their son committed suicide after receiving several years of informal counseling. Kenneth also saw secular psychologists and psychiatrists during these years, and following an unsuccessful attempt at suicide in 1979, his parents rejected the recommendations of a psychiatrist to have him committed. This recommendation was also made by one of the pastors of the church and similarly rejected. The California Supreme Court ruled in favor of the church and its pastors because it found that there was no duty of care that was breached by them and no special relationship that would create such duty. In this case, the California court made a distinction between non-therapists, counselors, and professional therapistssuch as psychiatrists or certified psychologists and counselors. Since the pastors were non-therapists without the requisite special relationship, the court did not find or impose the duty of care. These two rulings appear to point to the essential need to be recognized as a professional helper as defined by one's credentials, such as licensure, as the basis for a special relationship and to identify that duty to care has been established. However, in Eisel v. Board of Education of Montgomery County (1991) new legal precedent was set.

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