AVOIDING LIABILITY BLOG

Procedural Due Process

January 2015

This term generally involves the basic legal principle that if an administrative agency of the government is going to take away a person’s right to practice his or her profession, the government must give adequate notice of its proposed action and an opportunity for the licensee to be heard. In licensing board actions, also referred to as administrative or enforcement proceedings, these rights to notice and an opportunity to be heard are critical. The timing of the notice, the required content of the notice, and the manner and extent of the opportunity to be heard will vary from state to state, and may also vary depending upon the particular violation involved. For example, in more serious cases, where public safety is deemed at serious and imminent risk, prior notice can be extremely short. The concept of procedural due process is also an important concept in cases brought by ethics committees of professional associations against their respective members.

While many mental health professionals may be familiar with various provisions of their respective codes of ethics relating to prohibited acts or behaviors, most are likely not familiar with, or interested in, the procedures that the particular association uses to investigate, resolve, or “prosecute” complaints. Again, the concepts of notice and an opportunity to be heard are paramount. Some state laws specify fair hearing procedures that govern not only hospital staff privileging actions, but professional society peer review proceedings as well. There are federal laws that govern these proceedings, but states may opt out of those requirements and enact their own requirements. Some have expressed concerns about the lack of fairness in professional association ethics proceedings because, among other things, the accused member may be scrutinized too harshly by competitors and because the opportunities for face-to-face interactions with the ethics committee are often limited.

With respect to the opportunity to be heard, this typically means that before final action is taken, the charged person is entitled to a hearing before a hearing officer (e.g., an Administrative Law Judge) in the case of a state regulatory body or, in an ethics proceeding, before an arbitrator or a panel of unbiased individuals who have not acted as an accuser, investigator, fact finder, or initial decision maker in the matter. The right to a hearing in licensing board actions may involve a variety of other rights that will be enumerated in law or regulation, such as the right to present and rebut evidence, the right to be informed of the procedures to be used by the agency, and the right to challenge the presiding officer for prejudice or bias. The hearing would typically be open to public observation and the decision would be in writing and would include a statement of the factual and legal basis for the decision. In the case of a professional association’s ethics committee proceeding, one must review state laws/regulations and those portions of the applicable code of ethics related to procedures in order to determine the rights of the accused member.

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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