AVOIDING LIABILITY BLOG

Scope of Competence

February 2007

… Licensing laws, regulations, and/or ethics codes will typically contain provisions that prohibit practitioners from engaging in practices or activities that are beyond the scope of their competence, as established by their education, training and experience. These rules typically leave it to the judgment of the individual practitioner to determine whether or not he or she possesses sufficient skills and abilities to engage in the activity. Even if competent, however, one may be prohibited from doing something because of the applicable scope of license. Physicians have the broadest scope of license of all health practitioners, but the rules about practicing within the scope of their competencies limit their activities. Although physicians can typically practice psychotherapy within the scope of their license, most do not do so because it is not within the scope of their competence. Likewise, not all physicians perform surgery even though it may be within the scope of their license.

It can always be alleged by a disgruntled patient or client that the practitioner was not competent to do what he or she did. For instance, while it might be within the scope of the license for certain mental health licensees to administer and interpret psychological tests, it may not be within the scope of their competence. In such a lawsuit, the patient’s attorney will surely question the licensee about what coursework, what experience, and what education qualified him/her to perform the tests involved. Or, suppose that a practitioner used hypnosis or practiced hypnotherapy (assuming such work was within the scope of the license) while treating a patient. Again, a patient’s attorney may try to show that the practitioner did not have the requisite experience, education and training to perform such functions.

When therapists and counselors are first licensed, they typically have self-imposed limits regarding what they feel comfortable doing in their professional practices. As time goes on, they may want to expand their practices into new areas and new patient populations. This is part of the process of becoming a seasoned practitioner. How do they do this without violating the rule about not practicing outside the scope of their competencies? They read books, take coursework in degree programs, attend workshops and seminars, get supervision, and consult with those who have expertise in the area. It is important to be a good record keeper with respect to these kinds of activities so that if ever questioned, practitioners can demonstrate that they expanded the kinds of cases they handled in a responsible manner.

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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