Disciplinary Actions

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Avoiding Liability Bulletin – September 2011

…Licensing (as a mental health professional) by the state is a privilege, not a right. Once licensed, however, the license is in the nature of a vested property interest. Licensees work hard to obtain a license and licensees want to keep their licenses in order to earn a livelihood. Licensing boards are charged with the duty of protecting the public, and they have the authority to impose discipline pursuant to procedures and standards usually set out in law. Each state has its own system, and some states provide more “due process” protections for licensees than others. For example, some states may have a statute of limitations that applies to (and bars) “stale” complaints, while others may place no limits on the Board’s ability to pursue complaints involving actions or behaviors occurring many years earlier. There may be no statute of limitations for certain offenses, such as is typical with respect to procurement of a license by fraud or misrepresentation. If an alleged act or omission involves a minor, the limitations period may be tolled until the minor reaches the age of majority. Thus, such complaints might well be stale, but they will nevertheless result in an investigation and possible disciplinary action.

When a health care practitioner (hereinafter called “you”) is investigated by a licensing board for the first time, it is only then that it may be realized that everything you worked for, and all of the good that you have done and will do, and your very livelihood, is on the line. It is only then, that you may realize that the exposure you have as a result of a complaint from an angry patient is significant. It is only then that you may realize, especially because you did nothing wrong when working with this troubled patient, that you are up against the State of ________, with all of its power and virtually unlimited financial and human resources. It is then that you will want to know – what are my rights? How do I protect myself? Will I be treated fairly by the investigator? Will the investigator be on a search for the truth, or will the investigator be looking to “make a case?” Will I have an opportunity to defend myself? What are my “due process” protections?

I have spoken with many therapists, who, upon finding out about the awesome power of the state, have asked if their due process rights are as extensive as those possessed by criminal defendants. The short answer is “no.” In a disciplinary proceeding a licensee is generally entitled to “administrative due process,” and what that precisely means depends upon the particulars of state law. The basic tenet of administrative due process, however, is that the licensee is entitled to notice and a hearing. Beyond that, one must refer to the provisions of state law to fully and precisely answer the questions asked above.

When first notified of a complaint, practitioners ask whether or not they need an attorney. Some proclaim their “innocence” and think they can resolve the matter with a letter of explanation. When I was active as a criminal defense attorney many years ago, I would emphasize that when you are in fact innocent of any wrongdoing, that is the very time when you need an attorney. An innocent person going to prison is worse than a similar fate for a guilty person. Thus, in the context of disciplinary proceedings, it will come as no surprise that I generally have advised licensees to hire an attorney as early in the process as possible. There may be complaints that are so bizarre and preposterous, where the complainant is clearly not credible, that the practitioner may feel comfortable providing a simple explanation in order to dispose of the complaint. Of course, that is a matter of judgment for the individual practitioner based upon the totality of circumstances.

It must be understood that in a disciplinary proceeding, unlike in a criminal proceeding, there is no presumption of innocence and no jury of one’s peers. Additionally, and as mentioned in prior articles, the burden of proof on the state is not as great as the burden of proof in a criminal case. Thus, the state doesn’t have to prove you guilty “beyond any reasonable doubt.” Its burden of proof is generally either by a “preponderance of the evidence” or by “clear and convincing evidence.” Another advantage that the licensing board may have, depending upon state law, is that even after a favorable decision (for the practitioner) by an administrative law judge or a similarly titled official, the board may have the authority, at least to some degree, to non-adopt the administrative law judge’s decision. Licensees typically have the right to appeal an adverse administrative decision to a court of law.

I must caution that my comments will not necessarily apply in each state – because the investigative, notice, and hearing stages of such disciplinary actions and proceedings may vary in significant ways.


Richard Leslie

"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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