Regulatory Boards – Enforcement

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Avoiding Liability Bulletin – June 2016 

I was recently reading some proposed rules – more specifically – “disciplinary guidelines” and “uniform standards related to substance abusing licensees” – promulgated by the California Board of Psychology. Two provisions caught my eye. What is your first reaction or thought when you read each of the items? My brief thoughts and comments appear below.

1) In the introduction to the guidelines, the Board describes consumers of psychological services (I assume that means clients or patients) as a “particularly vulnerable population.” The Board describes itself as a consumer protection agency protecting this “particularly vulnerable population” from unsafe, incompetent, or negligent psychologists.

2) In the introduction to the uniform standards, it states that if the grounds for discipline involve drugs or alcohol, the applicant or licensee “shall be presumed to be a substance abusing licensee or applicant.”

With respect to item # 1, patients of psychologists are described as a particularly vulnerable population. Clients/patients are described not as potentially vulnerable or vulnerable, but particularly vulnerable. In fact, patients and clients (described by the Board as “consumers of psychological services”) come from all walks of life with all manner of strengths, weaknesses, and problems – much like the patients of physicians. The needs of the individual consumer and the services provided will vary widely. In fact, patients may or may not be vulnerable or particularly vulnerable. With all of the attention being paid (properly so) to removing or lessening the stigma from those who seek or receive counseling, psychotherapy, or mental health treatment, classifying clients or patients so generally as a particularly vulnerable population does not help to remove or lessen the stigma – it endorses and promotes it.

Viewed from the perspective of protecting the licensee from unfair or heavy-handed enforcement, such a generalization in a rule or regulation (albeit in introductory language) contributes to establishing the mindset that all patients are particularly vulnerable – merely because they seek psychotherapy or the services of a psychotherapist. Think about how the licensing board may view both you and a client who files a complaint. When you are the person about whom a complaint is filed, or the suspected wrongdoer approached by the licensing board, the government is investigating you. Government (the state agency) is there to protect the public from you – and that mission sometimes leads to unjust or unnecessary enforcement actions against licensees, especially when the government’s mindset is that the complainant is a particularly vulnerable person.

With respect to item # 2 (the presumption of being a substance abusing licensee or applicant), the opportunity for unfair treatment of licensees is increased substantially. The presumption, unless successfully rebutted, subjects the licensee to a whole host of oversight and required treatment and drug testing – considered by some as draconian. One conviction of a misdemeanor for possession of a small amount of marijuana, or one reckless driving conviction, no matter what the circumstances, will likely lead to the presumption that the licensee is a substance abusing licensee. While this presumption may be rebutted, I question its necessity or appropriateness. The licensing board might argue that this particularly vulnerable population (consumers of psychological services) must be protected from substance abusing licensees and that the presumption better protects the public. Others (including me) think that the licensing board should be guided by the facts involved in each particular case, and that such a presumption is unnecessary and can easily lead to unfairness.

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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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