Avoiding Liability Bulletin – February 2007
… Each licensed mental health professional and other licensees are governed by a licensing law of some kind that will usually define the functions of licensees and prohibit anyone not so licensed from performing those functions for remuneration of any kind. Practitioners must be familiar with the scope of the license and must not forget that they may be licensed to treat, for example, mental and emotional conditions rather than physical ailments. I recall a licensed mental health practitioner who, in defense of charges of sexual misconduct and gross negligence, explained that he massaged the patient’s shoulder and back because she complained of physical pain in that area. One of the findings against the practitioner was that he was practicing outside the scope of his license – treating physical pain by touch/massage.
Mental health practitioners will occasionally engage in other actions that raise scope of license questions. For example, I have spoken with several practitioners who have expressed opinions and made recommendations to patients concerning the medication being prescribed by the physicians who are also seeing the patients. This gets into dangerous territory (practicing medicine without a license), even where the licensee has had coursework and training in psychopharmacology. Another example of a possible scope of license problem for practitioners involves suggestions or recommendations to patients about dietary supplements and related nutritional advice to deal with psychological problems. Care must be taken to have or acquire a thorough understanding of the limits to the scope of the license – no matter how competent one may be in a given area of rendering services.
Of particular concern is the issue of diagnosis and treatment of mental disorders, including severe mental disorders. Does your particular license allow such practice? Will you have difficulty proving that you have such authority if questions are asked by some insurer who is questioning whether or not there was appropriate billing for services rendered? What would the licensing board say if it were asked such questions by an insurer? It is important that practitioners be sure that they have the legal authority to engage in such activity. These can be thorny areas, depending upon the applicable state law and the kind of licensee involved.
ABOUT THE AUTHOR
"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.