A Tale of Two Supervisees
by: David G. Jensen
Attorney at Law
It was the best of times for the supervisor, and it was the worst of times for the supervisor1
Why? The BBS had accused the supervisor of committing unprofessional conduct by being grossly negligent when supervising two interns, and the Administrative Law Judge ("ALJ") who presided over the cases decided both of them on the same day. It was a good day because the ALJ ruled in the supervisor's favor in one of the cases, but it was a bad day because the ALJ ruled against the supervisor in the other one.
In deciding what went right versus what went wrong during the supervision of these two interns, the ALJ helps us to understand some of the characteristics of "good" and "bad" supervision. I say some of the characteristics of good and bad supervision because these cases do not cover all of the possible events, whether good or bad, that may occur during the course of a supervisory relationship. These relationships are much too complex for that. However, these two cases create some of the pieces, albeit important ones, of a puzzle that portrays good and bad supervision. In general, good supervision is ethical and legal and contributes to the well-being of the patient and the successful maturation of a trainee or intern as a therapist; by contrast, bad supervision is unethical and maybe illegal, can harm patients, and can lead to the disciplining of a supervisor by the BBS for committing unprofessional conduct. These cases help us discern what reasonably competent supervisors do in supervision. These cases also illustrate how the internal machinery of the administrative law process works.
Before we examine what went wrong in case one versus what went right in case two, let us review some key regulations and laws pertaining to the supervision of trainees and interns.
A Supervisor's Responsibilities Under California Law
Many laws and regulations affect supervisors, interns and trainees, but when it comes to actually supervising such individuals, there are few laws and regulations on this particular subject. In a nutshell, supervisors are required to "ensure that the extent, kind, and quality of counseling performed is consistent with the education, training, and experience of the intern or trainee.2" This idea of consistency seems to be used in two senses. In one sense, it seems to mean that supervisors have an affirmative obligation, what a lawyer would call a legal duty, to ensure that interns and trainees are not given cases beyond their level of competence. But, in another sense, it also seems to mean that supervisors are supposed to be monitoring the cases given to trainees and interns to ensure that the trainees and interns are rendering services at the level of their competence and not below the level of their competence.
Moreover, supervisors are also required to "monitor and evaluate the extent, kind, and quality of counseling performed by the intern or trainee by direct observation, review of audio or video tapes of therapy, review of progress and process notes and other treatment records, or by any other means deemed appropriate by the supervisor.3 This means that there are many ways to supervise a trainee and intern and a good supervisor utilizes at least some of them at one time or another during the course of the supervisory relationship. This also means that the supervisor, not the intern or trainee, is responsible for selecting the methods of supervision.
Overview of the Administrative Law Process
In the cases that follow, the patients alleged that they had been harmed by improper supervision. The patients felt aggrieved, and they turned to the BBS for redress of their grievances, which they initiated by filing complaints with the BBS. Once a complaint has been filed, the BBS must then determine whether the complaint merits investigation by the Department of Investigations. Not all complaints are forwarded to the Department of Investigations for investigation, however. In some cases, for a variety of reasons, including insufficient evidence of wrongdoing, the BBS decides not to forward complaints to the Department of Investigations and these matters are closed or addressed in another manner.
If the BBS does refer the complaint to the Department of Investigations, such department will investigate the complaint and submit a report of the investigation to the BBS. After reviewing the report, the BBS will then decide whether to commence disciplinary proceedings by filing an accusation of unprofessional conduct against the person named in the complaint. In the cases that follow, the supervisor was accused of committing unprofessional conduct in the course of supervision. The charge of unprofessional conduct means that the supervisor has committed acts of gross negligence during the supervision, or that the supervisor has recklessly caused harm to the patient by supervising improperly.
At this juncture the supervisor could have resolved these accusations by entering into a Stipulated Settlement with the BBS, which would have required the supervisor to agree to mandated discipline. However, in these cases the supervisor wanted to have his or her "day in court" so the supervisor elected to have the complaints heard by an ALJ in an administrative law hearing.
An administrative law hearing is like a trial, although the more formal rules of evidence and civil procedure are relaxed. At the hearing the BBS prosecutes the case against the person named in the accusation. The BBS must prove by clear and convincing evidence to a reasonable certainty that the person accused of committing unprofessional conduct has actually done the things that constitute unprofessional conduct. If the evidence is clear and convincing to a reasonable certainty that the person has committed unprofessional conduct, the ALJ will decide the case against that person. However, if the evidence is not clear and convincing to a reasonable certainty that the person has committed unprofessional conduct, the ALJ will decide the case in favor of that person.
During the cases that follow, the central issues were whether the supervisor was grossly negligent or reckless in his or her supervision of the interns. By gross negligence, the law means an extreme departure from what a reasonably competent supervisor is supposed to do under similar circumstances. 4 It amounts to doing things while supervising that no reasonably competent supervisor would do, or failing to do things that a reasonably competent supervisor would do.
It should also be pointed out that the patients filed separate accusations against the interns themselves for the unprofessional conduct that the interns committed and those accusations were separately adjudicated. The cases discussed here are concerned only with the actions of the supervisor within the course and scope of his or her supervision of the two interns.
A Tale Of Two Supervisees:
Case 1: What Went Wrong?
In case 1, supervisor hired "Randy" as an intern and Randy was assigned "Mary" as a patient. In time, Randy and Mary's professional relationship became personal. Randy saw Mary four to five times a week, although the record is not clear about whether these were personal or professional interactions; he also saw members of her family, but again the record is not clear as to whether these were personal or professional interactions. Randy and Mary engaged in a sexual relationship, and Randy billed for therapy sessions that never occurred. Although we do not have all of the details as to why, this house of unethical and illegal cards came tumbling down and Mary was allegedly harmed by Randy's actions and supervisor's unprofessional conduct.
And, what was the supervisor doing while all this was happening?
Not much of anything. The supervisor did meet with Randy on a weekly basis to review the progress of his patients, but the quality of the supervision was poor. The supervisor's style consisted of simply listening to case reports from supervisees. The supervisor never reviewed Mary's clinical file; in fact, the supervisor assumed but was not sure whether Randy even kept a client file for Mary. The supervisor never had Randy audiotape or videotape a session as a way of assessing Randy's clinical skills. In fact, the supervisor had trouble recalling that Mary was ever discussed much during supervision.
In deciding the case against the supervisor, the ALJ concluded that the supervisor had been grossly negligent, and hence violated the standard of care when supervising Randy by:
1. Failing to exercise "vigilant watchfulness" over Randy.
The ALJ opined that although supervisors are not required to assume that their supervisees will break the law, they are required to assume that they will make errors and mistakes in judgment when counseling, after all they are just learning to be therapists. But, supervisors need to ensure that such errors and mistakes in judgment in counseling do not lead to patient harm. A supervisor must do more than teach; the supervisor's responsibility is to oversee, to monitor, and to actively help a supervisee grow in the profession through the mistakes that they are bound to make.
In this case, the supervisor also failed to realize that the intern was billing for counseling sessions that never occurred. That is something that should not occur because trainees and interns are employees, not employers. Employers should know what is going on with billing and reimbursement issues because they are the owners of practices or administrators of agencies. Thus, part of "vigilant watchfulness" includes being aware of issues involving billing and reimbursement.
Moreover, it seems that the supervisor was also unaware that Randy was counseling members of Mary's family. Certainly, another part of "vigilant watchfulness" includes knowing and approving of the individuals that interns and trainees take on as clients. Did the intern think about possible dual relationship considerations? Conflicts of interest? Therapist/patient loyalty issues?
2. Failing to do more than simply listening to Randy give case reports of his work with Mary.
The ALJ concluded that a reasonably prudent supervisor uses all of the supervision tools available to him or her when supervising. Such tools include direct observation, review of audio or video tapes of therapy, review of progress and process notes and other treatment records, or any other means deemed appropriate by the supervisor. 5 The ALJ also concluded that a reasonably prudent supervisor would audio or videotape at least one session to use as an analytical tool for assessing the supervisee's progress as a therapist.
3. Blindly accepting Randy's reports about what was occurring during sessions.
According to the ALJ, a supervisor is supposed to pay attention and exhibit a degree of skepticism about the reports that the supervisor is getting from his or her supervisee. This does not mean that the supervisor is supposed to distrust his or her supervisees because trust is the mortar that holds the supervisor-supervisee relationship together. Rather, the supervisor should be aware that trainees and interns are inexperienced and that their perceptions can be erroneous and their methods inappropriate. Consequently, part of being a good supervisor is inquiring about the clinical perceptions of supervisees and the methods such supervisees are using in their sessions with clients.
A Tale Of Two Supervisees:
Case 2: What Went Right?
In case 2, supervisor hired "Rodney" as an intern. Rodney had impeccable credentials, both in terms of solid academic work and personal references. Rodney conducted himself in a very knowledgeable and confident way. He was an impressive individual, and he gave others the feeling that he knew what he was doing. He radiated confidence, and he exuded competence. He seemed a perfect fit for supervisor's practice.
Supervisor assigned "Jill" to Rodney as a patient. Jill had Borderline Personality Disorder, and, to say the least, she was a very challenging patient. But, Rodney had experience working with Borderline's and he was keenly interested in working with this population.
Supervisor met with Rodney each week for a minimum of one-hour, and they discussed problems that Rodney had encountered in the previous week's session and they discussed approaches to be used in the upcoming week's session. Rodney kept chart notes, and his supervisor reviewed such notes. When difficult issues concerning Jill's treatment arose, Rodney was very persuasive in demonstrating that he had control of a challenging patient. In staff meetings with all of the agency's therapists, Rodney freely participated and he was considered to be, by his peers, very insightful into the issues affecting his patients. He was also generally thought of as someone who performed competent work.
Unbeknownst to all concerned, however, Rodney had lost control of Jill's treatment.
To assist Jill with remembering events from her past, Rodney and Jill began taping their sessions. Rodney did not inform his supervisor that he was taping these sessions; nor did he inquire of his supervisor about the advisability of taping the sessions. The tapes exhibited therapy that had become highly sexualized, both in terms of physical embraces and the content of discussions, although Rodney and Jill never had sexual intercourse. The tapes also evidenced that in the battle between Rodney and Jill for control of the sessions, Jill "won" and her "victory" caused her serious harm.
Although it is possible for an intern to have the requisite degree of skill, education, and training to work competently with borderline patients, in light of a supervisor’s duty to ensure that the extent, kind, and quality of counseling performed is consistent with the education, training, and experience of the intern or trainee, supervisors should think about these issues before assigning a borderline patient to an intern.
Interestingly enough though, in case two, despite the fact that Jill was harmed by the intern's actions, the ALJ concluded that there was not clear and convincing evidence to a reasonable certainty that the supervisor had been grossly negligent or reckless in his supervision of Rodney. To be fair, however, it must be pointed out that the ALJ believed that the successful prosecution of this case by the BBS was compromised by the extraordinary length of time, i.e., many, many years, that had passed between the occurrence of the events giving rise to Jill's complaints and the actual adjudication of those complaints by the ALJ. In other words, had Jill's complaints been adjudicated by the ALJ sooner, the result may have been different. Nevertheless, Jill's complaints are still worthy of study because they help delineate the contours of good supervision.
In the accusation concerning Jill's case that the BBS filed, it alleged that the supervisor was grossly negligent in assigning her case to Rodney because Rodney was unqualified and unfit to counsel her, presumably because she was a borderline patient and he was just an intern. The ALJ concluded otherwise, however. The ALJ stated that it was not below the standard of care for the supervisor to assign the case to Rodney. However, this does not mean that supervisors have free reign to assign borderline patients, or any patients for that matter, to trainees and interns. The law requires supervisors to ensure that trainees and interns are not given cases beyond their level of competence. Moreover, the ALJ stated that this question would probably be answered differently today, most likely because the laws and regulations concerning these issues have evolved over time, but given the facts of this particular case as presented to the ALJ and the state of the law at the time the services were rendered, which, again, was many, many years before the matter was heard by the ALJ, the ALJ concluded that it was not grossly negligent for the supervisor to assign the case to Rodney. He did have experience with borderlines, and he was very good at creating the illusion that he was competent to handle Jill's case. In supervision, Rodney said and did all of the right things that furthered the impression that he was handling Jill's case in a reasonably competent manner. And, there was no independent evidence available that would have alerted the supervisor to the true nature of Rodney and Jill's relationship. The true nature of their relationship was being hidden from the supervisor.
Although it is possible for an intern to have the requisite degree of skill, education, and training to work competently with borderline patients, in light of a supervisor's duty to ensure that the extent, kind, and quality of counseling performed is consistent with the education, training, and experience of the intern or trainee, supervisors should think about these issues before assigning a borderline patient to an intern. If the supervisor decides to assign such a patient to an intern, however, the supervisor's rationale for the decision should be documented thoroughly in the patient file.
In the accusation concerning Jill's case, the BBS also alleged that the supervisor was grossly negligent because the supervisor failed to adequately supervise Rodney in his treatment of Jill, but, again, the ALJ concluded otherwise. In the supervisor's supervision of Rodney, the supervisor did all of the right things. The supervisor met with him on a weekly basis; the supervisor reviewed the case file; the supervisor discussed concepts, problems, and approaches to be used in Rodney's sessions with Jill; Rodney seemed to have a firm grasp on the particular issues of Jill's case. In short, the supervisor seemed to exercise "vigilant watchfulness" over Jill's case. I say seemed to exercise vigilant watchfulness because the supervisor was actively involved with the supervision of the appearance of Jill's case and not the reality of her case. The reality of her case was a secret, one known only to her and Rodney. The ALJ decided in the supervisor's favor in this case, in part, because there were no compelling facts to place the supervisor on notice that Rodney was lying about the nature of his relationship with Jill. Factually this is a different situation than we had with Randy and Mary. In their case, the intern was billing for sessions that never occurred and the intern entered into therapist-patient relationships with individuals that the supervisor did not know about. These are things that a supervisor should know; these are facts that were readily discoverable by the supervisor had he or she been watching the supervisee vigilantly. In Rodney and Jill's case, however, the supervisor could not readily discover the truth about their relationship because this information did not exist in the client records; it was intentionally being kept from the supervisor's discovery.
In these two administrative law proceedings two clients alleged that they had been harmed because their cases were supervised improperly; moreover, the BBS formally accused the supervisor of committing unprofessional conduct within the course of such supervision. However, after listening to the evidence, the ALJ concluded that in one case the supervisor had committed gross negligence and in the other case the supervisor had not committed such negligence. The unique facts of these cases are important because they help us define some of the characteristics of good and bad supervision. Again, this is not meant to be the definitive account of good supervision, but based on these cases, a reasonably competent supervisor:
Exercises "vigilant watchfulness" over the cases that are assigned to the supervisor's trainees and interns;
Is aware of who is being billed for the services that trainees and interns provide and how often the clients are coming in for treatment;
Is aware of who trainees and interns take on as clients and considers the potential for dual relationship and conflict of interest issues;
Uses the tools available for supervising trainees and interns, including occasional audio or video-taping;
Is clinically skeptical about the trainee's or intern's work with clients and demonstrates such skepticism by inquiring about the clinical perceptions of supervisees and the methods of treatment used by supervisees in their sessions with clients.
Lastly, assuming a patient files a complaint against you for committing unprofessional conduct, whether for improperly supervising or otherwise, do not panic. Although it may seem like it, the world is not really ending. The trouble may go away, or you may be able to extricate yourself from it. For instance, the BBS may decide not to investigate the complaint, or the investigation may reveal that it would be impossible to prove beyond a reasonable certainty that you committed the acts that the patient has accused you of committing. Moreover, assuming there is an administrative law hearing, you may win because you acted as a reasonably competent supervisor and not as a grossly negligent one. Of course, should you receive any communications from the BBS regarding the possible commission of unprofessional conduct by you, you may contact CAMFT for guidance.
This article appeared in the September/October 2004 issue of The Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.