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The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.
Civil liability, disciplinary actions, and ethics complaints. What is the Potential for Recourse Against a Therapist
What is the Potential for Recourse Against a Therapist? The California Therapist January/February 2001 Mary Riemersma, MBA (Former CAMFT Executive Director) Reviewed November, 2022 by Alain Montgomery, JD (CAMFT Staff Attorney)
This article is written to assist therapists in understanding the various avenues of redress that a patient may take if the patient believes he or she has been aggrieved by the therapist. Hopefully, most therapists will not have a “need” to be intimately familiar with these details. But, should you find yourself in the situation where you are the subject of a patient’s complaint or other action against you, or you merely wish to be knowledgeable about the various avenues of redress and to understand how the “system” works, read this article carefully. Remember, no matter how cautious you are or how defensively you practice, you may become the target of some action if the patient is unhappy with the services he or she has received. Generally, however, action occurs when a patient believes he or she has been the subject of illegal, irresponsible, unprofessional, or unethical treatment by a therapist. In such a case the patient may pursue one or more of the following actions:
The therapist, when a party to one or more such actions, must have an understanding of the procedures followed for each action in order to appropriately respond to the situation.
Civil Actions/Lawsuits Generally, a civil action or lawsuit is filed to seek reimbursement and/or compensation for alleged damage or injury to a patient. The potential for large awards for damages are why therapists carry malpractice or professional liability insurance. The therapist who has knowledge of or believes he or she may be the target of a lawsuit by his or her patient should immediately contact his or her insurer. The insurance company will appoint counsel to defend the therapist in the lawsuit. A lawsuit or civil suit is designed to make the plaintiff (patient) whole. This goal is accomplished by imposing damages on the alleged wrong-doer (therapist). There are two types of damages that may be imposed in cases involving therapists:
Compensatory damages are to compensate the patient for his or her losses. Punitive damages punish the therapist in an effort to prevent the therapist from engaging in other wrongful acts.
Damages can range from a few thousand to several million dollars. However, non-economic damages in suits based on professional negligence are capped at $250,000.1 The therapist will be liable for damages if the jury believed the conduct occurred in light of a “preponderance of the evidence”—simply put, whether it is more likely than not that the conduct occurred. Such actions typically move very slowly and could easily take a year or more before a settlement or judgment is rendered.
Keep in mind that, according to California law, most settlements or judgments that result from a therapist’s commission of a crime, or negligence, error or omission in practice, or his or her rendering unauthorized professional services, are to be reported to the Board of Behavioral Sciences. The law provides that following a judgment against a licensee for damages in excess of $30,000, that judgment is to be reported to the BBS by the clerk of the court that rendered the judgment. This report is to be sent within ten days after such judgment is rendered.2 In addition an insurer who provides professional liability insurance is required to send a complete report to the BBS as to any settlement or arbitration award over $10,000.3 This report is to be sent within thirty days after service of the arbitration award. The licensee is required to send to the BBS such a report for any settlement or arbitration award over $10,000, if the therapist does not have professional liability insurance.4 Similarly, this report is to be sent to the BBS within thirty days after service of the arbitration award. Thus, the licensing board is noticed regarding such occurrences, and may take action as they deem appropriate.
What the therapist can do The first rule for the therapist is to practice defensively to reduce the likelihood of being sued. However, no matter how defensively one practices, one is not necessarily immune from adverse actions. Persons may bring civil suits for any reason whatsoever. Persons may allege anything, whether factual or not. Liability on the part of the therapist depends upon the allegations, the evidence supporting the allegations as uncovered in discovery, and the testimony of the parties involved and other experts. As of January 1, 2014, when a demand for settlement or offer to compromise is made on a patient's behalf, the demand or offer shall be accompanied by an authorization to disclose medical information to persons or organizations insuring, responsible for, or defending, the professional liability of the therapist.5
Therapists can improve their defensive posture by using good judgment in the treatment of patients, keeping thorough records, regularly engaging in consultation with clinical and legal resources, and practicing in a manner that is consistent with the standards of the profession.
Complaints filed with the BBS A complaint may be filed by anyone and the Board will review each complaint, regardless of its source. All complaints must be submitted in writing and must be signed by the complainant. When a complaint is filed, the enforcement division of the BBS will assess the seriousness of the allegations. If the complaint appears questionable or a minor violation, an enforcement analyst may choose to send the therapist about whom the patient has complained a letter asking the therapist to respond to a number of questions. This process is considered to be an “informal inquiry.” The therapist will generally be required to respond within a specified period of time, usually thirty days. The therapist who has good reason to do so, may request additional time to respond. In addition, the Board will usually attach a “Release of Information for Complaints,” signed by the patient, authorizing the therapist to respond to the Board’s inquiry. Therapists should be cautious to verify, prior to responding, that “releases” have been signed by each individual who participated in the therapy.
Therapists are also encouraged to seek consultation from respected clinical and legal resources, including CAMFT, prior to sending their responses to the BBS. Sometimes therapists, in their zeal to respond, provide information that exacerbates the Board’s concerns, rather than setting aside concerns that they may have engaged in unprofessional conduct. Should the therapist’s response support the premise that his or her actions were reasonable under the circumstances and his or her conduct was professional, the Board will close the file and no further action will be taken.
If, on the other hand, the rationale expressed by the therapist falls short of making a case for professional conduct, the Board may decide to implement their “cite and fine” capability, or they may proceed to a more rigorous investigation of the complaint, which may then result in an “accusation” being filed against the practitioner who allegedly engaged in unprofessional conduct.
Understand, however, that the Board is under no obligation to informally write to the therapist seeking a response to the patient’s allegations, they may proceed directly to either, “cite and fine,” or to an investigation by the Department of Consumer Affairs.
Citation and fine A citation is not a disciplinary action. It is issued much like a citation for a traffic violation. The executive officer of the board is authorized to determine when and against whom a citation will be issued and is also authorized to issue citations containing orders of abatement and to fine licensees who have violated the laws and regulations enforced by the Board of Behavioral Sciences.6 Likewise, the executive office can issue citations, fines, and orders of abatement (an order to cease and desist from engaging in the unlawful or unprofessional behavior, e.g., an order to stop practicing without a license, or an order to discontinue the use of the word “psychology” in an LMFT’s advertising) against persons who are performing services without a license. Each citation issued is to be in writing, will describe the nature of the violation, and will include a reference to the statute or regulation that has been violated. Persons who are cited are informed of their right to contest the citation. Such citations are to be served in person or by certified mail. Fines for each incident of wrongdoing are to be no greater than $2,500. There are some citations involving certain circumstances that may be up to $5,000. 7 In assessing the fine, the executive officer of the board is to give consideration to the following factors:
Failure to comply with an order of abatement or to pay an assessed fine can in itself result in disciplinary action. However, payment of a fine without requesting a hearing does not constitute an admission of the violation charged. Payment of the fine, nevertheless, represents satisfactory resolution of the matter. If the cited person wishes to contest the citation, he or she must do so within thirty days of receipt by filing a written request for an administrative hearing.9 In addition to, or instead of such a hearing, the cited person may, within thirty days, contest the citation by submitting a written request for an informal citation conference.10 This request is to be directed to the BBS executive officer or his or her designee. This informal conference is to be held within sixty days of receipt of the request, at which the cited person may be represented by counsel. The cited person will be apprised, in writing, of the decision within ten days following the informal conference.11
Complaints that appear to warrant disciplinary action Complaints containing allegations that would warrant disciplinary action if substantiated may be referred to the Department of Consumer Affairs’ Division of Investigation (DOI). The DOI employs peace officers with specialized training to investigate complaints.
If it is determined that the complaint is to be investigated, the investigator may interview the person about whom the complaint is filed. A therapist who is contacted by an investigator who wants to arrange a time for an interview should consult with legal counsel prior to meeting with the investigator. Members of CAMFT may also want to discuss the matter with CAMFT attorneys who may be able to offer some guidance, even though they cannot represent members. CAMFT, likewise, may be able to offer guidance in selecting an attorney. Keep in mind that the meeting with the investigator may be the first clue that a complaint has been filed. Be aware that investigators will generally appear cordial and understanding, because they wish to gather any and all information. Legal counsel can assist you in responding to the investigation, as anything you say can be used against you.
The attorney for the therapist should want to obtain a copy of the complaint or as much information as possible about the complaint as alleged. As a result of legislation sponsored in 1999 by CAMFT, a licensee, or his or her counsel or representative, can obtain either a comprehensive summary of the complaint filed by the consumer or a copy of the complaint with identifying information deleted.12 However, the details of the investigation are not public record, and will remain confidential.
When the investigation is completed and if the allegations are confirmed, the case may be submitted to the Office of the Attorney General (AG) for formal disciplinary action. The Attorney General does not, however, always accept cases for filing. The AG’s office may reject a case if they determine that there is insufficient evidence to support the complaint.
If the case is accepted by the Attorney General’s office, an accusation, in the case of a licensee, or a statement of issues, in the case of an associate MFT, is drafted. This accusation or statement of issues is the first public document in the disciplinary process. If the licensee or registrant requests a hearing to contest the charges, the matter is scheduled for hearing. At the hearing, the Board must demonstrate “by clear and convincing evidence to a reasonably certainty” that the allegations are true.
Often the Board encourages negotiated settlements because they eliminate the need for costly administrative hearings. Such settlements are referred to as stipulations. When a complaint goes to hearing, it is presided over by an Administrative Law Judge (ALJ). Following the hearing, the ALJ will issue a proposed decision, stating the findings that were proven in the hearing, and offering a recommended resolution, e.g., revocation or probation, etc. The proposed decision then goes to the BBS Board Members for a vote. The Board can either adopt the decision or non-adopt. A favorable vote results in the proposed decision becoming the final decision. If the Board votes to non-adopt the proposed decision, the transcript of the hearing is ordered, circulated and discussed, and the Board then issues its own Final Decision. Decisions are a matter of public record and are available upon request. This process may take two years and sometimes longer.
Actions the licensing board can take against licensees and registrants Licensing boards may revoke, require surrender, or suspend a license or registration. They can impose probationary standards that include such things as: retaking examinations, taking special examinations, undergoing psychological evaluations, completing coursework and/or continuing education, getting supervision, getting psychotherapy, having practices monitored, being prohibited from providing supervision, and reimbursing the Board for the costs of investigation and enforcement of the complaint. Refer to the disciplinary actions regularly printed in The Therapist to gain a sense of the types of discipline generally imposed.
Statute of limitations on disciplinary actions Pursuant to legislation sponsored by CAMFT in 1999, that went into effect January 1, 2000, “any accusation filed against a licensee . . . shall be filed within three years from the date the [B]oard discovers the alleged act or omission that is the basis for the disciplinary action, or within seven years from the date the alleged act or omission actually occurred, whichever occurs first.”13 Additionally, “any accusation alleging sexual misconduct shall be filed within three years after the board discovers the act or omission alleged as the grounds for disciplinary action, or within 10 years after the act or omission alleged as the grounds for disciplinary action occurs, whichever occurs first.”14 Exceptions to this statute of limitations exist in the case where a license is procured by fraud or misrepresentation; or, in the case of a minor, the seven-year period is tolled until the minor reaches the age of majority.
Ethics complaints/violations of CAMFT’s Code of Ethics CAMFT has ethical standards that members, as well as others within the profession, are expected to uphold. In fact, in civil suits and disciplinary actions, the profession’s ethical standards may be considered, when discussing the potential negligent, or unprofessional conduct of a therapist. Ethics complaints are submitted, in writing, to the CAMFT Ethics Committee in much the same way as complaints are submitted to the licensing board. Complaints must identify the complainant both by name and address. Anonymous complaints sent to the Committee will not be recognized as a basis for action. When CAMFT receives an ethics complaint, the complaint is acknowledged and the complainant is informed as to whether or not the person is a CAMFT member. If the person is not a member, CAMFT has no jurisdiction, but the complaint is held and may be addressed should the individual join the Association.15
Initially the complaint is reviewed to determine whether it warrants further action. If the complaint has no merit, it will be closed without further action, and the complainant will be so notified. If it appears that there may be merit to the complaint and the member may have violated one or more sections of CAMFT’s Code of Ethics, authorization for release of information is sought from the complainant. At this time, the Ethics Committee commences its investigation, which may include seeking additional information from the complainant, seeking a response to the allegations from the member, interviewing the complainant and/or the member, and possibly seeking other information from consultants, supervisors and/or therapists for the member. The member is informed of the potential ethical standards violated and is provided a copy of the complaint to be able to respond to the Committee. The accused member has the option to consult with an attorney and to have the attorney present during any investigatory meeting.
If the member resigns from CAMFT membership at any stage during the investigation, the Committee may continue its investigation. Also, at this time, due to recently passed legislation sponsored by CAMFT, if the member resigns during the pendency of a complaint, that resignation must be reported to the BBS. Likewise, if an applicant’s membership is revoked, terminated, or subject to specified restrictions for a “medical disciplinary cause or reason,” (where the therapist’s competence or professional conduct is reasonably likely to be detrimental to patient safety or the delivery of patient care), such situations are to be reported to the BBS, pursuant to Section 805 of the Business and Professions Code.
If the Committee, following review of all of the facts and circumstances, determines that the member violated the Code of Ethics, it may decide to settle the case by mutual agreement.16 Such a settlement involves an agreement between the parties whereby the member agrees to certain remedial action that may include: coursework, continuing education, supervision, psychotherapy, research, or other action intended to support and enhance the member’s understanding of the Code of Ethics and ethical practice. The most egregious cases may result in termination of membership. Generally, however, the Ethics Committee has seen their role as more educative and instructive in nature, and not directed at being punitive. If the Committee believes that the Code of Ethics have not been violated, the case is closed with no action taken against the member. If a Settlement by Mutual Agreement is proposed, the member is asked to sign such an agreement. If an agreement cannot be reached, the member will be notified of his/her right to a hearing before the CAMFT Board of Directors, which is the mechanism for appeal for the member. Generally, ethics complaints are processed more rapidly than other types of recourse, and action is usually completed within the year that the complaint is filed.
As a result of legislation passed, which became effective January 1, 2001, the records of the Ethics Committee and the testimony of the members of the Committee, are immune from discovery and cannot be used against the therapist in other proceedings, such as civil suits.17
This article is intended to provide members with answers about what happens when a patient pursues some adverse action against a therapist. It does not answer every question, and is not meant to intimidate therapists into thinking that they may be scrutinized for every questionable action. The best way, of course, to not involve yourself in the defense of allegations made against you, is to practice defensively. However, even when defensive practice still results in some action being taken against you, don’t hesitate to consult with respected clinicians, call CAMFT, consult legal counsel, and notify your insurance carrier. Depending upon your malpractice insurance carrier, you may have some coverage for disciplinary actions. Check the policy for the amount of coverage provided (e.g., $5,000). As long as you purchased malpractice insurance during the period of time that the alleged act occurred, you have coverage for civil actions for the amount (e.g., $1,000,000/$3,000,000 policy) of coverage purchased. Malpractice insurance, even though not mandatory, is your protection again many adverse actions. However, insurance is not all-encompassing. It generally does not provide coverage for the insured who knowingly engage in unlawful acts. Policies also always have exclusions. Carefully review you policy to make sure you have the coverage you need to protect you and your assets.
1 Cal. Civil Code § 3333.2(b). 2 Cal. Business & Professions Code § 803. 3 Cal. Business & Professions Code § 801(b). 4 Cal. Business & Professions Code § 801(h)(2). 5 Cal. Civil Code § 56.105. 6 16 CCR § 1886. 7 16 CCR § 1886.40(b). 8 16 CCR § 1886.30(g). 9 16 CCR § 1886.70(a). 10 16 CCR § 1886.70(b). 11 16 CCR § 1886.70(c). 12 Cal. Business & Professions Code § 800(c). 13 Cal. Business & Professions Code § 4982.05 (a). 14 Cal. Business & Professions Code § 4982.05 (e). 15 CAMFT Code of Ethics, Part II, § 3. 16 CAMFT Code of Ethics, Part II, § 7(B). 17 Cal. Evidence Code § 1157.