What to Do if You Receive a Licensing Board Complaint
This article has been reprinted with permission from the January/February 2003 issue of The North Carolina Psychologist.
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At NCPA’s Risk Management Conference on November 16, 2002, speaker Eric Harris, J.D., Ph.D., stated that complaints against psychologists to licensing boards are generally more damaging to psychologists than lawsuits. As a result of those comments, the Professional Affairs and Ethics Committee thought NCPA’s members would benefit from further discussion about managing risk of licensing board complaints. I conducted interviews with Thomas West, J.D., a former administrative law judge in North Carolina, and Steven Shaber, J.D., both of whom are partners with Poyner and Spruill LLP. Mr. West’s practice is concentrated in the area of administrative law, including defending psychologists and other professionals against licensing board complaints. Mr. Shaber concentrates in health law and also frequently represents psychologists facing licensing board action.
I was interested in that observation. While I have represented psychologists in complaints before the Board, I have never defended a psychologist in a malpractice suit, so I don’t have a basis for comparison. Board complaints are time consuming, emotional and expensive. With Board actions now being reported to managed care companies, they can have a serious impact on the psychologist’s practice. In a way, it’s good to know malpractice cases are not as bad.
I agree completely with Eric. The Licensing Board also has the ability to limit or terminate a psychologist’s ability to practice.
The first response should be to review your insurance coverage for Board complaints. Then regardless of whether you have coverage, you should contact legal counsel. (JP’s note: Do not assume your malpractice policy covers complaints to the Board; that coverage is typically purchased separately from coverage for a lawsuit.) If you don’t have insurance coverage for ethics complaints, you should get it. The premium is remarkably reasonable.
I agree with Eric’s statement that the process is "front loaded." The attention and care you pay to your initial response to a complaint is crucial. I think any professional person is shaken under these circumstances, so the services of an attorney are critical. If you and your lawyer marshal the facts right away, you may win without a hearing or settle on the best possible terms.
No. In general you can discuss with a lawyer whatever records the Board orders you to produce without client consent. While there is no case law involving psychologists, case law involving defense of medical malpractice cases provides that records may be shared with the attorney to the degree necessary to defend the claim.
One potential pitfall is discussing the complaint with other psychologists. Those conversations generally are not privileged. Criticisms your colleague gives you could be the subject of questions by the Board.
Let’s go back to the waiver of confidentiality for a second. Sometimes the lawyer can advise the psychologist without needing to know the name of the patient. This comes up when the complaint is filed by someone other than the patient, and when the patient has not yet filed but threatens to do so. Those are two situations where, maybe, the patient has not waived confidentiality.
It is okay to confide in one’s own therapist. But you should not discuss identifying information. You always need to keep in mind, "What is my motive?" Consider whether it is to seek advice or to receive psychological help. If the purpose is therapy, talk with your therapist. If the purpose is to get advice, ask your attorney to consider retaining a consulting expert so you can get that advice after a full discussion of the matter that is protected by the attorney work product doctrine.
Just because there is a waiver of confidentiality by the complainant when the complaint is filed, doesn’t mean other clients discussed in the case have waived confidentiality (JP’s note: for example, child custody cases).
Do not discuss the complaint with the complainant unless your lawyer agrees to let you. The complainant represents great risk to you, and you generally should not discuss the complaint with him or her. But once in a while communication with the complainant has helped settle a situation. In the special case where you and your counsel decide to communicate with the patient, you probably want to do it in writing.
I do not know specifically whether it would be a violation of any of the provisions of the Ethical Principles and Code of Conduct. However, by way of analogy the North Carolina State Bar has specifically dealt with this issue in the past and made it clear that it would be unethical for an attorney to seek by contract to prevent a person from filing a complaint against the attorney with the State Bar. With regard to whether it is enforceable, probably not. If the person filed an ethics complaint contrary to the specific terms of a settlement agreement, clearly the Board would be free to investigate it. If the psychologist were to then sue for breach of the settlement agreement, the courts may very well find the provision to be in violation of public policy and unenforceable. In sum, regardless of whether such a provision is ethical, it’s not a good idea; whether it is enforceable, I seriously doubt it.
Thanks to Elliot Silverstein, Ph.D., for his editorial comments on this column.
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