by: David G. Jensen, former Staff Attorney
The Therapist
(November/December 2003)

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Supervising interns can be a rewarding experience, professionally speaking, of course. And, in a perfect supervision world, your interns will sail smoothly through their internships and never run into turbulent waters as they make swift and steady progress towards the balmy island of licensure. Your interns will always value your insights and judgments; they will always render services in a competent manner; they will always maintain confidentiality; they will never have sex with their clients; they will always adhere to ethical and legal standards; and, they will always view supervision as an integral part of their maturation as therapists. Unfortunately, you don't supervise in a perfect supervision world. Supervising can also be a "Nightmare on Elm Street" experience if you are supervising an unqualified, incompetent, or dishonest intern. You will rue the day you hired such an individual, and you will certainly lose sleep as you worry about potential BBS investigations and lawsuits.

Hopefully not, but as you supervise interns you may come across an intern who has lied on his or her intern registration or license application; you may have an intern who propositions clients for sex; you may have an intern who is so incompetent clinically that he or she is a danger to the public; you may have an intern who engages in illegal and unethical dual relationships; you may have an intern who is suffering from severe depression or some other mental illness; or, you may have an intern who is abusing drugs and/or alcohol.

When faced with serious violations of laws, regulations, and/or ethical standards, what recourse do you have under the law, as a supervisor, to do something about such violations? Can you have your concerns redressed? If so, who has jurisdiction over such concerns? Moreover, if you do decide to do something, can the intern then successfully sue you for doing what you did? The purpose of this article is to apprise supervisors and interns of the right that supervisors have under California law to make reports to the BBS about unqualified, incompetent, or dishonest interns. Although this article focuses on the rights that supervisors have in relation to interns, the information contained herein is equally applicable to interns or colleagues who wish to complain about unqualified, incompetent, or dishonest licensees.

The Problem
Is it possible for an unqualified, incompetent, or dishonest intern to become licensed? Unfortunately, the answer to this question is yes. Keep in mind that all someone has to do to become licensed is obtain a graduate degree, submit 3,000 hours of experience, and then pass a written and oral examination. You would think that it would be difficult, or even near impossible, for an unqualified, incompetent, or dishonest intern to obtain the requisite experience and pass the examinations, but the sad reality is that it's not. Here's how it typically occurs.

Intern acquires about 600 hours at setting A, but his supervisor, Supervisor Mary, then realizes the intern is dishonest because intern forged Supervisor Mary's signature on some entries for intern's weekly logs. Supervisor Mary then terminates the supervisory relationship with intern after signing off on the hours the intern has lawfully earned, which is what Supervisor Mary is required to do by applicable regulation.¹ Consequently, although Supervisor Mary knows that the intern is dishonest, intern has acquired some hours towards the 3,000-hour requirement. Intern then goes to setting B where he acquires even more hours towards licensure before being fired for propositioning a female client, but he gets the hours that he did earn signed for by his supervisor. Intern is then off to setting C, where he acquires even more hours towards the 3,000-hour requirement.

This mini soap opera illustrates the problem. It is possible for an unqualified, incompetent, or dishonest intern to be passed along from setting to setting, performing miserably at each one, but at the same time being allowed to acquire hours of experience towards licensure.

So, if that's the problem, what can supervisors do to derail this train of incompetence and dishonesty once it has left the station?

The Solution?
Section 43.8 of the California Civil Code provides immunity from liability to any person, including any supervisor, who communicates information in the possession of that person to the BBS, or any other licensing board, when the communication is intended to aid the BBS, or a committee or panel of the BBS, in evaluating the qualifications, fitness, character, or insurability of an intern. Section 43.8 reads, in pertinent part:

• there shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person on account of the communication of information in the possession of that person to any … professional licensing board or division, committee or panel of a licensing board, … when the communication is intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing or veterinary arts.

Consequently, Section 43.8 of the Civil Code provides immunity to supervisors when they notify the BBS about interns who are unqualified, dishonest, or incompetent as long as the communication is intended to aid the BBS in evaluating the qualifications, fitness, character, or insurability of the interns. Section 43.8 seems to provide supervisors with a blanket of immunity, but is such blanket thick and expansive enough to completely protect supervisors from the icy winds of a lawsuit brought by an aggrieved intern?

Absolute or Conditional Immunity?
In Hassan v. Mercy American River Hospital, ² the California Supreme Court ("hereinafter Court") recently considered the extent of the liability provided for those persons who make reports to licensing boards and other such overarching organizations pursuant to Section 43.8 (hereinafter "Section 43.8 Notification"). The issue before the Court in the Hassan case was whether the immunity afforded by Section 43.8 is absolute or conditional. ³ The answer to this question is important because if the immunity is absolute, no supervisor could be sued successfully by an intern for making a Section 43.8 Notification; conversely, if the immunity is conditional, there is a chance of a supervisor being sued successfully by an intern for making a Section 43.8 Notification, assuming, of course, that the supervisor has done something to defeat the conditional or qualified immunity.

In Hassan, the Court concluded that the immunity afforded by Section 43.8 is conditional, not absolute.⁴ Obviously, in light of what I just stated in the previous paragraph, this is not good news for supervisors, or anyone making a Section 43.8 Notification. The Court in Hassan opined that the information conveyed in a Section 43.8 Notification must be given with the intent of aiding in the evaluation of a person's qualifications, fitness, character, or insurability.⁵ But the Court distinguished valid Section 43.8 Notifications from ones that have been made maliciously.⁶ Malicious communications will defeat the conditional immunity afforded by Section 43.8 of the Civil Code. So, what would constitute a malicious communication for the purpose of making a Section 43.8 Notification?

Fortunately, the Court in Hassan answered this question as well. A malicious communication for the purpose of a Section 43.8 Notification is one that the communicator knows is false or is made when the communicator lacks the good faith intent to aid in the evaluation of the intern that is the subject of the Section 43.8 Notification.⁷ In Hassan, the Court stated that, "Because false information of any sort has no value in evaluating a medical practitioner, the communication of information known to be false cannot be intended to help or assist in that evaluation, or, in other words, an intent to deceive is inconsistent with an intent to aid. Thus, proof that the communicator knew the information to be false when it was conveyed establishes malice sufficient to defeat the qualified Section 43.8 privilege."⁸

I cannot stress enough that the information communicated in a Section 43.8 Notification must be true. There is no place in a Section 43.8 Notification for false information. Including false information in a Section 43.8 Notification will likely expose you to liability because such information will destroy the conditional or qualified immunity that you have when making a Section 43.8 Notification.

Moreover, information given to the BBS in a Section 43.8 Notification should only be given to the BBS to aid the BBS in evaluating an intern's qualifications, fitness, character, or insurability. The Court in Hassan points out that to "aid" means ordinarily to "assist or help," and that to "intend" means to have in mind a purpose or goal. Given the dictionary definition of these words, the Court concludes that a communication is intended to aid in the evaluation of someone "when the communicator acts with a subjective purpose or goal to help or assist in the evaluation" of the person who is the subject of the Section 43.8 Notification.⁹

Interestingly enough, the Court in Hassan states that the information given within a Section 43.8 Notification does not actually have to aid the BBS in evaluating an intern; the information just has to be communicated to the BBS with the intent of aiding it in the evaluation of an intern.¹⁰ For your use, should you desire to make a Section 43.8 Notification to the BBS, CAMFT has prepared the letter below as a model to follow when making such notification.

What About Notifying the BBS About An Unqualified, Dishonest, or Incompetent Licensee?
Although this article has focused on the relationships between interns and supervisors, you should also note that a Section 43.8 Notification could also be used by an intern or a licensee to notify the BBS about an unqualified, dishonest, or incompetent licensee. A Section 43.8 Notification about a licensee would be made in the same way and with the same caveats that such notifications are made about interns. The information provided to the BBS about a licensee must be given to assist the BBS it in its evaluation of the qualifications, fitness, character, or insurability of the licensed person and the information contained in the Section 43.8 Notification must be true.

Within the spirit of CAMFT's Ethical Standards, however, colleagues should attempt to resolve their concerns with other licensees before filing a Section 43.8 Notification. Pursuant to Ethical Standard 5, licensees are supposed to respect the confidences of colleagues, are encouraged to assist colleagues with their personal problems, and are to avoid making frivolous complaints. The spirit of the Ethical Standard calls for respect, courtesy, fairness, good faith, and cooperation in these situations. Hopefully, consulting with a colleague will lead to the offending licensee agreeing to make certain changes in his or her personal or professional life to address the legal and ethical concerns raised by the colleague. If not, then the Section 43.8 Notification process remains as a mechanism for having the colleague's legal and ethical concerns about an unqualified, dishonest, or incompetent licensee addressed by the BBS. However, the Section 43.8 Notification process should only be used for serious violations of legal and ethical standards.

Are Communications Between Interns and Supervisors Confidential?
In California, communications between interns and supervisors are not confidential so generally there is not a problem with forwarding information communicated from an intern to a supervisor on to the BBS for the purpose of making a Section 43.8 Notification. However, if an intern does convey information to you as a supervisor about a personal or professional problem, that information should not be the basis for making a Section 43.8 Notification. Although, technically, you could relay the information to the BBS pursuant to a Section 43.8 Notification because the information is not confidential, the better approach is to counsel and work with the intern to help him or her address his/her problems or refer for therapy if warranted.

But, suppose you do discover that one of your interns has committed a serious breach of legal or ethical standards. Most of the time you will be reporting acts that the intern has committed, or has failed to commit, that violate legal or ethical standards. You will be reporting your observations of what occurred and not information reported to you by the intern so the information is not confidential.

On the other hand, confidentiality would come into play if you, as a supervisor, learn of ethical or legal violations committed by an intern or licensee from a patient. If you then forward such information to the BBS you would be breaching the patient's confidentiality if the patient has not authorized the disclosure. Patients, of course, may file their own complaints about interns or therapists with the BBS. And, patients will be asked to waive confidentiality so that the BBS can investigate such complaints. But, what if the patient does not want to make a complaint, but you, as the supervisor or colleague, think that one is warranted? If the only information that you have about an intern's or colleague's violation of legal or ethical standards comes from the patient, then you would have to have patient authorization before making a Section 43.8 Notification.

Conclusions
Although the Section 43.8 Notification process is available for anyone to use to contact the BBS about information that the BBS can use to evaluate the qualifications, fitness, character, or insurability of interns and licensees, such process should only be used to address serious violations of legal or ethical standards. If at all possible, supervisors should work with their interns and colleagues should work with one another to address and correct legal and ethical concerns. Making a Section 43.8 Notification should be the exception and not the rule. However, if you are considering making a Section 43.8 Notification, you need to be aware of the following four things:

You do not have to make a Section 43.8 Notification; in other words, you are not mandated to make a Section 43.8 Notification if you discover that one of your interns has committed ethical or legal violations. Making a Section 43.8 Notification is a purely voluntary act. In lieu of making a Section 43.8 Notification about an unqualified, incompetent, or dishonest intern, you could suspend or fire the intern and then sign the hours that you are legally obligated to sign off on and be done with that particular intern.

If you do decide to make a Section 43.8 Notification, be aware that the conditional or qualified immunity available for making a Section 43.8 Notification will not insulate you from being sued by an intern; rather, the immunity will provide you with a defense to a lawsuit when and if one has been filed against you.

A Section 43.8 Notification should only be made after an intern or a licensee has committed a serious breach of ethical or legal duties. A Section 43.8 Notification should not be used to address personality or financial differences or other such minor issues. These types of issues need to be addressed and handled in a professional manner between interns and supervisors or colleagues.

Pursuant to the Hassan case, an organization can be a "person" within the meaning of Section 43.8 of the Civil Code.¹¹ This means that entities, and not just supervisors, can make Section 43.8 Notifications. Consequently, an executive director of a nonprofit corporation could make a Section 43.8 Notification on behalf of such corporation.

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¹ 18 CCR 1833.1(c)
²Hassan v. Mercy American River Hospital, 3 Cal. Rptr. 3d 625, (2003)
³Hassan, p. 628
⁴Hassan, p. 625
⁵Hassan, p. 630
⁶Hassan, p. 632
⁷Hassan, p. 632
⁸Hassan, p. 632
⁹Hassan, p. 630
¹⁰Hassan, p. 632
¹¹Hassan, p. 632

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This article appeared in the November/December 2003 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.