Psychological Testing - Attorney General’s Opinion Published
(September/October 1984)

John K. Van De Kamp
Attorney General

Ronald M. Weiskopf
Deputy Attorney General


TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California

JOHN K. VAN DE KAMP Attorney General

OPINION

of

JOHN K. VAN DE KAMP, Attorney General

RONALD M. WEISKOPF, Deputy Attorney General

No. 83-810
JUNE 28, 1984

THE HONORABLE PAUL B. CARPENTER, MEMBER OF THE CALIFORNIA SENATE, has requested an opinion on the following question:

Do marriage, family and child counselors have the statutory authority to construct, administer and interpret psychological tests?

CONCLUSION

Marriage, family and child counselors have the statutory authority to construct, administer and interpret “psychological tests” but to do so only within the course of their practice, when within their field or fields of competence as established by education, training, and experience, and when such could and would be used to examine an interpersonal relationship between spouses or members of a family for the purpose of achieving more adequate, satisfying and productive marriage and family adjustments.

ANALYSIS

Marriage, family and child counselors are licensed by the Board of Behavioral Science pursuant to Business and Professions Code division 2, chapter 13, section 4980 et seq. (formerly div. 7, pt. 3, ch. 4, § 17800 et seq.), as specialists in marital and family dysfunction. As such they are “one of a number of trained [licentiates] who play a part in the large, and, in the main, uncharted area of mental and emotional functioning of individuals and groups.”

(49 Ops.Cal.Atty.Gen. 104, 109 (1967).) We are asked herein whether those licentiates may construct, administer and interpret “psychological tests.”

Unfortunately we have neither been provided with a definition of the term “psychological tests” nor particular examples which the requester might have in mind. Since the question is not confined to particular tests our answer must be broad enough to cover all “psychological tests” as they may be conceived. Nevertheless we assume that the concern herein is with the use by a marriage counselor of those tests of mental abilities, aptitudes, interests, attitudes, personality characteristics, emotions and motivations spoken of in section 2903 of the Psychology Licensing Law, post, under circumstances which would constitute the rendering of psychological services and thus constitute the practice of psychology as it is defined in that section.

Asked whether marriage counselors might use (i.e., construct, administer, and interpret) them incident to their practice we will conclude, upon review of the pertinent statutory provisions of the Psychology Licensing Law (Bus. & Prof. Code, ch. 6.6, § 2900 et seq.) and the Marriage, Family and Child Counselors Law (id., ch. 13, § 4980 et seq.), that marriage counselors do possess the requisite statutory authority to do so but only where a test would be useful and used in the course of their marriage counseling practice to examine an interpersonal relationship for the purpose of achieving more adequate, satisfying and productive marriage and family adjustments.

Section 2903 of the Psychology Licensing Law (Bus. & Prof. Code, ch. 6.6, § 2900 et seq.) declares it illegal for any person “to engage in the practice of psychology...without a license granted under [it], except as otherwise provided [therein].” The section then defines “the practice of psychology” and refines it as follows:

“The practice of psychology is defined as rendering or offering to render for a fee to individuals, groups, organizations or the public any psychological service involving the application of psychological principles, methods, and procedures of understanding, predicting, and influencing behavior, such as the principles pertaining to learning, perception, motivation, emotions, and interpersonal relationships; and the methods and procedures of interviewing, counseling, psychotherapy, behavior modification, and hypnosis; and of constructing, administering, and interpreting tests of mental abilities, aptitudes, interests, attitudes, personality characteristics, emotions, and motivations.

“The application of such principles and methods includes, but is not restricted to: diagnosis, prevention, treatment and amelioration of psychological problems and emotional and mental disorders of individuals and groups.

“Psychotherapy within the meaning of this chapter means the use of psychological methods in a professional relationship to assist a person or persons to acquire greater human effectiveness or to modify feelings, conditions, attitudes and behavior which are emotionally, intellectually, or socially ineffectual or maladjustive.” (Emphases added; § 2903.)

Section 2903 is modified, however, by section 2908 of the Psychology Licensing Law which provides that nothing therein:

“...shall be construed to prevent qualified members of other recognized professional groups licensed to practice in the State of California, such as, but not limited to, physicians, clinical social workers, educational psychologists, [or] marriage, family and child counselors,...from doing work of a psychological nature consistent with the laws governing their respective professions, provided they do not hold themselves out to the public by any title or description of services incorporating the words ‘psychological,’ ‘psychologist,’ ‘psychology,’ ‘psychometrist,’ ‘psycho-metrics,’ or, ‘psychometry’ or that they do not state or imply that they are licensed to practice psychology...” (Emphases added.)

(§ 2908, formerly § 2903.5 (Stats. 1957, ch. 2320, p. 4038, § 1), § 2934 (Stats. 1957, ch. 2320, p. 4040, § 1), § 2935 (Stats. 1957, ch. 2320, p. 4041, § 1), amended by Stats. 1959, ch. 297, p. 2206, § 1; see also §§ 2909 (psychological activities by salaried employees of organizations), 2910 (same, by salaried employees of academic institutions, public schools or government agencies), 2911 (activities by graduate students, psychological interns and psychological trainees), 2912 (out-of-state practitioners), and 2913 (psychological assistants).)

With the enactment of the Marriage, Family and Child Counseling Law (“MFCCL”) (Stats. 1963, ch. 1823, p. 3759, § 1, as amended by Stats. 1965, ch. 1506, p. 3539, § 1; Stats. 1969, ch. 298, p. 666, § 5; Stats. 1970, ch. 1310, p. 2436, §.1; Stats. 1975, ch. 198, p. 572, § 1; Stats. 1977, ch. 1244, p. 4215, § 1), the Legislature recognized marriage counseling as a licentiable discipline. Section 4980.02 (formerly § 17800.2) defines the practice as follows:

“For the purposes of this chapter, the practice of marriage, family and child counseling shall mean that service performed with individuals, couples, or groups wherein interpersonal relationships between spouses or members of a family are examined for the purpose of achieving more adequate, satisfying, and productive marriage and family adjustments. Such practice includes premarriage counseling.

“The application of marriage, family and child counseling principles and methods includes, but is not limited to, the use of applied psychotherapeutic techniques, to enable individuals to mature and grow within marriage and the family, and the provision of explanations and interpretations of the psychosexual and psychosocial aspects of relationships within a marriage and family. “............................................................................................” (Emphases added.)

(§ 4980.02, former § 17800.2 added by Stats. 1970, ch. 1310, p. 2437, § 3, and amended by Stats. 1976, ch. 685, § 1 and Stats. 1982, ch. 1126, p. [995], § 2.) Section 4980.01 (formerly § 17800.1) of that Law sets forth the relationship between the MFCCL and other laws as follows:

“Nothing in this chapter shall be construed to constrict, limit, or withdraw provisions of the Medical Practice Act, the Social Work Licensing Law, the Nursing Practice Act, or the Psychology Licensing Act [sic. Law].” (Emphases added.)

Needless to say, both of the aforementioned disciplines, psychology and marriage counseling, deal with ameliorating human problems or difficulties in the areas of mental and emotional functioning (49 Ops.Cal.Atty.Gen., supra, at 109) and both classes of professionals have been given limited licenses to perform tasks previously within the exclusive province of the physician. (58 Ops.Cal.Atty.Gen. 186, 188 (1975); see § 2152.) What exists then is a licensing scheme of “overlapping spheres, not necessarily exclusive of each other, involving aid to the mentally or emotionally disordered person.” (49 Ops.Cal.Atty.Gen., supra, at 109; cf. 64 Ops.Cal.Atty.Gen. 240, 252, fn. 17.) That overlap, which is readily apparent upon examination of sections 2903/2908 and 4980.01/4980.02, “has long been at issue” (58 Ops.Cal.Atty.Gen., supra, at 189) and in effect we are now asked whether a particular activity -- psychological testing -- falls within it.

We have assumed that the construction, administration and interpretation of psychological tests of concern herein is such as to constitute the practice of psychology as it is defined by section 2903 of the Psychology Licensing Law. (See fn. 2 & accompanying text.) Assumption and tautology aside, it certainly would where their use involves an attempt to understand and predict behavior through an application of psychological principles pertaining to learning, perception, motivation, emotions, and interpersonal relationships. (CF. § 2903.) As such, the use of those tests under those circumstances may not be undertaken by any person other than a licensed psychologist unless permitted by the Psychology Licensing Law (Ibid.) That law though, as we have seen, permits recognized professional licentiates, such as marriage counselors, to do “work of a psychological nature consistent with the laws governing their respective professions. (§ 2908.) Inasmuch as the Marriage, Family and Child Counseling Law was not meant to “constrict, limit or withdraw provisions of the Medical Practice Act...or the Psychology Licensing Act” (§ 4980.01, formerly § 17800.1) we must determine whether it provides authority for marriage counselors to perform psychological testing anent their practice. (58 Ops.Cal.Atty.Gen., supra, at 192-193 (“[T]he performance by nonphysicians and nonpsychologists of those functions which come within the broad scope of the practice of medicine and within the specific statutory definition of psychology should be permitted only when expressly authorized by statute”).)

We therefore turn to section 4980.02 (formerly §17800.2) of the Marriage, Family and Child Counselors Law, for it is the “eye of the needle” through which a marriage counselor must pass to perform psychological testing in his or her practice. The section, rent asunder, simply defines the practice of marriage counseling as -- that service...wherein interpersonal relationships between spouses or members of a family are examined for the purpose of achieving more adequate, satisfying, and productive marriage and family adjustments -- and it then includes within the ambit of that practice, without further definition, the “application of marriage counseling principles,” such as “the use of applied psychotherapeutic techniques, to enable individuals to mature and grow within marriage and the family, and the provision of explanations and interpretations of psychosexual and psychosocial aspects of relationships within a marriage and family.” Does “psychological testing” come within that rubric?

It has been suggested that the most obvious fount of authority for marriage counselors to perform psychological testing is their being authorized to use applied psychotherapeutic techniques in the course of their practice. “Psychological testing,” however, does not constitute an “applied psychotherapeutic technique,” albeit the obvious phrase by which the Legislature “attempted to...recognize the degree to which the practice of psychology and marriage counseling overlap, and thus further define the scope of practice issues between the two licensed professions.” (58 Ops.Cal.Atty.Gen., supra, at 194.) Insofar as it can be pigeonholed, psychological testing would constitute a diagnostic endeavor and not a treatment mechanism. Without lapsing into an earlier error of relying too heavily on the dictionary definition of the word “psychotherapy” and its variants to restrict its meaning to areas of actual mental illness (see 49 Ops.Cal.Atty.Gen., supra, at 105-106 criticizing and overruling 47 Ops.Cal.Atty.Gen. 204, 205-206 (1966) on that point), we think it safe to say, from all descriptions and definitions of the term, that “psychotherapy” refers to a mode of treating a disorder rather than a method of diagnosing it. (See, e.g., “The Psychologist and Voluntary Health Insurance,” (Washington, D.C.: Am. Psychological Assn.) at pp. 10-13, quoted in 49 Ops.Cal.Atty.Gen., supra, at 106-107 (compare “The most frequent treatment [of mental or emotional disorders] is psychotherapy” with “Psychologists, as a result of training in psychological processes and measurement, have developed the use of diagnostic psychological testing”); see also the definitions mentioned in 58 Ops.Cal.Atty.Gen., supra, at 194, fn. 10 and in 49 Ops.Cal.Atty.Gen., supra, at 105, fn. 1; see also Webster’s Third New Internat. Dict. (1971 ed.) at pp. 1834 (“psychotherapy”) and 2372 (“therapy”).) Certainly when the Legislature has described the term, as in sections 4980.2 and 2903, it has focused on the treatment aspects of psychological undertakings and not its diagnostic endeavors. (§ 4980.2: psychotherapeutic techniques to enable individuals to mature within their marriage; cf. § 2903: psychotherapy = the use of psychological methods to assist a person to acquire greater effectiveness or to modify maladjustments.)

In a recent opinion we iterated the notions that diagnoses and treatment were separate undertakings; that the “authority of a healing arts licentiate other than a physician to act in the ‘treatment’ area would not be authority to diagnose”; and that therefore “the fact...that [such a licentiate] might be vested with certain authority vis-à-vis the treatment of a patient...does not mean that the [licentiate] would thereby be vested with similar authority with respect to...diagnosis of the patient’s condition.” (66 Ops.Cal.Atty.Gen., 428, 434 (1983) citing 45 Ops.Cal.Atty.Gen. 116, 118 (1965).) Applying those notions here, we find that the fact that the Legislature has recognized the authority of marriage counselors to use “applied psychotherapeutic techniques,” a modality of treatment, does not impart authority for them to undertake psychological testing, a diagnostic tool. The Legislature in fact has made its understanding clear in section 2903 that the two undertakings are separate and distinct endeavors. Thus the authority of a marriage counselor to undertake diagnostic psychological testing, if it does exist, must be found elsewhere.

We therefore must return to the basic legislative definition of the practice of marriage counseling found in section 4780.02 (i.e., “that service...wherein interpersonal relationships between spouses or members of a family are examined for the purpose of achieving more adequate, satisfying, and productive marriage and family adjustments”) and to the authority of marriage counselors to provide explanations and interpretations of certain aspects of relationships within a marriage and family. Surely those activities contemplate marriage counselors undertaking diagnostic endeavors. However, the problem with being too quick to extrapolate an authority to perform psychological testing therefrom is that such authority could authorize a marriage counselor to undertake any diagnostic function of a psychological nature (cf. § 2908) in an attempt to examine a spousal or family relationship or provide an explanation of its aspects, and would make the practice of marriage counseling virtually coextensive with the practice of psychology. (Cf. 66 Ops.Cal.Atty.Gen., supra, at 432 (similar problem with § 2725 defining the practice of nursing).) Clearly that is a result the Legislature could never have intended for while it is true that in section 2908 of the Psychology Licensing Law the Legislature has recognized that marriage counselors (along with other recognized professionals) might “perform work of a psychological nature consistent with the laws governing their...profession[],” it has also made it very clear at the outset of the Marriage Counseling Law that “nothing in [it] [should] be construed to constrict, limit or withdraw provisions of the Psychology Licensing Act [sic].” (§ 4980.01.) Two separate and distinct disciplines were envisioned that might overlap in some respects but certainly not all.

Examining interpersonal relationships to achieve “more adequate, satisfying and productive marriage and family adjustments” would seem to encompass much more than dealing with mental illness (cf. 49 Ops.Cal.Atty.Gen., supra, at 105) and would appear to include any matters which give rise to marital or family problems -- e.g., financial, legal, sex, religion, dispositions, habits, friends, disease, death, etc. While the scope of the marriage counselor’s practice is thus as broad as the range of problems which may arise in a marriage (or family relationship), the methods which the law authorizes the counselors to use to achieve adjustments are limited to “the application of marriage counseling principles.” The marriage counselor, then, is a “generalist” who, within his competence and field, explores the family relationships in all its problem areas and refers the parties with problems beyond his ken to the appropriate professional as needed.

Inasmuch as we have not been provided with a definition of the term “psychological test” or particular examples to focus upon, we cannot state in absolute terms whether or not marriage counselors are authorized by statute to use them in the course of their practice. Even with our assumption as to the tests of concern, our answer must be as general as the question that is asked. As we have seen, the Legislature has accorded marriage counselors the statutory authority to perform work of a psychological nature consistent with the laws of their profession, i.e., consistent with an application of marriage counseling principles in the course of marriage counseling to examine an interpersonal relationship between spouses or members of a family and, inter alia, to provide explanations of certain aspects of those relationships. Taking the notion of “psychological testing” in its broader sense, we imagine that there could be psychological tests that could be used in marriage counseling for that purpose. Insofar then as a particular test could be used in marriage counseling as a diagnostic tool that is founded upon, is directed toward, and is able to help examine a marital or family interpersonal relationship for the purpose of achieving a more adequate, productive and satisfying marriage or family relationship, we find no statutory impediment to a marriage counselor using it under circumstances which would constitute the practice of psychology as part of his or her counseling service armamentarium. (But see fn. 9.) It cannot be gainsaid, however, that the counselor must be competently qualified through education, training and experience to do so. (16 Cal. Admin. Code, § 1845, subd. (g).) And it must be stressed that the use of the test under such circumstances must take place within the context of solving a marriage counseling problem for the purpose of achieving a more adequate, satisfying or productive marriage or family relationship. Any other use by a marriage counselor of those tests would be beyond the statutory authorization of section 4980.02 and would therefore constitute an unauthorized practice of psychology within the meaning of section 2903 of the Psychology Licensing Law since it would not fall within the exemption provided in section 2908 of that law for marriage counselors to be “work of a psychological nature consistent with the laws governing their...profession.”

We therefore conclude that marriage counselors have the statutory authority to utilize psychological tests but to do so only within the course of their practice, when within their field or fields of competence as established by education, training, and experience, and where such tests could and would be used to examine an interpersonal relationship between spouses or members of a family to help achieve a more adequate, satisfying and productive marriage and family adjustment.

 

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