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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.
Too many licensees and interns are not aware of the potential danger to their license or intern registration.
David Jensen, JD (former CAMFT Staff Attorney)
Reviewed October, 2017 by Alain Montgomery, JD (former CAMFT Paralegal)
Politicians, celebrities, and professional athletes love to draw a distinction between their public and private lives, meaning, in essence, that although information gleaned about them from their public lives is acceptable fodder for dissemination in news stories and tabloids, information gleaned about their personal lives is not. In their attempt to safeguard the privacy rights of themselves and their families, some public figures have even become violent when confronted with what are perceived to be excessive intrusions and tactics of the paparazzi.
As another example, on a less discordant note, during the Clinton administration, although there was certainly no shortage of information concerning the public and private lives of the President and First Lady, when it came to Chelsea Clinton, her private life was largely out of bounds, and rightfully so. But, does this dichotomy between the public and private lives of public figures exist for therapists and their on-going relationship with the Board of Behavioral Sciences? Do therapists really have private lives? Or, does the BBS· jurisdiction over licensees and registrants extend to actions occurring in the personal lives of such individuals? Although you probably do not have to worry about the paparazzi aiming their cameras through or over your backyard fence to snap photographs of you in your swimsuit, as a licensee or associate you should be aware that the BBS does, in fact, have the power to take action against your license or associate registration for things you have done in your personal life.
Thus, for licensees and associates, the distinction between one’s professional life and one’s private life may be quite easily blurred. Stated differently, a recurring theme in BBS disciplinary cases is that trouble in one’s personal life also creates trouble in one’s professional life. This trouble can result in the imposition of fines, the suspension of licenses and associate registrations, and, in extreme cases, the revocation of licenses and associate registrations, all for things done in the practitioner’s private life. Too many licensees and associates are not aware of this potential danger to their license or associate registration, which looms off the coast of their private lives like a hungry Great White Shark.
Missteps in your private life can affect your professional life in a variety of ways, including, the loss or suspension of your license or associate registration, the loss of your job, whether with a nonprofit organization, a government agency, or a private practice, or public embarrassment by having the details of your “trouble” published in The Therapist. Speaking metaphorically, there is no Great Wall of China, Grand Canyon, or Pacific Ocean completely separating your personal life from your professional life. It is more accurate to see that good conduct in your private life keeps you away from this type of trouble; good conduct keeps the BBS at bay and out of your private life; whereas, bad conduct tends to invite the BBS into your private life. With this reality in mind, the lesson is clear: you must conduct your personal life with the same degree of rectitude you do your professional life.
Keep in Mind the BBS' Role
The BBS is empowered by the State of California to enforce laws ·designed to protect the public from incompetent, unethical, or unprofessional practitioners.1 To fulfill this mission, which is certainly an important and laudable one, the BBS is further empowered by law to refuse to issue any registration or license, or may suspend or revoke the license or registration of any licensee or registrant if the applicant, licensee, or registrant has been guilty of unprofessional conduct.2
But, what exactly is unprofessional conduct? It seems to be a topic as broad and conduct seems to give the BBS latitude to punish a licensee or associate whenever it wants for whatever it wants. This characterization is inaccurate, however. Although the subject of unprofessional conduct is somewhat expansive, there are limits to the BBS’s enforcement power and attorneys representing licensees and associates in these proceedings, by and large, do a good job of ensuring that the BBS exercises its power within the confines of the law.
For LMFTs, the subject of unprofessional conduct is set forth in California Business & Professions Code § 4982 and 16 CCR § 1845. There are also unprofessional conduct sections of law pertaining to clinical social workers and psychologists. Those professions must also struggle with these issues.
For LMFTs, the unprofessional conduct law creates twenty-five areas of jurisdiction for the BBS to operate within. Do something prohibited by one of these areas of jurisdiction and the BBS has the power to enforce discipline against the licensee or registrant.
Most of these areas of jurisdiction, as you would expect, involve things a licensee or registrant does in his or her professional life, meaning they go to the discharge of the therapist’s clinical skills, to how the therapist manages transference and counter transference, and to the state of his or her license, meaning valid or expired. For instance, failing to maintain confidentiality, failing to disclose your fee to your patient before commencing treatment, failing to maintain therapeutic boundaries, practicing with an expired license, violating the rules pertaining to supervision, and engaging in sexual relations with a client within two years of termination, are some of the actions the unprofessional conduct section of the law prohibits.
A few of these areas of jurisdiction, however, have been used by the BBS to punish licensees and registrants for things they have done in their private lives. These “bad acts” do not have to involve activities with patients or even any contact with patients. They are purely things done in one’s private life, but they cause the BBS to wonder whether such person is fit to practice marriage and family therapy. Of the twenty-five potential areas of jurisdiction, two particular sections lend themselves to this sort of application by the BBS. Those sections are §§ 4982(a) and (c):
The Commission of Crimes Substantially Related to the Qualifications, Functions, or Duties of a Licensee or Registrant
Obviously, possessing an intern registration or a license to practice marriage and family expansive as a New Mexico skyline on a cloudless day. The phrase “unprofessional therapy” does not, in and of itself, insulate a practitioner from exercising bad judgment, from having their own personal problems, or from succumbing to one’s personal weaknesses or demons. To a certain extent, we all have personal issues that can, from time-to-time, rear-up and cause us trouble, whether a little or a lot. One such area is the commission of crimes by therapists.
If a licensee or intern is convicted of a crime or pleads no contest to a crime, the BBS will be interested in whether the crime is substantially related to the qualifications, functions, or duties of a licensee or registrant. If the BBS believes that the crime is substantially related, it will institute its own proceedings against the licensee or registrant. Note, however, that there must be an actual conviction or the practitioner must actually plead no contest to a criminal charge to trigger BBS action. The impact that a plea agreement may have on one’s license is something that the licensee or registrant should discuss with his or her attorney before accepting a plea bargain. If the charges are dropped or a jury finds the practitioner not guilty, then there has not been the requisite conviction to trigger BBS action.
A second question the BBS will wrestle with in deciding whether to prosecute a licensee or registrant for unprofessional conduct is whether the crime evidences present or potential unfitness of the individual to practice marriage and family therapy without harming the public. With that said, generally any crime involving dishonesty is going to be punished by the BBS.
Over the years some therapists have committed some very serious crimes, and the BBS has concluded, rightfully so, that the commission of these crimes are substantially related to the qualifications, functions, or duties of a licensee or registrant and they evidence unfitness to practice marriage and family therapy, even though these crimes were committed in the practitioner’s personal life. Such crimes include lewd and lascivious acts with children, embezzlement, welfare fraud, making false statements on a loan application, using and/or distributing illegal drugs such as cocaine, heroin, and methamphetamines, stalking, soliciting sex from an under-cover cop, forgery, indecent exposure, insurance fraud, assault, voluntary manslaughter, receiving stolen property, grand theft, and prostitution.
Sometimes troubled personal relationships set the stage for the criminal activity. Hence, the BBS has punished such crimes as battery against a spouse or former spouse and making criminal threats against a spouse, as crimes constituting unprofessional conduct.
The crimes, however, do not have to be the more serious types of offenses against person or property to constitute unprofessional conduct. The BBS has also punished the following crimes as unprofessional conduct: shoplifting, resisting arrest, disturbing the peace, writing a check with insufficient funds to cover the check, leaving the scene of an accident, and driving with a suspended license. The gist of these crimes involves an element of dishonesty that runs countercurrent to the BBS’s belief that integrity, honesty, and trustworthiness should be possessed by all licensees and registrants in their professional lives and in their personal lives. Let the lesson be clear: crimes you commit in your personal life could affect your professional life!
The Administration of Alcohol and/or Controlled Substances
A second area that allows the BBS to punish a licensee or registrant for things he or she has done in his or her private life is the practitioner’s use/abuse of controlled substances; dangerous drugs, which are drugs dispensed via prescriptions; and/or alcohol. It is important to note, however, that the BBS does not need an underlying criminal conviction for using or abusing controlled substances, dangerous drugs, or even alcohol to mete out discipline. To take action under this section of the law, all the BBS needs are facts, which arise out of the BBS’s investigation of complaints, evidencing use of these substances in a manner that makes the practitioner dangerous or injurious to him or herself or to the public. These facts may have been reported to the BBS by colleagues or patients who have smelled alcohol on the breath of a therapist, have observed a therapist having difficulty walking or standing, have heard a therapist slurring his or her words, or have found a therapist in some sort of stupor.
Sometimes, however, there is an underlying crime that puts the BBS on notice. The most common crime is a charge of driving while under the influence of alcohol. All it takes is one conviction of a DUI charge for the BBS to get involved because the charge of driving while under the influence of alcohol evidences poor judgment by the practitioner as well as a situation where the practitioner places himself or herself and the public in danger because of impaired driving. If you are out partying, do yourself and the rest of us a favor and utilize a designated driver, call a friend, or call a cab. Don’t drive while intoxicated! You worked too hard to get your license, and it is not a fair trade to lose it because of a DUI conviction. Moreover, if you believe you have a substance abuse problem, get help as soon as possible. Get yourself healthy so that you can provide the best possible care to clients who are depending on you to exercise your best judgment when addressing their personal problems. Keep yourself healthy so that your substance use does not impact your license.
Another problem that surfaces in this area is so-called alcohol-fueled behavior, meaning that while intoxicated the practitioner did something that he or she would probably not have done when sober. Such crimes include battery against spouses and third parties and indecent exposure.
Yet another problem is created when the practitioner’s use of alcohol and/or other drugs exacerbates his or her mental illness, such as depression or bipolar-disorder. Obviously, just being bi-polar does not, in and of itself, disqualify one from being a therapist, but it does raise on-going obligations to manage the illness. Abstaining from alcohol and controlled substances, and using prescription medications in the manner prescribed will undoubtedly help such a person manage his or her illness.
Let the lesson be clear: using controlled substances, dangerous drugs, and/or alcohol in your personal life in such a manner that makes you dangerous or injurious to yourself or the public could impact your professional life.
1 California Business & Professions Code § 4980.34(c)
2 California Business & Professions Code § 4982