Attorney Articles | Scope of Practice
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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.

Scope of Practice

Scope of Practice. Questions often arise regarding the breadth of the scope of practice of the marriage and family therapist professional, or with regard to any profession or professional . What is a scope of practice? And, how does it differ from a scope of competence? If challenged, can you articulate your scope of practice?

by: Mary Riemersma, Former Executive Director
The Therapist
(July/August 2001)
Reviewed October, 2017 by Michael Griffin, JD, LCSW (CAMFT Staff Attorney)


Questions often arise regarding the breadth of the scope of practice of the marriage and family therapist professional, or with regard to any profession or professional for that matter. But, what is a scope of practice? Marriage and family therapists are creatures of the law. The legal authority for an LMFT to practice comes from the Business and Professions Code, Attorney General Opinions, and other legislative and regulatory authority. A “scope of practice” is the definition provided in law that delineates what the profession does and places limits upon or confines the breadth of functions persons within a profession may lawfully perform.

How does a “scope of competence” differ from a “scope of practice?” Scope of competence also defines or limits what the individual within the profession may do and is determined by one's education, training and experience. These two scopes tend to overlap, and in some cases, go hand in hand. One, when practicing marriage and family therapy, has a duty to work within one's scope of practice, but is also limited by scope of competence. Scope of practice is defined for the profession as a whole; scope of competence is individually defined/determined for each marriage and family therapist. Therefore, even though it may be within one's scope of practice to work with a person diagnosed with borderline personality disorder, for example, it may be outside of that LMFT’s scope of competence if he or she has never worked with an individual with such a diagnosis, or, if he or she has limited education or training in working with such a disorders.

The next question in this scenario is, how does a person, once licensed, expand his/her scope of competence in order to acquire what is necessary to work with such persons?

Simply stated, in order to expand one's repertoire, the LMFT may acquire continuing education, take additional coursework, read relevant literature, watch relevant videos, read relevant information online, seek clinical consultation or obtain training or supervised experience.

On the other hand, one may have the competence to provide treatment, but may be limited because of scope of practice. For example, even if an LMFT had sufficient knowledge and competence to extract a tooth, doing so would be prohibited by law and outside of his or her scope of practice as a licensed marriage and family therapist. Working outside of one's scope of practice and working outside of one's scope of competence are both violations of law. Section 4982 (l) of the Business and Professions Code provides that therapists engage in unprofessional conduct when: “Performing, or holding one’s self out as being able to perform, or offering to perform, or permitting any trainee or registered associate under supervision to perform, any professional services beyond the scope of the license authorized by this chapter.” Section 1845 (a) of California Code of Regulations also provides that: “Performing or holding himself or herself out as able to perform professional services beyond his or her field or fields of competence as established by his or her education, training and/or experience” is considered to be unprofessional conduct.

In examining the breadth of the scope of practice of the marriage and family therapist in California, one must dissect the legislative authority for marriage and family therapists.

Business and Professions Code Section 4980.02, among other things, provides: “The applications of marriage and family therapy 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.”

The phrase, “includes, but is not limited to,” is most important. This phrase demonstrates that the scope is broad and expansive. What one does as an LMFT is not limited to only the specifically mentioned aspects of the scope of practice section of the law.

That phrase, “includes, but is not limited to,” makes the scope of practice and what one does within one's scope of practice somewhat arguable, yet defendable, given all of the facts and circumstances of a particular situation. Marriage and family therapists must become adept at substantiating that their work is within their scope of practice, should it become necessary to defend how one's work was indeed within one's “scope of practice.”

The excerpt above includes “the use of applied psychotherapeutic techniques.” Thus it follows that since LMFTs may use applied psychotherapeutic techniques, they may do psychotherapy, or they may diagnose and treat. It would be nonsensical to think that one could apply a technique, but then could not fulfill the purpose for which the technique is intended or used.

Further, as stated in the excerpt, “to enable individuals...,” it is clear that LMFTs have the statutory authority to work with individuals, and are not limited to working solely with children, couples, or families.

"Within marriage and the family” is merely the context within which marriage and family therapists focus. LMFTs look at the individual and his/her identified problem(s) or issue(s) within the context of his or her relationships, marital, familial or otherwise-which may include work relationships or other relationships outside of marriage or family, rather than examining the individual within a vacuum. This is somewhat the same as the clinical social worker who treats the individual within his/her societal or social environmental context.

This question may arise: “What about the treatment of individuals who are not married or are not involved in relationships?” If there is such a person, it may be arguable that treating such person is outside of the LMFT scope of practice. However, virtually every person, with the exception of a hermit, is involved in relationships of some kind. Of course, even work with a hermit could arguably be within one's scope of practice as the work could likely focus on the need for and lack of healthy relationships with others. Work and school relationships mirror family relationships, exhibiting similar problems and difficulties. Virtually everyone has parents, grandparents, or siblings, or persons in their lives that resemble familial relationships. Even the person with schizophrenia may live in a group environment in which he or she must relate with others. The patient's mental state or disorder is regularly either impacted by or may affect these other relationships. Therefore, a patient's problem or issue can often not be addressed in a vacuum, and it can be beneficial to address the patient's problem in the context of his/her relationships. Thus, the profession of marriage and family therapists. Marriage and family therapy is not a limitation, it is a context within which to address mental, emotional, or nervous disorders to the betterment of individuals, couples, families and groups.

At the end of this article, you will see the three scope of practice sections from the marriage and family therapist licensing law, the clinical social work licensing law, and the psychology law. As you will note, all three are somewhat vague, ambiguous, and generic. Of course, each profession has the duty to work within the scope of practice for the profession in which he or she is licensed. Further, he or she has the duty to not infringe upon the license of another profession, if such infringement is prohibited.

Regardless of the specific scopes of practice of each licensing law, you will generally hear each of the professions rightfully contend that what their profession does is not limited solely to what is contained within the specific definition of their scope of practice, but is further defined by the entirety of their licensing law and regulations and other related legislative authority. For example, none of the laws say that a practitioner may or may not use biofeedback or EMDR, or any other particular therapeutic technique. These techniques, nevertheless, may be utilized as long as one is working within his or her scope of practice, e.g., not treating a physical problem, and as long as one is working within his or her scope of competence as determined by his or her education, training and experience. Likewise, you do not see any of the scope of practice sections limit the kinds of mental disorders that the professionals they license may treat. Consequently, any such treatment is limited only to one’s scope of competence. (Reminder-competence is determined by education, training, and experience).

Further, compare and contrast the LMFT scope of practice with the psychologist’s scope of practice, wherein psychotherapy is, for that purpose, defined as: “...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…” One would have difficulty making the argument that a marriage and family therapist or a clinical social worker does not likewise lawfully perform such a service.

Generally, the legal ability or authority of the LMFT to diagnose and treat mental disorder is at the heart of questions regarding the LMFT scope of practice. Returning to the language identified above, “including, but not limited to,” it is clear one must look at the entire licensing law as well as other legislative authority that recognizes marriage and family therapists to define the breadth of practices in which they are entitled to engage.

When examining the educational requirements as contained in the licensing law, Business and Professions Code Section 4980.37(e)(1) provides that degree programs must contain “an integrated course of study that trains students generally in the diagnosis, assessment, prognosis and treatment of mental disorders.” Obviously, there would be no point in providing such training if the licensed marriage and family therapist was not permitted to diagnose, assess, or treat mental disorders. Further, we see nothing that limits the study or training to diagnosing and treating only the less severe mental disorders.

An Attorney General's Opinion, dated March 24, 1975, in addressing, among others, the question, “To what extent may licensed marriage, family and child counselors practice psychotherapy," represented: “...The Legislature did not, however, provide further statutory definitions as to what constitutes the use of 'applied psychotherapeutic techniques.' Nor did the Legislature expressly limit marriage counselors to the use of some, but not all, ‘applied psychotherapeutic techniques.’” This opinion further concluded, “...licensed marriage counselors may use ‘applied psychotherapeutic techniques' and hence practice ‘psychotherapy.’ However, the use of such ‘applied psychotherapeutic techniques’ is limited to the practice of marriage counseling, as defined...Said practice would be further limited...to the field or fields of competence as established by the ‘education, training and experience’ of the individual licensed marriage counselor.” Attorney General's Opinions are not law, but are intended to interpret law, and are generally afforded great weight and respect.

When examining the experiential requirements for trainees as contained in the licensing law, Business and Professions Code Sections 4980.36 (d)(1)(B)(iv) and 4980.37 (c)(1) provides that degree programs for LMFTs shall contain supervised practicums “in applied psychotherapeutic techniques, assessment, diagnosis, prognosis, and treatment of premarital, couple, family, and child relationships, including dysfunctions, healthy functioning, health promotion, and illness prevention...” Even trainees, who are generally neophytes when working with clients, are expected to “diagnose as well as treat.”

When reviewing the written and oral examinations administered to aspiring marriage and family therapists, these exams are replete with items and questions relating to diagnosis and treatment.

Thus, given the above examples from the licensing law and reviewing the content of the oral and written examinations for LMFTs, it is clear that the licensing board and licensing law supports the fact that LMFTs may not only treat, but may also diagnose mental disorder. It is further clear that when so doing, one is working within his or her scope of practice.

Additionally, LMFTs are authorized providers of psychotherapy in most insurance plans and in the Federal government's TRICARE program. Marriage and family therapy is, of course, not the covered benefit, the covered benefit is the diagnosis and treatment of a mental disorder. LMFTs are specifically named in California's “freedom of choice” laws giving patients the right to choose the mental health provider of their choice. LMFTs are granted provider status with most managed care companies including HMOs, PPOs, EAPs, etc., and once again, generally only for the diagnosis and treatment of mental disorder. LMFTs are covered providers in the California Victims of Crime Program, and are reimbursed under California's Workers Compensation laws. LMFTs are credentialed by and diagnose and treat mental disorders in a variety of state-licensed hospitals and the state's correctional treatment centers. The California Department of Mental Health has taken the position that LMFTs may diagnose and treat the severely mentally disordered and their services are regularly reimbursed by the state’s MediCal Program. Such acknowledgements support the fact that it is within an LMFT's scope of practice to not only treat mental disorders, but likewise to diagnose mental disorders.

One issue that regularly arises in the course of discussing the LMFT scope of practice is, may the LMFT lawfully administer and evaluate psychological tests. The answer to this question is, of course, like any other work, limited to one's scope of competence. Further, according to a 1984 Attorney General's Opinion, LMFTs have the statutory authority to construct, administer, and interpret psychological tests as long as such testing is done within the course of one's practice-i.e., must be done with patients one is also treating.

Finally, is the LMFT scope of practice worded as clearly as it should be? Is it as broadly stated as the practice has evolved? Wouldn't it be better if it fully encompassed the wide array of services lawfully performed by LMFTs? The answer to these questions are, no, it is not as clear or broadly stated as it should be; and yes, it would be better if it were amended to include all that an LMFT may lawfully perform. However, the Scope of Practice Section of the Business and Professions Code has not been modified due to the extreme difficulty encountered in attempting to bring about such change. Even though intended to clarify and not expand, the opposition would perceive the undertaking as an attempt to expand the scope of practice. The outcome would likely not be worth the war that would ensue. Further, by opening the scope of practice for legislative debate, we would run the risk of losing ground (potential amendments that would not be of benefit to the profession), or clarifying existing language that is currently broadly stated and subject to interpretation could become more restrictive or more limiting (as the language is currently written, because it is subject to some interpretation, it is arguable and such argument can benefit the profession).

Meanwhile, how can a marriage and family therapist determine if he or she is working within his or her scope of practice? To answer this question when you are uncertain, ask yourself the following questions:

  1. Does the need for treatment stem from issues involving the patient's relationships, including, but not limited to: marital, other conjoint, family, work, pre-marital, household, extended family, sibling, or other relationships?
  2. Does the need for treatment impact upon the patient's relationships with others, including, but not limited to: marital, other conjoint, family, work, pre-marital, household, extended family, sibling, or other relationships?
  3. How would your peers (other LMFTs) evaluate whether or not you were working within your scope of practice?
  4. What would your professional association say, if given all of the facts, about whether or not you were working within your scope of practice?
  5. What do you believe would be the position of the Ethics Committee for your professional association?
  6. What would the licensing board say, if given all of the facts, about whether or not you were working within your scope of practice?

If you can answer yes to either question 1 or 2, and you have defensible answers to question 3 through 6, it is safe to say your work would be within the scope of practice of the marriage and family therapist. Further, if you also have the competence (as determined by education, training, and experience) to provide the treatment, not only would you be working within your scope of practice, you would also be working within your scope of competence. If challenged, your lawful ability to provide such treatment would be readily and reasonably defensible.

Compare and Contrast the Scopes of Practice for the LMFTs, LCSWs, LPCCs, and licensed psychologists:i

Licensed Marriage and Family Therapists Business and Professions Code 4980.02

For the purposes of this chapter, the practice of marriage and family therapy shall mean that service performed with individuals, couples, or groups wherein interpersonal relationships are examined for the purpose of achieving more adequate, satisfying, and productive marriage and family adjustments. This practice includes relationship and pre-marriage counseling. The application of marriage and family therapy 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, the provision of explanations and interpretations of the psychosexual and psychosocial aspects of relationships, and the use, application, and integration of the coursework and training required by Sections 4980.36, 4980.37, and 4980.41, as applicable.

Licensed Clinical Social Workers Business and Professions Code 4996.9

The practice of clinical social work is defined as a service in which a special knowledge of social resources, human capabilities, and the part that unconscious motivation plays in determining behavior, is directed at helping people to achieve more adequate, satisfying, and productive social adjustments. The application of social work principles and methods includes, but is not restricted to, counseling and using applied psychotherapy of a nonmedical nature with individuals, families, or groups; providing information and referral services; providing or arranging for the provision of social services; explaining or interpreting the psychosocial aspects in the situations of individuals, families, or groups; helping communities to organize, to provide, or to improve social or health services; or doing research related to social work and the use, application, and integration of the coursework and experience required by Sections 4996.2 and 4996.23.

Psychotherapy, within the meaning of this chapter, is the use of psychosocial methods within a professional relationship, to assist the person or persons to achieve a better psychosocial adaptation, to acquire greater human realization of psychosocial potential and adaptation, to modify internal and external conditions which affect individuals, groups, or communities in respect to behavior, emotions, and thinking, in respect to their intrapersonal and interpersonal processes.

Licensed Professional Clinical Counselors Business and Professions Code 4999.20

Professional clinical counseling means the application of counseling interventions and psychotherapeutic techniques to identify and remediate cognitive, mental, and emotional issues, including personal growth, adjustment to disability, crisis intervention, and psychosocial and environmental problems.

Professional clinical counseling includes conducting assessments for the purpose of establishing counseling goals and objectives to empower individuals to deal adequately with life situations, reduce stress, experience growth, change behavior, and make well-informed, rational decisions.

Professional clinical counseling is focused exclusively on the application of counseling interventions and psychotherapeutic techniques for the purposes of improving mental health, and is not intended to capture other, nonclinical forms of counseling for the purposes of licensure. For purposes of this paragraph, "nonclinical" means nonmental health.ii

Psychologists Business and Professions Code 2903

No person may engage in the practice of psychology, or represent himself or herself to be a psychologist, without a license granted under this chapter, except as otherwise provided in this chapter. 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 these 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. As used in this chapter, "fee" means any charge, monetary or otherwise, whether paid directly or paid on a prepaid or capitation basis by a third party, or a charge assessed by a facility, for services rendered.

You decide-scope of practice or scope of competence?

  1. Jack, an LMFT with a Ph.D., 27 years of clinical practice, and thousands of hours administering psychological tests for various therapy clients, is contracted with to administer and evaluate the MMPI for the Human Resources Department at IBM.
  2. Jill, an established and well-respected LMFT is asked by a patient to use "EMDR." Jill is not trained in EMDR, yet she spends twenty minutes researching it on the Internet, registers with the EMDR Council, and begins to apply the technique.
  3. Dick, an LMFT with three years of practice mostly working with couples, begins to treat Daryl. Daryl turns out to also be Kevin, Cory, and Lucy. With no consultation, Dick continues to treat for multiple personality/dissociative disorder.
  4. Jane an LMFT who specializes in domestic violence is treating a battered woman at a free clinic. Her client does not have insurance and cannot afford to see a doctor. Jane tells her that she can get medications to help her sleep at night, and gives her a website where she can get such medications without prescriptions.

Answers:
1. Scope of practice
2. Scope of competence
3. Scope of competence
4. Scope of practice

_______________________________________

i Please note that the information listed in this article may not include all of the content stated in sections 4980.02, 4996.9, 4999.20 and 2903 of the Business and Professions Code concerning the scope of practice of marriage and family therapists, clinical social workers, professional clinical counselors and psychologists.

ii Professional clinical counseling does not include the assessment or treatment of couples or families unless the professional clinical counselor has completed additional, training and education, specified in Section 4999.20.