On the Lighter Side

Put 'Em Up, Pardner!"

Martin H. Williams, Ph.D.

I was watching an old John Wayne western at 2 AM as a break from the mountain of managed care forms I still needed to fill out. It made me long for the days when things were simpler: Psychologists wore white hats and helped people. No one looked over their shoulders or played managed care Mother May I. What if things could be that simple again? Then I realized there still are cowboys who live in a world of good guys and bad guys, who, in their own jurisdictions, are THE LAW, who still shoot from the hip, and who dish out frontier justice just like Sheriff Duke and his posse. I found myself going into a fugue state, dissociating and actually seeming to become the chair of a state psychology board. I heard the announcer from the old Lone Ranger television show saying, "...we take you back to those bygone days of yesteryear to the world of The State and Provincial Boards of Psychology."

***

I haven't yet figured out how I became the two-gun-slinging head of this here Wild West licensing board, but it sure is fun. You know how John Wayne gets to dish out justice at his whim? The only due process you get from the Duke is the process of burying those whom the sheriff has deemed unfit to dirty up his town. That's exactly the kind of fun us state boards have. We just go a ridin' into town, a whompin' and a whumpin' every boundary violatin' psychologist we see, while a yellin' guilty until proven innocent, you no good humanistic, pantywaisted sidewinder." Then we lassoo the psychologist, tie him to a horse, whip the horse and watch the fun.

To briefly change genres and paraphrase Clint Eastwood as Dirty Harry, "I know what youre thinking, punk. You're thinking this is a light comedy article, and the author is taking liberties with the facts in order to have some fun. You're thinking 'the licensing board can't hurt me.' Well, punk, I just have one question: Do you feel lucky... Well, do you, punk?" Now, to return to our Wild West argot, wake up and smell the whisky, pardner, because in real life licensing board justice has more in common with frontier justice than you might think.

As diligent students of law, we all followed every second of both O.J. trials. As a result, we are well acquainted with two kinds of legal proceedings: criminal and civil. Each has its own burden of proof: beyond a reasonable doubt, by a preponderance of evidence, or whatever (as if jurors have the ability to adjust their subjective decision-making apparatus according to the judge's instructions). Being the up and coming jurists that we all now think we are, we would decisively proclaim that there are two different types of legal proceedings, criminal and civil, and then expound on their similarities and differences. Most listeners would be impressed that we seem to know about all the different kinds of justice.

Well, pardner, maybe they have only two kinds of justice over in England or France or Europe somewhere, but wherever there's a licensing board--and I'm a talkin' all 50 states--there's a third kind of justice called Administrative Law, and it's neither civil nor criminal. It's hang 'em high frontier justice, and the Sheriff always wins. You know the part in the Western where the extra playing "Townsfolk Number 3" says, "Let's give him a fair trial and then hang 'em?" Well that's just like administrative law. It's what governs licensing board proceedings, it offers few of the protections of civil or criminal justice, and it's what you--the no good sidewindin' psychologist, accused of a board violation--face when the board comes after you.

I'll begin my explanation of administrative law, by explaining the role of the judge. The judge, technically called an administrative law judge, or ALJ, is what the Duke might call a city slicker. This here ALJ puts on some fancy clothes and then sits on a nice wooden chair and listens as the Deputy Attorney General shoots some poor psychologist full of holes--and there ain't no statute of limitations on them bullets, neither. Then the psychologist has his city slicker lawyer try to put on a defense. Finally, the psychologist gets punished and pays all the costs of the board in mounting the prosecution. For reasons I'll be explainin' it don't hardly matter none whether the psychologist puts on a defense or not. He or she is a goin' to Boot Hill, or in the relevant vernacular, gettin' some sanctions--including possible and not infrequent--revocation of license.

If you greenhorns out there wanted to put away a whole lot of psychologists for minor licensing infractions, you'd think you would need to get yourself a bunch of mean-as-a-snake, ornery, conservative, uptight, anti-social science, hanging-judges to serves as your ALJ's. Wrong, pardner! The beauty of administrative law is that who the judge is and what the judge says don't make no never mind.

The city slicker ALJ can proclaim, following a quick, frontier-style hearing, that Dr. Mary X., should take an ethics course as a sanction for having given a patient an interest free loan. Dr. X might have been investigated by the board after the former patient filed a complaint when Dr. X had tried to collect on the delinquent loan. At this hearing, Dr. X has no right of discovery, can't depose the State's witnesses, and might be held to a standard of care regarding prior behavior that the State's expert witness just dreamed up that day based on what the expert and his or her tiny circle of friends used to believe was the right way to practice at the time the offense occurred.

After hearing the ALJ's decision, Dr. X would feel angry that the punishment seemed rather severe--especially since she is also required to pay the Board's entire costs of investigating and prosecuting her--and relieved because she knows the Board could have hurt her worse. Poor Dr. X, though, is in for a big surprise. The board has the authority to set aside the ALJ's decision on sanctioning. Dr. X gets a letter telling her to surrender her license in 48 hours. Revocation is the boards way of hanging 'em high, and they can do it regardless of what the ALJ says. If you dont believe me, go get your own city slicker lawyer and ask about administrative law. Some cowboy, name of State Senator Vasconcellos, out in San Jose or somewhere in California, is a tryin to do something about this with Senate Bill 1212. If'n it passes, it'll help psychologists in California, but it won't do much for the rest of the nation, such as Montana, Wyoming and back East in Missouri.

But the milquetoast judge is only part of the fun. As a licensing board, you get to hire investigators too. These investigators are your posse, and they actually go out in the field and track down the varmints so the ALJ can pass sentence. Let's say some varmint was once a humanistic psychologist--a real outlaw-type with long hair, a beard, and maybe, back in the late 60's, even wore a black hat. Let's imagine further that in those days of the Wild West, this black-hatted outlaw had a sexual relationship with a former patient after treatment. The reason those days were like the Wild West is that those kinds of post-termination sexual relationships were neither prohibited by ethics codes, nor were they consensually held to be wrong (according to questionnaire surveys done by a bunch of East Coast egg heads who probably have never been west of Columbus Circle). Nevertheless, for those cowboys who can read, the Executive Officer of the California Board of Psychology said in print that that sort of thing has always been considered wrong, even if it wasn't part of any written ethics code, and you will be revoked for it no matter when it occurred. And believe me, when we want to put some psychologist six-feet under, we won't be bringing in the ghost of Fritz Perls as our expert witness. Instead, we'll be hiring us a preacher-type who sees eye to eye with us about what's right and what oughta be right.

So this fun scenario plays out like this. Me and my posse will be hanging around the psychology board offices just a whilin' away the time playing our harmonicas. My posse, called licensing board investigators, ain't exactly too swift, if'n you know what I mean. They do each possess a high school diploma--which, in the Wild West, is a lot of education--but they basically are your beady eyed, paranoid, low-life, drinkin' and spittin', shoot-from-the-hip posse members that you see in every Western. They have absolutely no training in psychology, and they don't want none. In fact, my boys laugh at psychology. Let's face it, psychology ain't exactly a manly profession like cattle punchin', if'n you catch my meaning.

After a while, a young psychologist drops by wanting to know what she should do when a patient reveals a sexual relationship with an ex-therapist. One of my posse tells the psychologist she needs to give the patient the pamphlet that tells people how to file complaints with the Board. The psychologist asks whether she really needs to do that, since the sexual relationship occurred about 25 years prior. "Heck, yes, you low-down, dirty young whippersnapper. We don't care when the violation occurred, and if you don't give out that pamphlet then you're a violator and well be coming after you. Now dance. We got us a gol-darned quota to meet," and we start shooting in the dirt right next to her Gucci sandals while laughing our fool heads off and swilling frontier rotgut right out of the bottle.

Next thing I do is send some of my investigators out to meet with the former victim. As the Duke would say, "Boys, get out there and find out exactly what happened there between Miss Kitty and this here doctor--and make sure you find out what I want you to find out--if'n you get my drift." I hope none of you are thinking this will be an impartial investigation because --guess what--there is no requirement that the investigators gather exculpatory evidence. In other words, if I'm going to be spending my state budget going after some low-down, dirty, perverted, pot-smoking, starched shirt, Harvard educated varmint, you can be darned sure I'll be getting me a favorable judgment. Thus, when my boys meet with Miss Kitty, they won't be too easy on her if'n she starts backtracking and trying to weasel out of the complaint filing process. Miss Kitty, being a psychotherapy patient, might be a troubled individual, and that's exactly the kind of person my boys like to, let's say, persuade to do the right thing.

Similarly, when my boys meet with Dr. Varmint, they won't be a writin' down his statement that he has never done such a thing in the past 20 years and never would again. They wont be a writing any of his mealy-mouthed double talk about that having been a different era. They will be recording his confession, though, if he honestly admits that, in those bygone days of yesteryear, he did do what Miss Kitty says he did. He can just kiss his little ol' license good bye and end all his ambivalence about trying to survive as a psychologist in the age of managed care because were going to be shooting his license so full of holes, there won't be nothin left for him to surrender. The final fun thing about my licensing board is the APA Ethical Principles of Psychologists and Code of Conduct. My, oh my, is that ever an all encompassing document. It kind of reminds me of the Holy Bible in the sense that you can find anything you want in there. It's the tool that helps the boards' hired guns put away psychologists, and it sure makes their job easy. Getting an expert witness to find a violation in that ethics code is as easy as shooting fish in a barrel--and twice as much fun. Here's an example I just made up while I was biting off a big chaw of tobacco: It says in the Code that psychologists have to recognize "the boundaries of their particular competencies and the limitations of their expertise." Now let's say some big city Jungian analyst, in the middle of a session, has a chat with a patient about gardening. Let's say this here Jungian tells the patient that growing sunflowers would be a good way to symbolize something or other. Bingo! It's not sunflower season, the analyst has gone beyond his or her expertise, and we have ourselves an ethics violation. You may find my example far fetched, but I'll wager you a dollar to a day's pay that I can find a sanctionable violation in your practice any day of the week. Look me in the eye, my friend, and tell me that you've been having all your patients sign a fully comprehensive written disclosure at the outset of treatment--and that's just for starters. By the way, my expert witnesses don't really take a fancy to going after psychiatrists because their ethics codes are less comprehensive and don't result in a good hangin'. They'll say to me, "jes give me one of them psychologists, and we'll have us more fun than a buckin' bronco with hiccups."

***

Wait. Where am I? Oh, I must have fallen asleep. Well, back to work... "Dear managed care company. I will need to see Mr. Smith for four extra sessions because...."

Jeff McKee
Saturday, April 25, 1998