TABLE OF AUTHORITIES

INTEREST OF AMICI

INTRODUCTION AND SUMMARY OF ARGUMENT

ARGUMENT

I. LICENSED PSYCHOLOGISTS ARE FULLY TRAINED AND QUALIFIED TO PROVIDE COMPREHENSIVE MENTAL HEALTH SERVICES TO PATIENTS WITHIN AND WITHOUT THE HOSPITAL SETTING

A. Psychologists are Qualified to Independently Provide Comprehensive Mental Health Services

1.The Doctoral Degree
2.Licensure and Certification
3.Ethical Codes and Professional Standards


B. Psychology is Recognized as an Independent Profession

A. Mental Disorders Are Not Neatly Separated Between Those With Organic Bases and Those Without

B. Frequently, Physicians are Incapable of Detecting the Presence of Organic Brain Injury and Fail to Recognize the Emotional and Behavioral Components of Such Injury

III. CLINICAL PSYCHOLOGISTS ARE QUALIFIED AND COMPETENT TO DIAGNOSE ORGANIC DISORDERS INVOLVING INJURY TO THE CENTRAL NERVOUS SYSTEM, INCLUDING THE BRAIN

IV. PSYCHOLOGISTS ARE VALUED MEMBERS IN MEDICAL SETTINGS AND AS INDEPENDENT PROFESSIONALS PERFORM ESSENTIAL FUNCTIONS NOT WITHIN THE EXPERTISE OF THEIR PHYSICIAN COLLEAGUES

A. Psychologists as Independent Providers of Services on Psychiatric Wards

B. Psychologists As Independent Consultants in Medical Treatment

V. THE RECOGNITION OF PSYCHOLOGISTS AS INDEPENDENT PROFESSIONALS SERVES A NUMBER OF PROCOMPETITIVE PURPOSES INCLUDING LOWERED HEALTH CARE COSTS AND MORE EFFECTIVE COLLABORATION AMONG MENTAL HEALTH PROVIDERS WITHOUT ANY HARM TO PATIENT CARE

A. Physicians, Particularly Psychiatrists, have Historically Made and Continue to Make Attempts to Preclude Psychologists from Participating as Members of Hospital Staffs

B. The Full Recognition of Psychologists as Independent Professionals Supports Patients' Health Care Interests and Furthers Effective Collaboration Among All Mental Health Providers

CONCLUSION

FOOTNOTES

The interest of Amici American Psychological Association (APA) and the California State Psychological Association (CSPA) are set forth in their Application for Leave to File Brief as Amici Curiae in Support of Plaintiffs/Respondents.

In arbitrarily restricting psychology's scope of practice in hospitals to a presumed set of mental disorders not organic in origin, the Court of Appeal rendered a decision devoid of empirical or legal justification. Although it may have intended to engage in the task of statutory interpretation it soon converted its role to that of super-legislature. Despite its apparent good intentions, the decision serves the interests of those who seek to perpetuate anachronistic, anticompetitive stereotypes, and deprives members of the public of their freedom to use the qualified mental health professional of their choice, to effective and continuous care, and of the opportunity to receive cost-effective mental health services when the spiraling expenditures for health care is of national concern. This Brief Amici Curiae seeks to supply corrective information without duplicating the arguments of Plaintiffs/Respondents whom amici support.

Psychologists are uniquely trained independent professionals who are well qualified to provide mental health services in a wide range of settings, including hospitals. Before psychologists in this State can practice independently they undergo a rigorous education leading to a doctoral degree, involving didactic coursework (including the biological bases of behavior), clinical practica, and a one year full-time closely supervised internship in hospitals, medical centers, or clinics. This is followed by a postdoctoral year of supervised experience and demonstration of academic knowledge and clinical skills on both written and oral examinations. Only then is a psychologist in California permitted to engage in the diagnosis, prevention, treatment, and amelioration of all mental disorders. That licensed psychologists are recognized as independent providers of mental health services is clear by virtue of a substantial number of federal and California statutes, overlooked by the court below, which leave no question that psychologists are authorized to diagnose and treat mental disorders with the use of any techniques consistent with the scope of their licensure and their competence. Point I.

California's licensure law makes no distinction between types of disorders psychologists are authorized to diagnose and treat. The scientific literature does not support the appellate court's assumption that mental disorders can be divided into those that are organic in origin and those that are not. It does show that many physicians routinely fail to recognize psychologically based disorders, the presence of organic brain injury, and the emotional and behavioral components of such injury. Point II. Psychologists, on the other hand, are qualified and competent to diagnose organic disorders, including injury to the brain, through the use of objective and valid tests which uncover the presence, site, and extent of injury that often elude standard medical and psychiatric procedures. Point III.

The data show that psychologists have been relied upon by the health care system to diagnose and treat mental disorders irrespective of cause. Through comprehensive psychological assessment, development and implementation of treatment plans, and the evaluation of those plans, psychologists, as independent professionals, have created substantial benefits to patients hospitalized with severe mental disorders such as schizophrenia and manic-depressive psychoses (both now recognized as having significant organic components). As a result, hospital stays for these patients have been significantly reduced. Further, psychologists have successfully treated patients with physical disorders for whom no medical treatment is available and for patients for whom psychological intervention is a necessary concomitant of medical treatment. Point IV.

Finally, recognizing psychologists as independent competing professionals will benefit consumers by offering greater choice of providers and treatment alternatives at reduced cost. The ethical and professional standards of psychologists and hospital accrediting agencies, as well as California law, protect patients, and ensure that they will receive all required medical care. The appellate court's decision not only is unnecessary to that outcome but it unreasonably discriminates against psychologists, disserves the public interest, unduly interferes with patients' freedom of choice, and is in sharp conflict with current and accepted practice. Point V.

The appellate court held, in the absence of any trial court record, that only physicians may diagnose patients whose mental disorders are organic in origin or develop treatment plans in those cases where the mental disorder "is susceptible to treatment by drugs, surgery, or electro-convulsive therapy [ECT] . . . ." Opinion at 12 (emphasis added). The court ruled that in those cases physicians must have "initial and ultimate responsibility," for such patients. Id. In perpetuating physician domination of diagnosis and treatment of patients hospitalized for mental disorders, the court lacked awareness of the qualifications and skills of psychologists, failed to understand the ethical, professional, and hospital-based constraints under which psychologists work, precluding the negative effects on patient care the court contemplated, and overestimated the role of psychiatrists and other physicians in independently and unilaterally diagnosing mental disorders organic in nature or origin 1/. So this Court may render a more informed opinion concerning the issues in this case, each of these topics are discussed in turn.

A. Psychologists are Qualified to Independently Provide Comprehensive Mental Health Services.

The practice of psychology, as defined by this State, encompasses the rendering of services involving the application of principles, methods, and procedures for understanding, predicting and influencing behavior, including diagnosis, prevention, treatment, and amelioration of psychological problems and emotional and mental disorders to individuals and groups. Cal. Bus. & Prof. Code § 2903 (emphasis added). Psychologists, by virtue of their training and experience, are recognized as fully qualified to diagnose and treat all mental disorders so long as that treatment does not involve drugs, surgery or ECT. Id. at § 2904.

The entry level degree for psychologists is the doctorate. Generally, a doctoral level program in clinical psychology requires four to five years of rigorous and extensive didactic and field placement experience, with approximately three years devoted to coursework and practica, one year to a full time supervised internship at a hospital, clinic, or other training center, and one year of research.^2/

All clinical psychology programs combine the teaching of basic science and methods of psychology with the theory and techniques of clinical practice. In addition to developing competence in such skills as diagnosis and treatment, students gain a sound graduate education in the cognitive and affective bases of behavior (e.g., learning, memory, motivation and emotion), social bases of behavior (e.g., group processes and organizational theory), and individual behavior (e.g., personality theory, human development, and abnormal psychology). Most relevant, clinical psychology programs provide for education in the biological bases of behavior, including, for example, physiological. psychology, neuropsychology, and psychopharmacology. See APA Accreditation Handbook (1986) at B-6.

Internship training, an essential component of doctoral training in clinical psychology, provides doctoral students with the opportunity to take substantial responsibility for carrying out major professional functions in the context of close and careful supervision. See Id. at B-17. Of 342 internships accredited by APA as of July 1988, 233 (65.2%)are in hospital settings. ^3/ Several internships programs now offer training in hospital emergency rooms.^4/

The combination of these intensive educative and training experiences ensure that clinical psychologists are fully prepared to render independent psychological services. As a result of their solid grounding in the scientific method and the scientific foundations of mental disorders, as well as the acquisition of skills in the diagnosis, assessment, and treatment of all mental disorders, there is no question that they possess the ability to diagnose mental disorders organic in origin, and to uncover those disorders that are not simply environmentally caused.

At present, and since 1977, all 50 states and the District of Columbia have enacted laws regulating the practice of psychology.^5/ Most state licensure laws, like California's, establish as the minimum requirements for independent practice the doctoral degree in psychology (or its equivalent) plus two years of supervised experience (with at least one of those at the predoctoral level). ^6/

State examining boards administering laws regulating the practice of psychology also require that applicants pass an examination, either written, oral, or both. California's test covers all major substantive areas in psychology, including physiological and biological aspects of behavior. In addition, as in other states, California requires applicants to undergo an oral examination in which they exhibit skill in recognizing disorders, including those organic in origin, and demonstrate a full understanding of their duty to refer patients to physicians for medical care.

To further ensure a high quality of professional practice, states have adopted ethical codes identical or quite similar to the APA's Ethical Principles of Psychologists^7/Among other requirements, the Principles mandate that "[p]sychologists recognize the boundaries of their competence . . . [and] provide services and only use techniques for which they are qualified by training and experience." Id. at 634 (General Principle 2). They require psychologists to "understand the areas of competence of related professions," "make full use of all the professional . . . resources that serve the best interests of consumers," and obtain all "complementary or alternative assistance needed by clients." Id. at 636 (Principle 7(a)).

Psychologists who violate the ethical standards of their profession are subject to disciplinary action by the APA, including expulsion from the Association. And, because these ethical principles are reflected in state licensure laws, psychologists also risk revocation of their license which would preclude them from practicing their profession.^8/

The Ethical Principles, General Guidelines, and Specialty Guidelines appropriately regulate and monitor the work of clinical psychologists in hospital settings as elsewhere. The drastic sanctions psychologists can suffer for violating the profession's code of ethics and the licensure laws provide significant protections to patients and other consumers of psychological services. Although the appellate court never had a record on which to base its concerns about psychological practice, it usurped the legislature's power to determine the scope of a psychologist's license and unnecessarily restricted the practice of psychology in hospital facilities.

Given their intensive training, rigorous licensure laws, and the ethical and other professional standards in psychology, it is not surprising that psychologists are generally recognized as independent professionals providing diagnosis and treatment on a coequal footing with psychiatry. This recognition is expressed not only in public attitudes but also in federal and state statutory and regulatory law and in private sector practices.

Almost all relevant federal statutes require direct recognition of clinical psychologists as independent health care providers, i.e., as persons qualified to deliver services without supervision by a physician. A comprehensive, but by no means an exhaustive list, includes: Federal Employees Compensation Act, 5 U.S.C. § 8101(2) (1982); Offenders with Mental Disease or Defect Act, 18 U.S.C. §§ 4241-4244 (Supp. 1985); Vocational Rehabilitation Act, 29 U.S.C. § 723(a)(1) (1982): the Civilian Health and Medical Program of the Veterans Administration, 38 U.S.C. § 601 et seq. (1982); Veterans Health Care Expansion Act, 38 U.S.C. §§ 612A: 613(b) (1988); Health Maintenance Organization Act, 42 U.S.C. § 300e-1 (1988); Disaster Relief Act, 42 U.S.C. § 5183 (1982); and Medicaid, 42 U.S.C. § 1396 et seq. (1982).^9/

The most notable examples of federal statutes recognizing clinical psychologists as independent providers of mental health services are the Federal Employees Health Benefits Act (FEBHA), 5 U.S.C. § 8902(k) (Supp. 1986), and the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), 10 U.S.C. § 1071 et seg. (Supp. 1986). FEHBA establishes conditions and funding of group health plans for federal employees and their beneficiaries. There are currently about 20 plans, that cover about 10 million people. CHAMPUS protects almost 9 million people, including dependents of military personnel, retired military personnel, and dependents of deceased personnel. It covers both inpatient and outpatient services.^l0/

State law just as explicitly recognizes psychologists as independent providers of mental health services. Forty states, including California, embracing more than 90% of the United States population, have enacted laws establishing direct recognition of and reimbursement for psychological services. See Cal. Ins. Code § 10176. These statutes amend state insurance and related codes to require third party payors to cover the independent provision of services by licensed psychologists if those same services are also provided by physicians. These "freedom of choice" laws broaden the range of providers who can render the covered service, permitting patients direct access to qualified psychologists if that is the patient's choice.

In addition to freedom of choice legislation, California confers independent status for psychologists in several and diverse areas: Cal. Unemp. Ins. Code § 2708: Cal. Lab. Code § 3209.3: Cal. Penal Code § 1369: Cal. Penal Code § 1027; Cal. Penal Code § 1203h: Cal. Penal Code § 2962; Cal. Civ. Proc. Code '§ 2032; Cal. Welf. Inst. Code § 5361; Cal. Civ. Code § 232; Cal. Welf. & Inst. Code § 5008 et seq. ^11/

This is but a partial listing of federal and state laws that evidence legislative recognition of the qualifications of psychologists to provide independently, and regardless of setting, a broad diversity of mental health services to all kinds of patients, including those with severe mental and organic disorders. The plain import of these provisions is that psychologists are permitted to perform all diagnostic services so long as they do not use drugs, surgery, or electro-convulsive devices. Cal. Bus. & Prof. Code § 2904. The appellate court, in its cramped and insufficient analysis, failed to take these significant provisions into account. As a result, the court seriously misinterpreted the psychologist's licensure law and severely circumscribed, if not rendered nugatory, Cal. Health & Safety Code 1316.5, permitting psychologists to serve on medical staffs of health facilities, which explicitly includes hospitals. See Cal. Health & Safety Code § 1250. A major purpose of § 1316.5 was to expand, not contract, the practice of psychology by making it clear that the licensure law applied not only to outpatient settings in which psychologists traditionally worked autonomously, but to inpatient hospital settings as well.

A. Mental Disorders Are Not Neatly Separated Between Those With Organic Bases and Those Without.

The appellate court assumed that certain mental disorders are discernibly and unequivocally organic in origin. It also assumed that if a mental disorder were organic in origin it must be susceptible to medical treatment for which only physicians could devise plans. Only when an organic basis for a disorder was ruled out could clinical psychologists diagnose and treat their patients. Such a simple division of labor is unsophisticated and unsupportable.

The reality is, "We are not yet in a position to distinguish between syndromes due to anatomic and physiological processes and those due to overwhelming social and psychologic stress." Radomisli & Karasu, Medical and Nonmedical Models in Clinical Practice and Training, 31 Amer. J. Psychotherapy 116, 118 (1977).^12/ Even in schizophrenia and manic-depressive psychoses, which now appear to have organic and genetic bases, "[b]y the time a patient suffering from one of these disorders is first examined, he shows complex maladjustment due to somatic etiology in interaction with psychosocial etiology in a series of layers . . . ." Radomisli and Karasu at 118. As a result, the simple fact that a disorder may have an organic etiology does not mean that a physical intervention is the treatment of choice. ^13/

Diagnosis is a complicated and intricate skill requiring expert data collection, the identification of alternate hypotheses, the interpretation of the data collected in light of these hypotheses, and the eventual formulation of a diagnosis that best fits the data.^14/ The "difficulty in precisely demarcating physical from psychic disorders," Shelp & Perl, Missed Physical Diagnosis: Conceptual and Moral Comments on the Psychiatrist-Patient Relationship, 2 Psychiatric Med. 389, 398 (1985), requires sophisticated interaction and collaboration among all relevant health care professionals, not an unenlightened dismissal of an essential body of qualified practitioners, like clinical psychologists, from the process. ^15/

To best serve the patient, a diagnostic model must include the entire spectrum of etiological factors, including genetic, biochemical, developmental, anatomic, physiologic, intrapsychic, interpersonal, familial and societal:

The crippling flaw of the [biomedical] model is that it does not include the patient and his attributes as a . . . human being. . . . [M]any of the data necessary for hypothesis development and testing are gathered within the framework of an ongoing human relationship and appear in behavioral and psychological forms . . . .

Engel, The Clinical Application of the Biopsychosocial Model, 137 Amer. J. Psychiatry, 535, 536 (1980).

The lower court's failure to consider these complexities creates two significant risks to patient care. First, failing to include clinical psychologists as independent, coequal collaborators in the diagnostic process for all patients will cause many patients who present with what appear to be purely medical problems to be misdiagnosed and mistreated because physicians often overlook the presence of mental disorders in such patients.^l6/ Second, as amici now discuss, physicians, even those specially trained in the diagnosis of neurological problems such as brain injury, a clearly organic disorder, do not have the diagnostic tools to detect the presence and location of brain injury or to assess the emotional and behavioral components of such injury.

B. Frequently, Physicians are Incapable of Detecting the Presence of Organic Brain Injury and Fail to Recognize the Emotional and Behavioral Components of Such Injury.

There are some mental disorders that clearly have a predominant organic element. These are injuries to the brain or other components of the central nervous system. Such injuries may occur through illness, such as encephalitis, Alzheimer's disease, and acquired immune deficiency syndrome (AIDS) or trauma, such as a head injury.

The consequences of injuries to the brain are manifestly different in different individuals.^l7/ However, like other disorders with an organic component, it is widely recognized that "mental sequelae outstrip the physical as a cause of difficulty . . . ." Lishman, supra note 17, at 304. These "mental sequelae" range from irreversible coma through mental retardation and mental illness, to only brief periods of mental confusion. There may be somatic complaints, cognitive or intellectual deficits, and psychological disorders, e.g. depression, anxiety, aggression, emotional withdrawal, neuroses, and schizophrenia.^l8/

A fact of which the appellate court was ignorant is that the symptoms just described, as well as the presence of the organic injury itself, cannot routinely be detected through a mental status examination by a psychiatrist, neurological examination by a physician, or by typical medical techniques such as X-rays or CAT scans. ^19/ For example, an X-ray of the skull shows nothing about the soft tissues of the brain; it can only reveal bone fractures which are infrequent in head injuries that result in the most serious and diffuse brain damage. Brain contusions that can be detected by a CAT scan also decrease over time, and usually disappear completely after six weeks.^20/ Additionally, one of the most significant studies in scrutinizing the value of computerized tomography showed that almost one-half of the patients who were in deep coma had normal CAT scans. ^21/ The greatest limitations of X-rays and CAT scans are that they can provide no information on changes in patients intellect, emotions, or behavior. Finally, a neurological examination is extremely limited in its capacity to detect organic dysfunction, especially of the higher-order brain processes like those that underlie problem-solving, personality, and social behavior:

the restricted limits of regular neurological symptoms is a result of some very important facts: lesions of the highest . . . zones of the cortex . . . do not result, as a rule, in any elementary sensory or motor deficits and remain inaccessible for classical neurological examination. . .[T]hat is why one has to establish new complex methods that could be used to study dysfunctional disorders evoked by their injuries. It is thus necessary to apply methods of neuropsychology for local diagnosis of lesions of these complex cortical zones.

Luria, Neuropsychological Studies in the USSR: Part I, 70Proc. Nat'l. Acad. Sciences 959 (1973) (first emphasis in original: second emphasis added).

In sum, the appellate court's ruling creates substantial dangers to patients whose emotional, behavioral, and organic problems are likely to be overlooked and whose treatment plans are likely to be inadequate. Not only is a psychologist's diagnostic expertise helpful, it is essential to the assessment and treatment of all disorders.

The appellate court's assumption that the diagnosis of organic disorders, including brain injury, was not within the scope of a clinical psychologist's license is clearly erroneous and contrary to established fact. Many health care professionals are involved in the assessment, diagnosis, and treatment of brain damage including specialists in neurosurgery, psychiatry, rehabilitation medicine, and speech pathology. Psychologists, however, bring unique perspective to the assessment of central nervous system disorders generally and head injuries particularly.^22/

Because many organic dysfunctions occur in patients who have normal radiological findings and normal neurological examinations, see Point II(B), any genuine attempt to assess organicity must include a battery of scientifically validated tests to assess the presence, site, and extent of injury. This is one of the roles for which clinical psychologists are specially trained, particularly when a differential diagnosis between organic and purely psychological problems is required. "Some questions can be answered only by psychological testing . . . . [P]sychological testing proves far more efficacious and is often crucial in the diagnosis and treatment for organic conditions, the differential diagnosis between schizophrenic and organicity, ruling out of an underlying psychosis, differentiating between a strictly psychosomatic and a hysterical . . . disorder, or, if there is a need, for assessment of cognitive functioning." Lothstein, Role of the Clinical Psychiatrist and Psychologist in-Primary Care Medicine, 4 Primary Care 343, 351 (1977). ^23/

Psychological tests, which measure a variety of factors including intelligence and other aspects of cognitive functioning, personality, psychopathology, and visual and motor functioning, permit an accurate and objective assessment of the patient's functional and neurological abilities that are critical to a proper evaluation of brain injury. ^24/In addition, psychological testing may be helpful in demonstrating deficits that are not evident clinically.

Psychological testing has been specifically recommended for two disorders which are clearly organic in origin, Alzheimer's Disease and AIDS. ^25/ Psychological tests are useful in the early detection of these diseases, especially where clinical symptoms may mask the onset of these diseases. ^26/ They can measure deficits associated with the diseases such as memory loss, language deficits, and other cognitive impairments as well emotional concomitants such as anxiety and depression. They help evaluate the course of the disease once it has been diagnosed. And, tests help form and implement treatment plans to aid the patient cope with or compensate for these delineated deficits.

The two most popular groups of objective tests used by psychologists in evaluating brain injury are the Halstead Reitan Battery aid the Luria-Nebraska Neuropsychological Battery.^27/ Psychiatric diagnoses that are based on the usual nonstandard evaluations and fairly general criteria have not been found to be very reliable, even when made by experienced physicians.^28/ In contrast, the clinical use of the Halstead-Reitan and Luria-Nebraska have been supported by studies showing that they reliably discriminate between patients with documented cerebral lesions or other brain damage from patients who have neither demonstrable cerebral pathology nor serious emotional disturbance.^29/

In sum, evaluation by clinical psychologists who are trained to assess cognitive, emotional, and behavioral functioning and whose diagnostic tools include standardized, reliable, and valid measures of organic damage, is critical to an accurate determination of mental and neurological disorder. The court below assumed distinctions between organic and nonorganic diseases are readily made and that it could assign diagnostic roles which would guide hospital practice. But such a fact-intensive issue cannot be decided merely through judicial notice. See generally Annot., Judicial Notice- -Diseases, 72 A.L.R.2d 554 (collecting California cases).

Psychologists for decades have served in a variety of settings and roles as independent providers of mental health services and as consultants to primary care physicians. Without incident and, in fact, with general approbation, over 3000 psychologists are employed by the nation's medical schools, more than 700 work on the staffs of public general hospitals, about 2500 work in public psychiatric hospitals, about 900 in private psychiatric hospitals, and about 1600 in Veterans Administration hospitals across the country, providing diagnostic and treatment services, including to patients with mental disorders organic in origin.^30/

Psychologists contribute to patient care in two essential and discrete ways. First, psychologists, as independent and autonomous professionals, are responsible for the diagnosis, planning, and treatment of hospitalized patients with mental disorders. Second, psychologists make major contributions to the diagnosis and treatment of patients whose primary problems are physical but for whom psychological intervention is necessary.

Psychologists have long been involved in the assessment and treatment of patients hospitalized for mental disorders. These patients usually suffer from severe difficulties like schizophrenia and manic-depressive psychoses. In many instances, these disorders may be organic in origin. The appellate court ruled that only physicians, including psychiatrists, could admit, diagnose, and develop, and implement treatment plans for these patients. Opinion at 12. This conclusion simply does not comport with reality.

First, psychologists because of their unique training and vast experience, are the only mental health professionals competent to perform reliable and valid assessments, through comprehensive testing, of patients. ^31/ As amici have shown, psychological testing is often crucial in arriving at accurate diagnoses of all disorders, including those organic in origin. Second, clinical psychologists' knowledge of assessment and research methodology permit them to delineate the factors that powerfully influence the success or failure of treatment plans,^32/ a role for which psychiatrists have not been trained.^33/

Most importantly, the failure to allow psychologists as autonomous professionals to develop and implement treatment plans for patients with mental disorders can lead to overmedication with the serious risks of powerful and debilitating side effects that antipsychotic drugs can produce. See Brief of APA and CSPA as Amicus Curiae in Riese v. St. Mary's Hospital and Medical Center, No. S004002 (Cal. S. Ct., filed Aug. 17, 1988). A number of effective interventions are available that create substantial benefits for hospitalized patients, either in conjunction with or as an alternative to medication.

Hospitalization is a form of treatment itself, especially if the hospital setting is structured as a therapeutic community. This form of treatment, commonly known as "milieu therapy," has "been a significant part of inpatient treatment of schizophrenia since the 1950s . . . ." Bell & Ryan, Where Can Therapeutic Community Ideals be Realized? An Examination of Three Treatment Environments, 36 Hosp. & Comm. Psychiatry 1286, 1286 (1985,).^34/ It is "designed to teach appropriate interactional skills while discouraging inappropriate ones. It is also designed to provide motivation through positive and negative reinforcements and through the development of trusting, alliance-building relationships and staff." Dalton, Bolding, Woods, & Daruna, Short-Term Psychiatric Hospitalization of Children, 38 Hosp. & Comm., Psychiatry 973, 974 (1987).

"[A] recent series of studies have indicated that . . . [the] therapeutic power [of milieu therapy] can be equal to or even greater than that obtainable with drugs for some patients." Gunderson, supra note 34, at 327. Milieu treatment can also be used effectively in conjunction with drugs and is helpful in preparing schizophrenic patients and others for entering psychotherapy.^35/Because the very nature of milieu therapy requires greater decision making by patients and nonphysician staff, the traditional hierarchical and authoritarian model under which physicians are trained may not make them as amenable as psychologists to active and effective participation.^36/ Moreover, psychologists are uniquely trained and skilled in the development and implementation of effective milieu programs. Part of a psychologist's education includes work in the assessment of environments and the impact of groups, organizations, and systems on the individual.

Psychotherapy, for which clinical (among other) psychologists are trained, is also an effective option in the treatment of psychosis. For example, one well-known study examined the effects on inpatients hospitalized with schizophrenia of psychotherapy alone, medication alone, and psychotherapy and medications combined. For the first 20 months of treatment, patients who received psychotherapy only performed solely by psychologists averaged 88 days of inpatient stays; patients who received medications alone averaged 146 days of inpatient stays, and those who received combined psychotherapy and medication both administered by psychiatrists averaged 60 days of inpatient stays. For the next 20 months, the results were even more dramatic strongly favoring psychotherapy alone. From months 21-40, patients treated by psychologists doing psychotherapy alone averaged only 7.2 days in the hospital, patients treated by medication alone averaged 99.8 days, and patients given medication and psychotherapy by psychiatrists averaged 93.5 days.^37/

Finally, behavioral techniques developed by psychologists are highly effective means to deinstitutionalize chronic mental patients who have been hospitalized for lengthy periods. The most widely recognized such technique is a token economy program where patients receive tokens, like poker chips, when they engage in socially appropriate and rational behavior. "These programs safely teach community living skills and self-control over aberrant behavior through step-by-step learning with rewards for successful behavior." Levy, Improving Patient Care: Psychologist Parity with Psychiatrists in Hospitals, 35 Clinical Psychologist 24 (1981).^38/

Behavioral medicine or medical psychology is a recognized specialty in health care. It is concerned with the integration of behavioral and biomedical science and the cooperation between psychologists, scientists and physicians in diagnosing and treating physical illnesses.^39/ The field stresses collaborative multidisciplinary efforts among independent professionals, not artificially-created dichotomies between professions.

A salutary benefit derived from these efforts is the consensus "that any number of physical diseases have psychological concomitants or specific syndromes associated with them." Pardes, Neuroscience and Psychiatry: Marriage or Coexistence? 143 Amer. J. Psychiatry 1205, 1210 (1986).^40/ Further, even though a patient may suffer from a physical illness, the treatment of choice need not be physical at all. There are a number of diseases for which the primary intervention is psychological. And, for some physical diseases, there is no medical treatment available at all; in those cases psychological intervention is the sole choice. The effective use of psychologists in treating these diseases is demonstrable in a number of ways.

For example, heart disease, which accounts for half of all deaths in America each day,^41/ is preventable through psychological intervention. The risk of fatal or incapacitating heart disease can be minimized by reducing psychological stress, ^42/and by treating the concomitants of stress such as smoking, drinking, and poor eating habits. In this regard, psychologists have developed a variety of techniques, such as relaxation training, biofeedback, and behavior modification, that help patients reduce stress, smoking, and obesity and increase physical fitness through exercise.^43/ These techniques are not within the expertise of the general physician or psychiatric provider.

Next to heart disease and stroke, cancer kills most Americans. But, only one to two percent of cancers can be attributed directly to heredity with the rest attributable to smoking, environmental causes, diet, and alcohol consumption. ^44/ As with heart attacks, psychological intervention can treat excessive smoking, reduce alcohol intake, exposure to environmental carcinogens, and excessive stress that add to cancer risks.^45/

Psychological interventions have been shown repeatedly to speed recovery in both adults and children who undergo major surgery.^46/Group and individual therapy has shown promise for adjustment to mastectomy, leg amputation, and pelvic surgery.^47/ Psychological techniques involving self-monitoring are more effective than simple instructions and reminders in increasing fluid intake to restore electrolyte balance in burn victims and a standard psychological procedure for phobia reduction has been adapted to patients' fears of hemodialysis. ^48/

In addition to providing adjunct but necessary treatment in the prevention and amelioration of physical disorders, psychological treatment regimens have been developed and tested for a wide variety of physical disorders for which traditional medical treatments are ineffective. Psychologists have treated disorders of the neurological, respiratory, cardiovascular, genital, urinary, gastrointestinal, and dermatological systems.^49/

For example, seizures for which no neurological basis could be found have been eliminated or reduced by psychologists using learning techniques and epileptic seizures are arrestible using biofeedback.^50/ Debilitating migraine headaches are effectively treated by biofeedback and relaxation training. ^51/ Patients with chronic lung obstructions benefit from psychologically designed programs that produce more regular and intense exercise than other programs and are as cost-effective as medical treatments. ^52/ Although drugs are the treatment of choice for most cases of hypertension, psychological treatments for this cardiovascular problem have succeeded where drug treatments have failed. ^53/Finally, eight sessions of a psychological treatment program significantly and substantially produced fewer days of ulcer pain while reducing the amount of ulcer medication consumed.^54/

Most importantly, psychologists have contributed to the understanding and amelioration of physical diseases with little understood etiology and no known cure, as with Alzheimer's Disease and AIDS.^55/ Traditional drugs exacerbate the symptoms of Alzheimer's Disease.^56/ Psychologists have been helpful in providing cognitive retraining of patients with the disease and with developing innovative programs for counseling those who care for these patients.^57/ And while there is no cure for AIDS, "supportive intervention may be quite effective in helping the patient establish structure and set comfortable limits on daily activities, decrease hypochondriacal preoccupations, [and] reduce self-destructive acts. Psychotherapy can also help provide a surrogate relationship to diminish the profound alienation that often accompanies this disease." Perry' & Jacobsen, supra note 25, at 141.^58/

In sum, psychologists serve as effective independent professionals in hospital settings.^59/ It would be wasteful of scarce health care resources if clinical psychologists were not permitted to participate, as independent professionals, in the diagnosis and treatment of all patients.

A. Physicians, Particularly Psychiatrists, have Historically Made and Continue to Make Attempts to Preclude Psychologists from Participating as Members of Hospital Staffs.

Recognition of psychologists as independent health care providers and coequal members of hospital staffs has met with strenuous opposition from physicians in general and psychiatrists in particular. Psychiatrists view their "territory" as being "assailed from every side" by psychologists and view economic competition as threatening. Province of Psychiatry Questioned, Said to Need Defining, Clinical Psychiatry News, Nov. 1977, at 1.^60/

The oft-stated policy of the American Psychiatric Association is to do everything possible to keep psychologists and other professionals in a subordinate role under the direction of physicians/psychiatrists. ^61/ One example of this effort is the attempted "remedicalization" of psychiatry, i.e., an attempt to define all treatment of mental health problems as "medical treatments." ^62/ An official of the American Psychiatric Association has described the effects of the process as follows:

Medical care becomes equated with health care. This brings psychiatry back into the mainstream of the medical establishment, because the equation of medical care with health care is the basis on which organized medicine claims the right to-exert control over the total health-care industry.

Despite these attempts, psychologists, as amici have shown, are now recognized as fully qualified to assess and diagnose mental disorders, including those organic in origin, and have been acknowledged repeatedly to be competitors of psychiatrists and independent providers of mental health services in federal, state, and private third-party reimbursement plans. ^64/

Several bureaus of the Federal Trade Commission have commented on the procompetitive advantages of hospital privileges for health care professionals. They asserted that the resulting "competition should benefit consumers by offering choices and treatment alternatives to patients." They further stated that these treatment alternatives could be offered "at prices that might otherwise be unavailable" and testified that the increased availability of qualified providers could "have a beneficial effect on health care generally."^66/

The arbitrary compartmentalization of services advocated by physicians and blithely accepted by the court below is at variance with the thinking of thoughtful observers and the data. When the American Psychiatric Association published its model civil commitment law excluding psychologists as an authorized professional able to certify the need for emergency psychiatric treatment and to participate in other legal proceedings involved in the civil commitment process,^67/ it was severely criticized by both lawyers and psychiatrists.^68/ The criticism was warranted because there are no data to support psychologists' exclusion, and there are, in fact, data to the contrary. The most recent study reviewed over 8000 mental health evaluations of patients seen in an emergency room over a 15 month period. The evaluations were conducted by nine doctoral level psychologists, three fully trained psychiatrists, and six psychiatric residents. There were no differences in diagnostic or referral patterns among the groups, including the diagnoses of organic disorders. The author concluded:

The exclusion of psychologists in the American Psychiatric Association's model commitment law was not supported by these findings . . . . Experienced psychologists appear as competent as psychiatrists and psychiatry residents, and possibly more competent than physicians, in the emergency "psychiatric" evaluation process. These results suggest that emergency room psychologists and psychiatrists should have equal rights and privileges in regard to the decision to hospitalize "psychiatric" patients.

Wood, Commitment Code Revision's Effect on Psychologists' and Psychiatrists' Decision to Hospitalize, 19 Prof. Psychology 58, 60 (1988).

To support their arguments against hospital privileges for psychologists, psychiatrists seek to promote the false impression that what they do is uniquely different from psychologists and that only they can provide total care for patients. Unfortunately that view is reinforced by the appellate court's opinion. But, like so many other aspects of that opinion, it is not supported by the data.

The most extensive study of mental health services provided by psychologists and psychiatrists was conducted using CHAMPUS data,^69/ the largest health plan in the United States. The data gleaned from this study are particularly relevant as almost one-quarter of CHAMPUS providers are in California. The author studied both outpatient and inpatient visits. With regard to outpatient visits, psychiatrists and other physicians "billed for procedures exclusive to them by license in only about 1 out of 200" cases.^70/ With regard to inpatient visits, "only about 3 percent of psychiatric visits for . . . care in mental disorders involved procedures that could be provided only by a licensed physician." Id. As significant is the fact that psychologists' fees for these visits were from $1.50 to $6.50 less per hour than psychiatrists. Id. at 80-81.

Why psychiatrists are so strongly opposing hospital privileges for psychologists may be reflected in earnings they derive from providing inpatient care. The CHAMPUS data show that for fiscal years 1980 and 1981, psychologists as a group earned about $504,000 from services provided to mentally ill inpatients. In contrast, psychiatrists earned over $11,000,000. Id. at 89.^71/

No patient admitted to the hospital, whether by a psychiatrist or psychologist, will fail to receive a medical examination. Both providers, as a result of their ethical principles, see text at 9-10, and California's regulatory scheme, will make sure to rule out any physical anomaly that might mask an emotional disorder by referral to and consultation with a qualified physician. See, e.g., Cal. Admin. Code tit. 22 §§ 70577(e)(1)(2); 70707(d); 70717(d); 71203(a)(3)(B-C); 71517(d): 77073.^72/

The appellate court's opinion and that of the moving parties is at variance with the Joint Commission on Accreditation of Healthcare Organizations (JCAHO),^73/ JCAHO's mission is to ensure that patients receive quality care and service in organized health care settings. Admittedly bowing to antitrust concerns,^74/ JCAHO amended its Accreditation Manual for Hospitals (1987) in 1984 so that the restriction of hospital privileges to physicians and dentists would be lifted. The Medical Staff Standards now state that the medical staff "includes fully licensed physicians and may include other licensed individuals permitted by law and by the hospital to provide patient services independently in the hospital." Id. at 109 (MS.1.1). Privileges no longer depend solely on degree but are granted on the bases of licensure, relevant training and experience, and current competence. Id. at 110 (MS.1.2.3.1.2.2).^75/

Like California's regulations, the JCAHO Accreditation Manual clearly contemplates that all patients admitted to hospitals have "a history taken and a comprehensive physical examination performed by a physician who has such privileges." Id. at 120 (MS.4.3.3). Physicians opposed to hospital privileges for psychologists, like the appellate court, overlook the interplay of all these safeguarding provisions in California law, federal statutes, accreditation standards, and ethical principles. They create the spurious spectre of inadequate medical care. Medical care is ensured.

Psychologists and psychiatrists (and other physicians) serve their patients best when they collaborate, not act in conflict. "The political and economic rivalry between psychology and psychiatry, along with internal identity conflicts, brings disruptive tension to interprofessional work relationships." Berg, Toward a Diagnostic Alliance Between Psychiatrist and Psychologist, 41 Amer. Psychologist 52, 52 (1986). Over a decade ago, a psychologist and psychiatrist writing together, expressing concern "about the lack of unity and amity between our professions," reminded readers that "[n]either discipline is so unusual that it should have exclusive control over the delivery of mental health care." Wallace & Rothstein, Toward a Reconciliation Between Psychiatry and Clinical Psychology, 28 Hosp. & Comm. Psychiatry 618, 618 (1977). Since then a number of collaborative efforts have been described in the mental health literature. ^76/

The appellate court, unaided by a factual record or precedent, and without analyzing the plethora of other state and federal statutes and regulations, single handedly converted the cooperative but independent relationship contemplated by § 1316.5 into a conclusive presumption that psychologists are incompetent to diagnose or develop treatment plans for patients who may be suffering from mental illnesses or diseases organic in origin. But the appellate court's decision has no rational basis, unreasonably discriminates against Psychologists, disserves the public interest, unduly interferes with patients' rights, and is in sharp conflict with current and accepted practice.

This Court has the opportunity to redress the inappropriate judicial activism engaged in by the court below and reinstitute a rule that fully comports with the intent of this State's legislature as reflected in Cal. Health & Safety Code § 1316.5 and Cal. Bus. & Prof. Code § 2900 et seg. That rule would hold that psychologists are fully able to practice as independent and autonomous health care professionals in hospital facilities in carrying out their roles as skilled diagnosticians and treaters of patients with psychological problems and emotional, mental and organic disorders and, that consistent with their ethical and legal responsibilities, they refer patients to physicians for appropriate physical examinations upon admission of their patient to the hospital.

For all the foregoing reasons, amici APA and CSPA respectfully urge this Court to reverse the decision below. Respectfully submitted