FOOTNOTES

CALIFORNIA ASSOCIATION OF PSYCHOLOGY PROVIDERS, et al.,
Plaintiffs/Respondents,

v.

PETER RANK, DIRECTOR, DEPARTMENT OF HEALTH SERVICES et al.,
Defendants.

CALIFORNIA HOSPITAL ASSOCIATION, et al.,
Moving Parties/Appellants

Read the Full-Text Amicus Brief

  1. The appellate court's opinion reinforces discarded "stereotypes from the 1950s" when "psychiatrists 'treated' the patients; psychologists administered tests to them; . . . nurses handed out the medications; and the attendants kept the patients company by playing cards." Blum & Redlich, Mental Health Practitioners: Old Stereotypes and New Realities, 37 Arch. Gen. Psychiatry 1247, 1247 (1980)
  2. See generally Edelstein & Brasted, Clinical Training in The Clinical Psychology Handbook 35 (M. Hersen, A. Kazdin & A. Bellack eds. 1983).
  3. See Committee on Accreditation, APA Accredited Predoctoral Internships for Doctoral Training in Psychology: 1987, 42 Amer. Psychologist 1094 (1987). See also Eggert, Laughlin, Hutzell, Stedman, Solway and Carrington, The Psychology Internship Marketplace Today, 18 Prof. Psychology 165 (1987).
  4. See, e.g., Barlow, Psychologists in the Emergency Room, 5 Prof. Psychology 251 (1974); Zimet & Weissberg, The Emergency Service: A Setting for Internship Training, 16 Psychotherapy: Theory, Research and Practice 334 (1979).
  5. Stigall, Licensing and Certification in The Professional Psychologist's Handbook 285 (B. Sales ed. 1983). These laws, which permit psychologists to practice independently in all settings, provide for certification or licensure. Certification laws limit the use of the title "psychologist." Licensure laws, like California's, both regulate use of the title and define the scope of those activities for which a license to practice is required.
  6. See Cal. Health & Safety Code § 1316.5, subd. (c).
  7. APA, Ethical Principles of Psychologists, 36 Amer. Psychologist 633 (1981). California reflects these principles in its licensure law and regulations. See Cal. Bus. & Prof. Code § 2960: Cal. Admin. Code tit. 16 § 1396
  8. APA has adopted two other documents psychologists are expected to observe to promote the best interests and welfare of clients. The General Guidelines for Providers of Psychological Services, 42 Amer. Psychologist 1 (1987), were "established by organized psychology as a means of self-regulation in the public interest," and cover any psychological service "at any time and in any setting." Id. The General Guidelines, although acknowledging that "psychologists pursue their activities as members of the independent, autonomous profession of psychology," Id. at 8 (Guideline 3.2), also reminds psychologists to "limit their practice . . . to their demonstrated areas of professional competence, Id. at 4 (Guideline 1.6), and "in the best interest of users, . . . to consult and collaborate with professional colleagues in the planning and delivery of services . . . ." Id. at 5 (Guidelines 2.2.6).

    Similarly, the Specialty Guidelines for the Delivery of Services by Clinical Psychologists, 36 Amer. Psychologist 640 (1981), instruct clinicians to act within the bounds of their competence and to consult, cooperate, and collaborate with their colleagues from other professions. Id. at 644, 646.
  9. Most of these statutes are described in Brief of Plaintiff-Respondents at 27-28.
  10. For a fuller description of these two programs as well as the other federal statutes listed, supra, see Dorken, Health Insurance and Third-Party Reimbursement in The Professional Psychologist's Handbook 249 (B. Sales ed.1983): DeLeon, VandenBos, & Kraut, Federal Legislation Recognizing Psychology, 39 Amer. Psychologist 933 (1984). See also Omnibus Budget Reconciliation Act of 1987, Pub. L. 100-203, adding payments for qualified psychological services under Medicare, 42 U.S.C. § 1395 et seg. (1988).
  11. Most of these statutes and supporting case law are described in Brief of Plaintiffs-Respondents at 20-25
  12. See Kandel, Psychotherapy and the Single Synapse: The Impact of Psychiatric Thought on Neurobiologic Research, 301 New Eng. J. Med. 1028 (1979) (classification of psychiatric illness into organic and functional diseases unwarranted).
  13. See, e.g., discussion in Point IV (A), infra, of psychotherapy for schizophrenia, a disorder now believed primarily organic in origin.
  14. See Elstein, Human Factors in Clinical Judgment in Clinical Judgment: A Critical Appraisal 17 (H. Engelhardt, S. Spicker & B. Towers, eds. 1979)
  15. See Holt, Diagnostic Testing: Present and Future Prospects, 144 J. Nerv. & Ment. Dis. 444, 456 (1967) (clinical psychologist "first of all contributes to the understanding of etiology. He weighs the relative contribution of organic and functional factors . . . and the degree of functional and organic impairment"); Berg, Toward a Diagnostic Alliance Between Psychiatrist and Psychologist, 41 Amer. Psychologist 52 (1986).
  16. Primary care physicians are either untrained, unable, or unwilling to recognize mental disorders in those patients seeking their services. Kessler, Cleary & Burke, Psychiatric Disorders in Primary Care, 42 Arch. Gen. Psychiatry 583, 584 (1985) ("primary care clinicians tend to underdiagnose and underreport psychiatric morbidity among their patients" and do less well than a psychometric scale); Thompson, Stoudemire, Mitchell & Grant, Underrecognition of Patients' Psychosocial Distress in a University Hospital Medical Clinic, 140 Amer. J. Psychiatry 158 (1983).

    These facts argue against artificial role dichotomies and for the elimination of "the question of 'psychological or organic' with the conflict this produces over who is going to treat the patient." Brodsky, Decision Makinq and Role Shifts as They Affect the Consultation Interface, 23 Arch. Gen. Psychiatry 559, 560 (1970).

  17. Barth, Macciocchi, Giordani, Rimel, Jane & Boll, Neuropsychological Sequelae of Minor Head Injury, 13 Neurosurgery 529 (1983) [hereinafter Barth et al]; Lishman, The Psychiatric Seguelae of Head Injury: A Review, 3 Psychological Med. 304 (1973) [hereinafter Lishman]; T.Boll, Assessment of Neuropsychological Disorders in Behavioral Assessment of Adult Disorders 8 (D. Barlow ed.1981).
  18. See Barth et al., supra note 17; Boll, Behavioral Sequelae of Head Injury in Head Injury (P. Cooper ed. 1982); Bond, Assessment of the Psychosocial Outcome of Severe Head Injury, Acta Neurochirurgica 57 (1976); Dikmen & Reitan, Emotional Sectuelae of Head In-jury, 2 Ann. Neurology 492 (1977); Levin, Grossman, Rose & Teasdale, Long-term Neuropsychological Outcome of Closed Head Injury, 50 J. Neurosurgery 412 (1979).
  19. See Barth et al, supra note 17.
  20. See Kishore, Radiographic Evaluation in Head Injury 43 (P. Cooper ed. 1982); French & Dublin, The Valueof Computerized Tomography in the Management of 1000 Consecutive Head Injuries, 7 Surgical Neurology 171 (1977)[hereinafter French & Dublin].
  21. French & Dublin, supra note 20: see Baker, Campbell, Houser & Assoc., Computer Assisted Tomography of the Head,49 Mayo Clinic Proc. 17 (1974) (only 10 of 27 head injured patients [37%] had abnormal CAT scan); Barth et al.,supra note 17.
  22. See generally C. Golden & P. Vicente, Foundations of Clinical Neuropsychology (1983); S. Filskov & T. Boll, Handbook of Clinical Neuropsychology (2d ed.. 1986): I. Grant & K. Adams, Neuropsychological Assessment of Neuropsychiatric Disorders (1986); H. Hecaen & M. Albert, Human Neuropsychology (1978): K. Heilman & E. Valenstein, Clinical Neuropsychology (2d ed. 1985); M. Lezak, Clinical Neurological Assessment (2d ed. 1983) A. Luria, Higher Cortical Functions in Man (2d ed.1980); R. Reitan & L. Davison, Clinical Neuropsychology: Current Status and Applications (1974): B. Rourke, D. Bakker, J. Fisk & J. Strang, Child Neuropsychology (1983); Sheer & Lubin, Survey of Training Programs in Clinical Neuropsychology, 36 J.Clin. Psychology 1035 (1980).
  23. "A clinical neuropsychologist has the appropriate tools to investigate organic impairment and generally does a better job than a . . . psychiatrist." Id.
  24. "The organization of the interview and observational material by the psychiatrist . . . is liable to be quite subjective . . . . [P]sychological testing . . . compares the person's performance with others, with standards, and yields a diagnostic statement concerning a particular individual." Rabin & Hayes, Concerning the Rationale of Diagnostic Testing 579, 590 in Clinical Diagnosis of Mental Disorders (B. Wolman ed. 1978).
  25. See, e.g., Khachaturian, Progress of Research on Alzheimer's Disease, 40 Amer. Psychologist 1251 (1985):Grant, Atkinson, Hesselink, Kennedy, Richman, Spector & McCutchan, Evidence for Early Central Nervous System Involvement in the Acquired Immunodeficiency Syndrome (AIDS) and Other Human Immunodeficiency Virus (HIV) Infections: Studies with Neuropsychologic Testing and Magnetic Resonance Imaging, 107 Ann. of Internal Med. 828, 832 (1987) [hereinafter Grant et al]; Perry & Jacobsen, Neuropsychiatric Manifestations of AIDS-Spectrum Disorders, 37 Hosp. & Comm. Psychiatry 135 (1986); Tross & Hirsch, Psychological Distress and Neuropsychological Complications of HIV Infection and AIDS, 43 Amer. Psychologist 929, 932 1988)
  26. "[C]ognitive deficits may not be apparent on detailed mental status examination but may be revealed by standardized intelligence or neuropsychological tests." Perry & Jacobsen, supra note 25, at 137.
  27. See, e.g., R. Reitan & L. Davison (eds.), Clinical Neuropsychology: Current Status and Applications (1974); Heaton, Baade & Johnson, Neuropsychological Test Results Associated with Psychiatric Disorders in Adults, 85 Psychological Bull. 141 (1978); Small, Small, Fjeld & Hayden, Organic Cognates of Acute Psychiatric Illness, 122 Amer. J. Psychiatry 790 (1966). These batteries have "led to their use in the diagnosis of neurological disorders, psychiatric disorders, and the localization of brain lesions. Moreover, these batteries have permitted the further development of rehabilitation programs for traumatically brain-injured individuals." Edelstein & Brasted, Clinical Training in Clinical Psychology Handbook 44 (M. Hersen, A. Kazdin & A. Bellack eds. 1983).
  28. See, e.g., Bazelon, A Jurist's View of Psychiatry, 3 J. Psychiatry & L. 175 (1975: Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif. L. Rev. 693 (1974); A. Stone, Law, Psychiatry, and Morality (1984).
  29. See, e.g., Grant et al., supra note 25, at 832 ("Neuropsychological testing is generally recognized to be a valid and sensitive indicator of brain disease"): Golden, Validity of the Halstead-Reitan Neuropsycholoaical Battery in a Mixed Psychiatric and Brain-Injured Population, 45 J. Consulting & Clinical Psychology 1043 (1977): Heaton, Baade & Johnson, Neuropsychological Tests Results Associated with Psyschiatric Disorders in Adults, 85 Psychological Bull. 141 (1987); Spreen & Benton, Comparative Studies of Some Psychological Tests for Cerebral Damage, 140 J. Nervous & Mental Disease 323 (1965) .
  30. See, e.g., Burstein & Loucks, The Psychologist as Health Care Clinician in Handbook of Clinical Health Psychology (T. Millon, C. Green & R. Meagher eds. 1982); Dunn, General Hospital Psychology, 27 Canadian Psychology 44 (1986); Clayson & Mensh, Psychologists in Medical Schools, 42 Amer. Psychologist 859 (1987); Stapp, Tucker & VandenBos, Census of Psychological Personnel: 1983, 43 Amer. Psychologist 1317 (1985); Thompson & Matarazzo, Psychology in UnitedStates Medical Schools, 39 Amer. Psychologist 988 (1984) .
  31. See, e.g., Lovitt, Current Practice of Psychological Assessment, 19 Prof. Psychology 516 (1988); Wade & Baker, Opinions and Use of Psychological Tests: A Survey of Clinical Psychologists, 32 Amer. Psychologist 874 (1977); Blum & Redlich, Mental Health Practitioners: Old Stereotypes and New Realities, 37 Arch. Gen. Psychiatry 1247(1980) .
  32. See, e.g., Clinical Psychologists as Health Professionals in Health Psychology--A Handbook (G. Stone, F. Cohen & N. Adler eds. 1979); Schraa & Jones, A Model Psychometrically Based Medical Psychology Program, 14 Prof. Psychology 78 (1983).
  33. See Kingsbury, Cognitive Differences BetweenClinical Psychologists and Psychiatrists, 42 Amer.Psychologist 152 (1987) (author is a physician and clinical psychologist); Pasnau, The Remedicalization of Psychiatry, 38 Hosp. & Comm. Psychiatry 145, 150 (1987) (complaining of "the relative dearth of physician investigators in psychiatry, which in any case has not had a long research tradition").
  34. "Milieu therapy refers to those forms of milieu treatment n which the milieu itself is recognized as an active therapeutic agency to promote and facilitate 'positive' changes in specified directions." Gunderson, Defining the Therapeutic Processes in Psychiatric milieus, 41 Psychiatry 327, 332 (1978). When properly implemented, the hospital milieu can safely contain patients and remove concerns over loss of self control, offer support, through interaction with others on the ward, create structure through a predictable organization of time, place, and person, foster involvement in the social environment, and affirm the patient's individuality. Id. at 328-332.
  35. See, e.g., Brown, A Short-term Hospital Program Preparing Borderline and Schizophrenic Patients for Intensive Psychotherapy, 44 Psychiatry 327 (1981); Lieberman & Strauss, Brief Psychiatric Hospitalization: What Are Its Effects? 143 Amer. J. Psychiatry 1557 (1986). "Milieu therapy is an essential part of every inpatient treatment program." Barton & Barton, 2 Mental Health Administration 552 (1983).
  36. See Gerten, Psychiatric Residents in a Milieu Participatory Democracy: A Resident's View, 135 Amer. J. Psychiatry 1392 (1978) (describing how psychiatrists felt threatened by milieu's demand that they give up traditional roles in interactions with patients).
  37. See B. Karon & G. VandenBos, Psychotherapy of Schizophrenia: The Treatment of Choice (1981); Karon & VandenBos, Cost/Benefit Analysis: Psychologists versus Psychiatrists for Schizophrenics, 7 Prof. Psychology 107 (1976) .
  38. In the most widely known study, 96.4% of chronic mental patients in a token economy program were released from the hospital into the community successfully although they received no medication. In contrast, only 46.4% of such patients whose sole treatment modality was medication were released into the community. G. Paul & R. Lentz, Psychosocial Treatment of Chronic Mental Patients (1977). Similarly, another empirical study found that 72% of patients who completed a token economy program and placed in the community were still living outside the hospital three years later. Fullerton, Cayner & McLaughlin-Reidel, Results of a Token Economy, 35 Arch. Gen. Psychiatry 1451 (1978).See also Liberman, Massel, Mosk & Wong, Social Skills Training for Chronic Mental Patients, 36 Hosp. & Comm. Psychiatry 396 (1985).
  39. See, e.g., Schwartz & Weiss, Behavioral Medicine Revisited: An Amended Definition, 1 J. Behav. Med. 249, 250 (1978) ("The interdisciplinary field concerned with the development and integration of behavioral and biomedical science, knowledge and techniques relevant to health diagnosis, treatment, and rehabilitation"): Gentry, Street, Masur & Asken, Training in Medical Psychology, 12 Prof. Psychology 224, 224 (1981) ("It refers to the cooperative efforts between behavioral scientists and medical practitioners in the diagnosis, treatment, and prevention of physical illness and reflects an acceptance of the importance of psychosocial factors in part or in whole to aspects of physical illness").
  40. Dr. Pardes is a recent president of the American Psychiatric Association. See Eisenberg & Jansen, Rehabilitation Psychologists in Medical Settings, 18 Prof. Psychology 475, 476 (1987) ("some behaviors exhibited by persons with disabilities, once considered strictly within the provinces of medicine and surgery because of their neurological etiologies, are amenable to modification by the methods of behavioral psychology"). See also Lipowski, Consultation-Liaison Psychiatry: An Overview, 131 Amer. J.Psychiatry 623, 625 (1974) ("medical training, with its emphasis on narrow specialization and purely biological aspects of disease, does not prepare physicians to recognize and deal with the influence of [psychosocial] factors on their patients.") [hereinafter Lipowski]; Wells, Golding, & Burnam, Psychiatric Disorder in a Sample of the General Population with and without Chronic Medical Conditions, 145 Amer. J. Psychiatry 976 (1988) (finding chronic medical conditions significantly associated with mental disorders).
  41. See DHHS, Health United States 1980 (1980) (DHHS Pub. No. PHS 81-1232) [hereinafter DHHS Report].
  42. See M. Friedman & R. Rosenman, Type A Behavior and Coronary Heart Disease (1974). "[P]ersonality types A and B contribute to cardiovascular disease." Pardes, Neuroscience and Psychiatry, 143 Amer. J. Psychiatry 1205, 1210 (1986): Mitchell & Thompson, Research Problems for Consultation Liaison Psychiatry in the DRG Era, 7 Gen. Hosp. Psychiatry 349, 349-350 (1985) ("[M]odest and inexpensive psychologic interactions tended to shorten the length of stay of patients with acute myocardial infarction or following surgery.")
  43. See, e.g., Manuso, Psychological Services and Health Enhancement in Linking Health and Mental Health (A. Broskowski, E. Marks & S. Budman eds. 1981); Craighead, Brownell & Horan, Behavioral Interventions for Weight Reduction and Smoking Cessation in Behavior Modification: Principles, Issues, and Applications (W. Craighead, A.Kazdin & M. Mahoney 2d ed. 1981); Lichtenstein & Rodrigues, Long Term Effects of Rapid Smoking Treatment for Dependent Cigarette Smokers, 2 Addictive Behav. 109 (1977); Yates, Improving the Cost-effectiveness of Obesity Programs, 2 Int'1. J. Obesity 249 (1978): Wysocki, wata & Riordan, Behavioral Management of Exercise, 12 J. Applied Behav. Analysis 55 (1979).
  44. See DHHS Report, supra note 41. "[C]ertain psychosocial factors are clearly connected with a long life span after the first diagnosis of cancer . . . ." Grossarth-Maticek, Social Psychotherapy and Course of Disease: First Experience with Cancer Patients, 33 Psychotherapeutic Psychosomatics 129, 134 (1980).
  45. See, e.g., Ashem & Donner, Covert Sensitization with Alcoholics: A Controlled Replication, 6 Behav. Res. & Therapy 7 (1968): Miller, Behavioral Treatment of Problem Drinkers, 46 J. Consulting & Clinical Psychology 74 (1978);Sklar & Anisman, Stress & Cancer, 89 Psychological Bull. 369 (1981) .
  46. See, e.g., Streltzer & Leigh, Psychological Preparation for Surgery: The Usefulness of a Preoperative Psychotherapeutic Interview, 37 Hawaii Med. J. 139 (1978). A combination of instructions and training in self-management techniques developed by psychologists for children about to undergo surgery significantly increased postoperative food intake, reduced anxiety, and reduced parents' ratings of their anxiety, and improved parents' self-perceived competence. Peterson & Shigetomi, The Use of Coping Techniques to Minimize Anxiety in Hospitalized Children, 12 Behav. Therapy 1 (1981).
  47. See, e.g., Kerstein, Group Rehabilitation for the Vascular Disease Amputee, 28 J. Amer. Geriatrics Soc'y. 40 (1980.): Lamont, De Petrillo, & Sargeant, Psychosexual Rehabilitation and Exenterative Surgery, 6 Gynecological Oncology 236 (1978): Witkin, Psychosexual Counseling of the Mastectomy Patient, 4 J. Sex & Marital Therapy 20 (1978).
  48. See, e.g., Sand, Fordyce & Fowler, Fluid Intake Behavior in Patients with Spinal-Cord Injury, 54 Arch. Physical Med. Rehabilitation 254 (1973): Kate, Single Session Recovery from a Hemodialysis Phobia, 5 J. Behav. Therapy and Experimental Psychiatry 205 (1974).
  49. See generally 1-3 Comprehensive Handbook of Behavioral Medicine (J. Ferguson & C. Taylor eds. 1980): Olbrisch, Psychotherapeutic Interventions in Physical Health: Effectiveness and Economic Efficiency, 32 Amer. Psychologist 761 (1977): Yates, How Psychology Can Improve Effectiveness and Reduce Costs of Health Services, 21 Psychotherapy 439 (1984).
  50. See Knapp & Peterson, Behavioral Management in Medical and Nursing Practice in Behavior Modification: Principles, Issues, and Applications (W. Craighead, A. Kazdin & M. Mahoney eds. 1976).
  51. See, e.g., Adams, Feuerstein & Fowler, Migraine Headache:Review of Parameters, Etiology, and Intervention, 87 Psychological Bull. 217 (1980); Harper, Wiens, & Hammerstad, Psychologist-Physician Partnership in a Medical Specialty Screening Clinic, 12 Prof. Psychology 341 (1981).
  52. See Atkins, Kaplan, & Timms, Behavioral Programs for Exercise Compliance in Chronic Obstructive Pulmonary Disease (November 1981) (unpublished manuscript available from San Diego State Univ.).
  53. See, e.g., Harrell, Psychologic:al Factors and Hypertension: A Status Report, 87 Psychological Bull. 482 (1980) .
  54. See Brooks & Richardson, Emotional Skills Training:A Treatment Program for Duodenal Ulcers, 11 Behav. Therapy 198 (1980).
  55. Crook & Miller, The Challenge of Alzheimer's Disease, 40 Amer. Psychologist 1245, 1240 (1985) ("psychologists . . . can contribute significantly to solving the complex problems associated with the etiology, course, and treatment of A[lzheimer's] D[isease]"); Heckler, The Fight Against Alzheimer's Disease, 40 Amer. Psychologist 1240, 1243 (1985) ("There is a growing need for psychologists . . . to develop model support programs, to train caregivers to utilize psychological interventions that have proven successful, and to counsel patients and their families").

    Patients with AIDS develop neurological and psychological symptoms that can be ameliorated even though there is no effective treatment for the underlying immune deficiency. But the anxiety, anger, depression, and suicidal ideation common in AIDS patients are treatable by psychotherapy and behavioral stress reduction. See Backer, Batchelor, Jones & May, Psychology and AIDS, 43 Amer. Psychologist 835 (1988); Faulstich, Psychiatric Aspects of AIDS, 144 Amer. J. Psychiatry 551 (1987) [hereinafter Faulstich]; Morin & Batchelor, Responding to the Psychological Crisis of AIDS, 91 Pub. Health Ref. 4 (1984); Morin, Charles & Malyon, The Psychological Impact of AIDS on Gay Men, 39 Amer. Psychologist 1288 (1984).

  56. Crook & Miller, supra note 55, at 1247
  57. Id.
  58. "Supportive psychotherapeutic approaches should involve issues such as . . possible social isolation, and acknowledgement of the illness and any associated fear and anger. Provision of stress-management and problem-solving procedures could also be of benefit to these patients. [B]ehavioral stress reduction techniques have also been advocated." Faulstich, supra note 55, at 554. See Kiecolt-Glaser & Glaser, Psychological Influences on Immunity, 43 Amer. Psychologist 892 (1988). In addition, the "contribution of behavioral scientists is central in the prevention of AIDS and HIV infection. Because there is no effective vaccine, psychosocial models may provide the only tools to stem the spread of AIDS." Baum & Nesselhof, Psychological Research and the Prevention, Etiology, and Treatment of AIDS, 43 Amer. Psychologist 900 (1988).
  59. In a major study of the effectiveness of psychological consultation, the vast majority of physicians judged that psychologists provided valuable services such as conducting mental status examinations (98.7%), arranging transfers to psychiatric wards (87.3%), assisting in ward management of medical patients (97.5%), and the evaluation of the interaction of psychological factors and organic illness (93.7%). Over 96% said that they wanted psychological consultation available in more medical and neurological settings, almost 90% agreed that psychological factors were important in understanding the etiology of medical and neurological diseases, and 100% stated that psychological factors were important in the treatment of these diseases. Schenkenburg, Peterson, Wood & DaBell, Psychological Consultation/Liaison in a Medical and Neurological Setting: Physicians' Appraisal, 12 Prof. Psychology 309, 313-314 (1981); See also Cabinet & Friedson, The Psychologist as Front-Line Mental Health Consultant in a General Hospital, 11 Prof. Psychology 939 (1980) (describing success of psychologist-consultant to wide variety of medical wards, explaining why psychologists have greater success than psychiatrists).
  60. It is noteworthy that appellate court review was not instigated by the original defendants, a state agency, but by a conglomerate of physician and hospital associations and practitioners whose major purpose in this litigation is to ensure that psychologists do not serve as independent professionals.
  61. See, e-g. Position Statement on Hospital Privileges for Psychologists, 128 Amer. J. Psychiatry 1456 (1971): Position Statement on Psychiatrists' Relationship with Non-Medical Mental Health Professionals, 130 Amer. J. Psychiatry 386 (1973); Principles of Medical Ethics with Annotations Espeically Applicable to Psychiatry, 130 Amer. J. Psychiatry 1058 (1973); Position Statement on Administration of Psychiatric Facilities, 133 Amer. J. Psychiatry 604 (1976); see also Guidelines of Psychiatrists in Consultative, Supervisory, or Collaborative Relationships with Nonmedical Therapists, 137 Amer. J. Psychiatry 1489 (1980).
  62. For example, the fourth edition of A Psychiatric Glossary (American Psychiatric Association 1974) introduced a new term, "medical psychotherapy." Advertising material emphasized this "new definition will be helpful to psychiatrists in relation to the third-party payment problem."
  63. Tension Rising Between Psychology, Psychiatry, Clinical Psychiatry News, Nov. 1977, at 1 (summarizing remarks of director of membership services of American Psychiatric Association). See Pasnau, The Remedicalization of Psychiatry, 38 Hosp. & Comm. Psychiatry 145, 151 (1987) ("Psychiatry's future as a medical specialty will . . . depend on how psychiatry's role is defined. If it is defined as a specialty that diagnoses, treats, and studies disturbance of mental processes caused by organic dysfunctions of the brain . . . or caused by psychosocial and environmental stressors, psychiatry's future as a medical specialty is assured").
  64. See, e.g., Blue Shield of Virginia v. McCready, 457 U.S. 465 (1982): Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476, 485 (4th Cir. 1980), cert. denied, 450 U.S. 960 (1981) ("The record demonstrates that psychologists and psychiatrists do compete: indeed it is susceptible to judicial notice."). See also Point I, infra.

    In fact, if the state, action doctrine did not arguably exempt such conduct in this case, the denial of hospital privileges to an entire class of qualified licensed psychologists by the concerted agreement of medical practitioners and hospital administrators would violate the antitrust laws. See, e.q., Bersoff, Hospital Privileges and the Antitrust Laws, 38 Amer. Psychologist 1238 (1983): Dolan & Ralston, Hospital Admitting Privileges and the Sherman Act, 18 Houston L. Rev. 707 (1981): Rich, Medical Staff Privileges and the Antitrust Laws, 2 Whittier L. Rev. 667 (1980); Note, Denial of Open Staff Privileges: An Antitrust Scrutiny, 26 St. Louis Univ. L. Rev. 752 (1982).
  65. Comments by the Bureau of Competition, Bureau of Consumer Protection, and Bureau of Economics of the FTC to the Board for Licensing Health Care Facilities of the State of Tennessee at 1 (Nov. 19,1982).
  66. Id. at 2. The FTC's assertions have proven correct. Mental health professionals, including the use of independent psychological consultants in medical settings, "actually results in lower total health care utilization and costs for treated persons . . . even when the cost of mental health care itself is included." Holder & Blose, Changes in Health Care Costs and UtilizationAssociated with Mental Health Treatment, 38 Hosp. & Comm. Psychiatry 1070, 1070 (1987) (study of 27,000 families showed inpatient days per month dropped from .63 days before treatment to .52 days in first year after treatment to .39 days in following year. Inpatient costs dropped from $167 to $133 to $106 in the same period.) See Mitchell & Sherman, Psychiatrist Behavior under Mental Health Insurance Regulation (1984) (research report submitted to Nat'1. Inst. Mental Health by Health Economics Research, Inc. on file with APA) (psychiatrists' fees less in freedom of choice states permitting patients to choose psychologists as well as psychiatrists as mental health providers: see Point I(B)). See also Mumford, Schlesinger & Glass, Effects of Psychological Intervention in Recovery from Surgery and Heart Attacks, 72 Amer. J. Pub. Health 141 (1982) (psychological intervention reduced hospitalization by two days below control group): Yates, How Psychology Can Improve Effectiveness and Reduce Costs of Health Services, 21 Psychotherapy 439 (1984).
  67. Stromberg & Stone, A Model State Law on Civil Commitment of the Mentally Ill, 20 Harv. J. Legis. 275(1983).
  68. See, e.g., Zusman, APA's fAmer. Psychiatric Ass'n.l Model Commitment Law and the Need for Better Mental Health Services, 36 Hosp. & Comm. Psychiatry 978, 980 (1985):

    One final aspect of the model law with which I strongly disagree is its authorization of nonpsychiatric physicians but not psychologists [to admit and otherwise participate in civil commitment proceedings]. Aside from the facts that the provision is against the trend, is likely to be ignored by states, and inflames our fellow mental health professionals with whom we should be working, the action is completely wrong. Does anyone really believe that the average orthopedist or cardiologist has a better background in mental disease, mental health law, and mental health services than the average doctoral-level clinical psychologist?

    Dr. Zusman is a professor of psychiatry who has practiced in New York, Florida, and California.

    Wexler, APA's Model Law: A Commitment Code by and for Psychiatrists, 36 Hosp. & Comm. Psychiatry 981, 981 (1985) ("the model law gives only physicians clinical authority to hospitalize, unwisely ignoring the critical role that can and should be paid in the commitment process by nonphysicians"). Prof. Wexler is professor of law at the University of Arizona.

  69. Dorken, The Expanding Role of Clinical Psychology in Mental Health Services: The CHAMPUS Experience in Professional Psychology in Transition 69 (H. Dorken & Assoc. eds. 1986).
  70. Id. at 77. "Thus, despite the considerable emphasis politically and interprofessionally on the essential and pivotal role of psychiatry and medicine in the treatment of mental disorders, . . . for over 99 percent of outpatient visits to psychiatrists, those services were within the scope of practice of some nonphysician providers . . . [T]he extent of overlap between . . . psychiatrists and psychologists in services actually rendered is the overwhelming fact . . . . Id.
  71. "In round numbers, this $10 million advantage to psychiatry from one program in one year is some explanation for the degree to which organized psychiatry is resisting the acquisition of hospital medical staff privileges by psychologists across the country." Id. at 88. In California, psychiatrists provided 89.3% of inpatient care: psychologists only 5.9%. Id. at 90-91. From a purely competitive viewpoint, it is clear why Cal. Health & Safety Code § 1316.5 was necessary.
  72. "[P]sychologists and psychiatrists function in much the same manner regarding the types of services they provide. Each refers to medical specialists for the physical problems of their patients and is responsible for the provision of psychotherapy." Tanney, Hospital Privileges for Psychologists, 38 Amer. Psychologist 1232, 1235 (1983).
  73. JCAHO, formerly the Joint commission on Accreditation of Hospitals (JCAH), is nonprofit corporation Sponsored by the American College of Physicians, American College of Surgeons, the American Dental Association, and the American Medical Association.
  74. See Widmann, Recent Changes in JCAH StandardsAffecting the Accreditation of Psychiatric Facilities, 35 Hosp. & Comm. Psychiatry 1211, 1213 (1984).
  75. See also 42 C.F.R. § 482.12(c)(2). These regulations under Medicare specifically provide that patients may be admitted to hospitals by "licensed practitioners permitted by the State to admit patients to a hospital."
  76. See, e.g., Berg, Toward a Diagnostic Alliance Between Psychiatrist and Psychologist, 41 Amer. Psychologist 52 (1986); Froese, Kamin & Levine, Teamwork: A Multidisciplinary Pediatric-Liaison Service, 7 Int'1. J. Psychiatry in Medicine 47 (1976-77); Mindell, The MD-Therapist Connection, Amer. Med. News, Feb. 12, 1988.
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