BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1172 (Lieu)
As Amended April 30, 2012
Hearing Date: May 8, 2012
Fiscal: No
Urgency: No
NR
SUBJECT
Sexual Orientation Change Efforts
DESCRIPTION
This bill would prohibit psychotherapists from performing sexual
orientation change efforts, as defined, in the absence of
informed consent of the patient, and provide that informed
consent would not be effective for patients less than 18 years
of age. This bill would require a specified statement to be
included on the informed consent form. Finally, this bill would
provide for a cause of action against psychotherapists by
patients, former patients, or certain other persons in specified
cases.
This bill would contain findings and declarations of the
Legislature regarding homosexuality and sexual orientation
change efforts.
BACKGROUND
Sexual orientation change efforts (SOCE) attempt to change the
sexual orientation of a person from homosexual or bisexual to
heterosexual. SOCE is sometimes referred to as reparative
therapy or conversion therapy, and is "based on the assumption
that homosexuality per se is a mental disorder." (American
Psychiatric Association, Position Statement: Therapies Focused
on Attempts to Change Sexual Orientation (Reparative or
Conversion Therapies), March 2000
accessed May 3, 2012.) The
American Academy of Pediatrics, the American Counseling
Association, the American Psychiatric Association, the American
Psychological Association, the National Association of School
Psychologists, and the National Association of Social Workers
have all taken the position that homosexuality is not a mental
disorder, and therefore there is no need for a "cure". (Just the
Facts Coalition, Just the Facts About Sexual Orientation and
Youth: A Primer for Principals, Educators, and School Personnel,
p. 6, (2008) < http://www.apa.
org/pi/lgbt/resources/just-the-facts.pdf> accessed 5/1/2012.)
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Despite lack of support from leading medical and mental health
associations, SOCE continues to be practiced by some licensed
therapists. SOCE techniques may include aversive treatments
such as electric shock or nausea inducing drugs administered
simultaneously with the presentation of homoerotic stimuli.
Practitioners may also try to alter a patient's sexuality with
visualization, social skills training, psychoanalytic therapy,
and spiritual interventions. Many SOCE patients report negative
social and emotional consequences such as anger, anxiety,
confusion, depression, guilt, hopelessness, deteriorated
relationships with family, loss of social support, sexual
dysfunction, and even suicide.
In 2009, the American Psychological Association adopted a
resolution that mental health professionals should avoid telling
clients that they can change their sexual orientation through
therapy or other treatments. (American Psychological Association
Task Force, Appropriate Theraputic Responses to Sexual
Orientation, 2009.) Judith M. Glassgold (PsyD), the chair of
the task force behind the resolution, claimed that "Ýc]ontrary
to claims of sexual orientation change advocates and
practitioners, there is insufficient evidence to support the use
of psychological interventions to change sexual orientation. ?
At most, certain studies suggested that some individuals learned
how to ignore or not act on their homosexual attractions." On
the issue of harm, Glassgold commented that, "psychologists
cannot predict the impact of these treatments and need to be
very cautious given that some qualitative research suggests the
potential for harm."
This bill is a comprehensive effort to protect individuals from
the potential harm that may result from SOCE. This bill would
prohibit psychotherapists from performing SOCE on any patient
under 18 years of age, and on adult patients absent informed
consent. This bill would create standards for informed consent,
and provide a private right of action for violations of the
provisions of this bill.
CHANGES TO EXISTING LAW
Existing law provides that the practice of psychology is subject
to regulation and control by the state. It is in the public
interest to protect the public from the unauthorized and
unqualified practice of psychology and from unprofessional
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conduct by persons licensed to practice psychology. (Bus. &
Prof. Code Secs. 2900 and 2903.)
Existing law defines the practice of psychology as rendering for
a fee to individuals, groups, organizations, or the public any
psychological service involving the application of psychological
principles, methods, and procedures of understanding,
predicting, and influencing behavior, such as the principles
pertaining to learning, perception, motivation, emotions, and
interpersonal relationships; and the methods and procedures of
interviewing, counseling, psychotherapy, behavior modification,
and hypnosis; and of constructing, administering, and
interpreting tests of mental abilities, aptitudes, interests,
attitudes, personality characteristics, emotions, and
motivations. (Bus. & Prof. Code Sec. 2903.)
Existing law provides that marriage and family therapy is a
service performed with
individuals, couples, or groups wherein interpersonal
relationships are examined for the purpose of achieving more
adequate, satisfying, and productive marriage and family
adjustments. No person may engage in the practice of marriage
and family therapy unless he or she holds a valid license as a
marriage and family therapist. (Bus. & Prof. Code Secs. 4980 and
4980.02.)
Existing law provides that notwithstanding any provision of law
to the contrary, a minor who is 12 years of age or older may
consent to mental health treatment or counseling services if, in
the opinion of the attending professional person, the minor is
mature enough to participate intelligently in the mental health
treatment or counseling services. (Health & Saf. Code Sec.
124260(b).)
This bill would define "informed consent" as consent that is
voluntarily provided in writing by a patient to a
psychotherapist with whom the patient has a therapeutic
relationship. The informed consent must explicitly manifest the
patient's agreement to sexual orientation change efforts and
include the following statement:
Having a lesbian, gay, or bisexual sexual orientation is
not a mental disorder. Sexual orientation change efforts
have not been shown to be safe or effective and can, in
fact, be harmful. The risks include, but are not limited
to, depression, anxiety, self-destructive behavior, and
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suicide.
The American Psychological Association convened a Task
Force on Appropriate Therapeutic Responses to Sexual
Orientation and it concluded:
"Efforts to change sexual orientation are unlikely to be
successful and involve some risk of harm, contrary to the
claims of sexual orientation change efforts practitioners
and advocates."
The American Academy of Pediatrics states:
"Therapy directed at specifically changing sexual
orientation is contraindicated, since it can provoke guilt
and anxiety while having little or no potential for
achieving changes in orientation."
The American Medical Association's Council on Scientific
Affairs prepared a report in which it stated:
"Aversion therapy (a behavioral or medical intervention
which pairs unwanted behavior, in this case, homosexual
behavior, with unpleasant sensations or aversive
consequences) is no longer recommended for gay men and
lesbians. Through psychotherapy, gay men and lesbians can
become comfortable with their sexual orientation and
understand the societal response to it."
The National Association of Social Workers states:
"Social stigmatization of lesbian, gay and bisexual people
is widespread and is a primary motivating factor in leading
some people to seek sexual orientation changes. Sexual
orientation conversion therapies assume that homosexual
orientation is both pathological and freely chosen. No data
demonstrates that reparative or conversion therapies are
effective, and, in fact, they may be harmful.
This bill would provide that no psychotherapist shall engage in
sexual orientation change efforts without first obtaining the
patient's informed consent.
This bill would prohibit a patient less than 18 years of age
from undergoing sexual orientation change efforts, regardless of
the willingness of a patient's parent, guardian, conservator, or
other person to authorize such efforts.
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This bill would provide that right to refuse sexual orientation
change efforts is not waived by giving informed consent and that
consent may be withdrawn at any time.
This bill would provide that any act of duress or coercion by
any person or facility shall invalidate the patient's consent to
sexual orientation change efforts.
This bill would define "sexual orientation change efforts" as
psychotherapy aimed at altering the sexual or romantic desires,
attractions, or conduct of a person toward people of the same
sex so that the desire, attraction, or conduct is eliminated or
reduced or might instead be directed toward people of a
different sex.
This bill would create a private right of action that may be
brought against a psychotherapist for violations of the informed
consent requirement or for use of therapeutic deceptions, as
defined, and authorize recovery of actual damages or $5000,
whichever is greater, in addition to costs and reasonable
attorney's fees.
This bill would provide findings and declarations of the
Legislature including that an individual's sexual orientation,
whether homosexual, bisexual, or heterosexual, is not a disease,
and that sexual orientation change efforts can pose critical
health risks, as described.
This bill would provide statements of psychological,
psychiatric, medical, and other associations' regarding their
disproval of therapy aimed at changing sexual orientation or
therapy based on the assumption that homosexuality is a mental
disorder.
This bill would state that California has a compelling interest
in protecting the lives and health of lesbian, gay, and bisexual
people.
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COMMENT
1.Stated need for the bill
The author writes:
California lacks any protections for lesbian, gay, bisexual
or transgender individuals who are seeking mental-health
advice and guidance. By and large, many mental health
providers assist LGBT Californians in a healthy and safe
manner on a variety of issues. These therapeutic practices
aid many individuals and these practices are not causing
dangerous harm and are not the focus of SB 1172.
The focus of SB 1172 is to limit deceptive "therapies" that
are harmful to minors by mental-health providers. Sexual
orientation change therapies, like reparative therapy,
conversion therapy or reorientation therapy are the types of
sham therapies that California law does not protect against
for minors. SB 1172 seeks to provide protections for LGBT
youth by preventing these types of therapies that are
potentially dangerous as well as making adults aware of the
potential harms associated with sexual orientation change
therapies.
In support of this bill, Equality California writes:
Sexual orientation change efforts pose critical health risks
to lesbian, gay, and bisexual people, including depression,
shame, decreased self-esteem, social withdrawal, substance
abuse, risky behavior and suicidality. Recognizing that there
is no evidence that any type of psychotherapy can change a
person's sexual orientation, and that sexual orientation
change efforts may cause serious and lasting harms, the
American Psychiatric Association, the American psychological
Association, the American Counseling Association, the
National Association of Social Workers, and the American
Academy of Pediatrics uniformly oppose efforts to change the
sexual orientation of any individual.
2.Stakeholders are working out agreements on key provisions of
the bill
It should be noted that stakeholders have been working
diligently with the author of this bill. Every letter of
opposition concerning this bill, has taken an "oppose unless
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amended" position, and is supportive of the intent of the bill.
The stakeholder involvement indicates a high level of commitment
to the general intent of the bill that minors should be
protected from the potentially harmful effects of SOCE.
However, agreement over specifics of the bill regarding informed
consent and key definitions have yet to be reached.
This bill would require a therapist to provide a patient with a
form to sign that contains information regarding homosexuality,
the likelihood of achieving desired results under SOCE, and the
potential harmful effects. The form would also include
statements from leading medical and mental health organizations
concerning their disproval of SOCE methods. Information of this
nature is necessary for a patient to give informed consent to
any treatment. The concern raised by this bill is that by
providing this information on a consent form that the patient
must read and sign, this language may shield the practitioner of
SOCE from liability.
Further demonstrating this concern, the American Association of
Marriage and Family Therapy (AAMFT) expressed that "Ýa]ccording
to the AAMFT Code of Ethics, marriage and family therapists are
prohibited from practicing any therapy that does not benefit the
client. This bill requires both therapist and client to agree
that there is no likely benefit, and significant potential risk,
should the client undergo SOCE. The bill could be construed to
authorize a therapist to practice outside the Code of Ethics."
Concern has also been expressed over the definitions of SOCE
provided in this bill, and whether the definition would function
as an endorsement of the practice. The bill provides that:
"Sexual orientation change efforts" means psychotherapy aimed
at altering the sexual or romantic desires, attractions, or
conduct of a person toward people of the same sex so that the
desire, attraction, or conduct is eliminated or reduced or
might instead be directed toward people of a different sex.
It does not include psychotherapy aimed at altering sexual
desires, attractions, or conduct toward minors or relatives
or regarding sexual activity with another person without that
person's consent.
The bill also suggests that psychotherapy is the treatment of a
pathological condition, but states that homosexuality is not a
pathological condition. The author is aware of this potential
internal inconsistency and is working with stakeholders on
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addressing issues raised by the bill.
The author and stakeholders have expressed a commitment to
resolving these issues as this bill moves through the
legislative process.
3.This bill does not conflict with a minor's right to consent to
mental health therapy
This bill would prohibit a minor from consenting to SOCE, which
at first glance, appears to be in conflict with prior
legislation. In 2009, the Legislature passed SB 543 (Leno, Ch.
503, Stats. 2010) which authorized a minor who is 12 years of
age or older to consent to mental health treatment or counseling
services if, in the opinion of the attending professional
person, the minor is mature enough to participate intelligently
in the mental health treatment or counseling services.
Concerning the need for that bill, the author asserted that
"parental consent for mental health services can create a
barrier, especially in prevention and early intervention
programs where the youth may not be experiencing serious
physical or mental harm. ? ÝT]his barrier is especially harmful
to certain populations of youth including: lesbian, gay,
bisexual, and transgender (LGBT) youth, youth from abusive or
neglectful homes, youth from immigrant families, homeless youth,
and youth whose cultural backgrounds do not condone mental
health services."
The provisions authorizing a minor to consent to mental health
services enacted under SB 543 were preceded by a number of
exceptions to the general rule that minors must have parental
consent when receiving medical treatment or counseling. For
example, a minor may consent to medical care for the prevention
or treatment of a pregnancy (Fam. Code Sec. 6925); treatment of
communicable diseases (Fam. Code Sec. 6926); medical care
relating to rape or sexual assault (Fam. Code Secs. 6927-6928);
and medical care and counseling relating to the treatment of a
drug or alcohol related problem (Fam. Code Sec. 6929). The
converse of these exceptions, which supports the same public
policy, is demonstrated by the fact that there are controversial
or dangerous mental health treatments that children may not
consent to, such as electroconvulsive therapy and psychosurgery.
(Welf. & Inst. Code Secs. 5326.6 and 5326.7)
SB 543 aimed to ensure the mental well-being of minors by
allowing them to seek therapy before reaching a point of crisis.
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This bill seeks to protect minors from the potential, harmful
effects associated with SOCE, which may lead to serious mental
or emotional problems. In fact, in their letter regarding this
bill, the American Association for Marriage and Family Therapy
(AAMFT) listed a number of suggestions to improve this bill,
including that "suicide" should be included among the risks
outlined in the informed consent statement given to potential
patients.
Simply because a practice has not been prohibited by a licensing
board, it does not necessarily mean the practice is safe or
acceptable for minors. Further, there is precedent in the law
which makes exceptions to general rules regarding minors and
their ability to consent to medical treatment when there is a
compelling public policy rationale. Here, because the
objectives of SOCE are not supported by evidence, and there are
indications that the practice may result in harm, creating an
exception to the general rule that minors can consent to mental
health treatment, is warranted. Not allowing minors to consent
to SOCE is consistent with current law and does not affect their
ability to consent to the counseling and support intended under
SB 543.
4.Private right of action
This bill would provide that a cause of action may be brought
against a psychotherapist by a patient, former patient, or their
representative if SOCE were conducted without first obtaining
informed consent or by means of therapeutic deception, or if the
sexual orientation change efforts were conducted on a patient
who was under 18 years of age. The person bringing the cause of
action may recover actual damages, or statutory damages in the
amount of $5,000, whichever is greater, costs, and reasonable
attorney's fees.
Private rights of action may attempt to make a victim whole, or
may serve as a deterrent to proscribed behavior. Remedies
typically try to address the specific injury of the plaintiff,
but where this is not possible, money damages are often the only
adequate compensation for a victim's suffering. This bill would
authorize an award of actual damages, which are damages that
have occurred as a result of another's wrongdoing and can be
precisely measured. Loss of income because of an injury,
medical expenses, and costs of repairing damaged property are
examples of actual damages.
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Under this bill, a private right of action would be available if
SOCE was administered absent informed consent. The SOCE need
not result in harm for the plaintiff to have a valid claim, but
harm would probably have to be present to claim actual damages,
which may be difficult to calculate. Absent actual costs
incurred by a patient, it is difficult to place a number on
emotional or mental suffering. Accordingly, the statutory award
of $5,000 may serve to compensate the victim.
More importantly, the threat of paying a $5,000 or greater award
(if actual damages are greater than $5,000), plus costs and
attorney's fees to a plaintiff, may deter individual
practitioners from engaging in SOCE without legitimate informed
consent. Given the risks associated with SOCE, and the lack of
evidence that it achieves the desired results, great care should
be taken to ensure actual informed consent from patients.
Support : California Communities United Institute; Coming Out
Into Light; three individuals
Opposition : American Association for Marriage and Family
Therapy (unless amended); California Association for Licensed
Professional Clinical Counselors (unless amended); California
Association of Marriage and Family Therapists (unless amended);
California Psychiatric Association (unless amended); California
Psychological Association (unless amended); Pacific Justice
Institute; one individual
HISTORY
Source : Equality California; Mental Health America of Northern
California; National Center for Lesbian Rights
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote : Committee on Senate Business, Professions and
Economic Development (Ayes 5, Noes 3)
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