Amended in Senate April 1, 2013

Senate BillNo. 578


Introduced by Senator Wyland

February 22, 2013


An act to amend Section 4982 of the Business and Professions Code, relating to healing arts.

LEGISLATIVE COUNSEL’S DIGEST

SB 578, as amended, Wyland. Marriage and family therapists: unprofessional conduct.

Existing law, the Licensed Marriage and Family Therapist Act, provides for the licensure or registration and the regulation of marriage and family therapists by the Board of Behavioral Sciences, and makes a violation of the law a misdemeanor. Existing law authorizes the board to deny a license or registration or to suspend or revoke the license or registration of a licensee or registrant if he or she has been guilty of unprofessional conduct, which, among other things, includes engaging in sexual relations with a current or former client within a specified period of time.

This bill would specify that unprofessional conduct includes engaging in a dual relationshipbegin delete, as described,end delete with a patient that isbegin delete reasonablyend delete likely to impair his or her professional judgment or lead to exploitation of the patient. The bill describes a dual relationship as a separate and distinct relationship between a marriage and family therapist and his or her patient that occurs simultaneously with the therapeutic relationship or within a reasonable period of time following the termination of the therapeutic relationship.begin delete This bill would provide that when a dual relationship occurs and cannot be avoided, a marriage and family therapist shall take appropriate professional precautions to ensure that his or her judgment is not impaired and the patient is not exploited.end delete

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 4982 of the Business and Professions
2Code
is amended to read:

3

4982.  

The board may deny a license or registration or may
4suspend or revoke the license or registration of a licensee or
5registrant if he or she has been guilty of unprofessional conduct.
6Unprofessional conduct includes, but is not limited to, the
7following:

8(a) The conviction of a crime substantially related to the
9qualifications, functions, or duties of a licensee or registrant under
10this chapter. The record of conviction shall be conclusive evidence
11only of the fact that the conviction occurred. The board may inquire
12into the circumstances surrounding the commission of the crime
13in order to fix the degree of discipline or to determine if the
14conviction is substantially related to the qualifications, functions,
15or duties of a licensee or registrant under this chapter. A plea or
16verdict of guilty or a conviction following a plea of nolo contendere
17made to a charge substantially related to the qualifications,
18functions, or duties of a licensee or registrant under this chapter
19shall be deemed to be a conviction within the meaning of this
20section. The board may order any license or registration suspended
21or revoked, or may decline to issue a license or registration when
22the time for appeal has elapsed, or the judgment of conviction has
23been affirmed on appeal, or, when an order granting probation is
24made suspending the imposition of sentence, irrespective of a
25subsequent order under Section 1203.4 of the Penal Code allowing
26the person to withdraw a plea of guilty and enter a plea of not
27guilty, or setting aside the verdict of guilty, or dismissing the
28accusation, information, or indictment.

29(b) Securing a license or registration by fraud, deceit, or
30misrepresentation on any application for licensure or registration
31submitted to the board, whether engaged in by an applicant for a
32license or registration, or by a licensee in support of any application
33for licensure or registration.

P3    1(c) Administering to himself or herself any controlled substance
2or using of any of the dangerous drugs specified in Section 4022,
3or of any alcoholic beverage to the extent, or in a manner, as to be
4dangerous or injurious to the person applying for a registration or
5license or holding a registration or license under this chapter, or
6to any other person, or to the public, or, to the extent that the use
7impairs the ability of the person applying for or holding a
8registration or license to conduct with safety to the public the
9practice authorized by the registration or license. The board shall
10deny an application for a registration or license or revoke the
11license or registration of any person, other than one who is licensed
12as a physician and surgeon, who uses or offers to use drugs in the
13course of performing marriage and family therapy services.

14(d) Gross negligence or incompetence in the performance of
15marriage and family therapy.

16(e) Violating, attempting to violate, or conspiring to violate any
17of the provisions of this chapter or any regulation adopted by the
18board.

19(f) Misrepresentation as to the type or status of a license or
20registration held by the person, or otherwise misrepresenting or
21permitting misrepresentation of his or her education, professional
22qualifications, or professional affiliations to any person or entity.

23(g) Impersonation of another by any licensee, registrant, or
24applicant for a license or registration, or, in the case of a licensee,
25allowing any other person to use his or her license or registration.

26(h) Aiding or abetting, or employing, directly or indirectly, any
27unlicensed or unregistered person to engage in conduct for which
28a license or registration is required under this chapter.

29(i) Intentionally or recklessly causing physical or emotional
30harm to any client.

31(j) The commission of any dishonest, corrupt, or fraudulent act
32substantially related to the qualifications, functions, or duties of a
33licensee or registrant.

34(k) Engaging in sexual relations with a client, or a former client
35within two years following termination of therapy, soliciting sexual
36relations with a client, or committing an act of sexual abuse, or
37sexual misconduct with a client, or committing an act punishable
38as a sexually related crime, if that act or solicitation is substantially
39related to the qualifications, functions, or duties of a marriage and
40family therapist.

P4    1(l) Performing, or holding oneself out as being able to perform,
2or offering to perform, or permitting any trainee or registered intern
3under supervision to perform, any professional services beyond
4the scope of the license authorized by this chapter.

5(m) Failure to maintain confidentiality, except as otherwise
6required or permitted by law, of all information that has been
7received from a client in confidence during the course of treatment
8and all information about the client that is obtained from tests or
9other means.

10(n) Prior to the commencement of treatment, failing to disclose
11to the client or prospective client the fee to be charged for the
12professional services, or the basis upon which that fee will be
13 computed.

14(o) Paying, accepting, or soliciting any consideration,
15compensation, or remuneration, whether monetary or otherwise,
16for the referral of professional clients. All consideration,
17compensation, or remuneration shall be in relation to professional
18counseling services actually provided by the licensee. Nothing in
19this subdivision shall prevent collaboration among two or more
20licensees in a case or cases. However, no fee shall be charged for
21that collaboration, except when disclosure of the fee has been made
22in compliance with subdivision (n).

23(p) Advertising in a manner that is false, fraudulent, misleading,
24or deceptive, as defined in Section 651.

25(q) Reproduction or description in public, or in any publication
26subject to general public distribution, of any psychological test or
27other assessment device, the value of which depends in whole or
28in part on the naivete of the subject, in ways that might invalidate
29the test or device.

30(r) Any conduct in the supervision of any registered intern,
31associate clinical social worker, or trainee by any licensee that
32violates this chapter or any rules or regulations adopted by the
33board.

34(s) Performing or holding oneself out as being able to perform
35professional services beyond the scope of one’s competence, as
36established by one’s education, training, or experience. This
37subdivision shall not be construed to expand the scope of the
38license authorized by this chapter.

39(t) Permitting a trainee or registered intern under one’s
40supervision or control to perform, or permitting the trainee or
P5    1registered intern to hold himself or herself out as competent to
2perform, professional services beyond the trainee’s or registered
3intern’s level of education, training, or experience.

4(u) The violation of any statute or regulation governing the
5gaining and supervision of experience required by this chapter.

6(v) Failure to keep records consistent with sound clinical
7judgment, the standards of the profession, and the nature of the
8services being rendered.

9(w) Failure to comply with the child abuse reporting
10requirements of Section 11166 of the Penal Code.

11(x) Failure to comply with the elder and dependent adult abuse
12reporting requirements of Section 15630 of the Welfare and
13Institutions Code.

14(y) Willful violation of Chapter 1 (commencing with Section
15123100) of Part 1 of Division 106 of the Health and Safety Code.

16(z) Failure to comply with Section 2290.5.

17(aa) (1) Engaging in an act described in Section 261, 286, 288a,
18or 289 of the Penal Code with a minor or an act described in
19Section 288 or 288.5 of the Penal Code regardless of whether the
20act occurred prior to or after the time the registration or license
21was issued by the board. An act described in this subdivision
22occurring prior to the effective date of this subdivision shall
23constitute unprofessional conduct and shall subject the licensee to
24refusal, suspension, or revocation of a license under this section.

25(2) The Legislature hereby finds and declares that protection of
26the public, and in particular minors, from sexual misconduct by a
27licensee is a compelling governmental interest, and that the ability
28to suspend or revoke a license for sexual conduct with a minor
29occurring prior to the effective date of this section is equally
30important to protecting the public as is the ability to refuse a license
31for sexual conduct with a minor occurring prior to the effective
32date of this section.

33(ab) Engaging in any conduct that subverts or attempts to subvert
34any licensing examination or the administration of an examination
35as described in Section 123.

36(ac) Engaging in a dual relationship with a patient that is
37begin delete reasonablyend delete likely to impair his or her professional judgment or
38lead to exploitation of the patient. For purposes of this subdivision,
39a dual relationship occurs when a marriage and family therapist
40and his or her patient engage in a separate and distinct relationship
P6    1either simultaneously with the therapeutic relationship, or within
2a reasonable period of time following the termination of the
3therapeutic relationship.begin delete If a dual relationship occurs and cannot
4be avoided, a marriage and family therapist shall take appropriate
5professional precautions to ensure that his or her judgment is not
6impaired and that the patient is not exploited. A violation of this
7subdivision shall not be subject to Section 4983.end delete
begin insert Nothing in this
8subdivision shall be construed to alter or affect the prohibitions
9of subdivision (k).end insert



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