BILL ANALYSIS �
-----------------------------------------------------------------------
|Hearing Date:April 22, 2013 |Bill No:SB |
| |578 |
-----------------------------------------------------------------------
SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 578Author:Wyland
As Amended:April 1, 2013 Fiscal: No
SUBJECT: Marriage and family therapists: unprofessional conduct.
SUMMARY: Specifies that engaging in a dual relationship with a
patient that is likely to impair the professional judgment of the
licensee or lead to exploitation of the patient will constitute
unprofessional conduct.
Existing law:
1)Provides for the licensure and regulation of marriage and family
therapists (MFT) by the Board of Behavioral Science (BBS).
(Business and Professions Code (BPC) � 4990.18; 4980.35)
2)Makes the violation of the Licensed Marriage and Family Therapist
Act a misdemeanor. (BPC � 125)
3)Authorizes the BBS to deny, suspend or revoke the license or
registration of a licensee or registrant if the licensee is guilty
of unprofessional conduct. (BPC �� 4982; 4990.38; 4990.40)
4)Specifies the following acts are unprofessional conduct: (BPC �
4982; California Code of Regulations Title 16 � 1845)
a) The conviction of a crime substantially related to the
qualifications, functions or duties of a licensee or registrant.
b) Securing a license or registration by fraud, deceit or
misrepresentation.
c) Dangerous or self-injurious use of controlled substance,
dangerous drugs or alcoholic beverages.
d) Gross negligence or incompetence.
SB 578
Page 2
e) Misrepresentation of education, professional qualifications or
affiliations.
f) Impersonation or allowing another person to use one's license
or registration.
g) Aiding or abetting or employing any unlicensed or unregistered
person to do work approved only for a licensee or registrant.
h) Intentionally or recklessly causing physical or emotional harm
to a client.
i) Dishonest, corrupt or fraudulent act.
j) Engaging in sexual relations with a client or former client
within 2 years after terminating therapy, soliciting sexual
relations with a client, sexual abuse or misconduct with a
client.
aa)Holding oneself out to perform professional services beyond
one's scope.
bb)Failure to maintain confidentiality.
cc)Failing to disclose fees to be charged;
dd)Paying, accepting or soliciting referrals for clients.
ee)False, fraudulent or misleading advertising.
ff)Reproduction of any psychological test or assessment device in
ways that might invalidate the test or device.
gg)Unprofessional conduct while engaging in supervision of a
registered intern or associate clinical social worker.
hh)Performing or holding oneself out as being able to perform or
permitting a trainee or registered intern to perform services
outside of one's scope of competence.
ii)Violating any statute or regulation related to gaining
experience.
jj)Improper record keeping.
aaa) Non-compliance with child abuse reporting requirements.
bbb)Non-compliance with elder and dependent adult abuse reporting
requirements.
ccc) Engaging in any conduct that attempts to subvert any licensing
exam.
This bill:
1) Provides that unprofessional conduct includes engaging in a dual
relationship with a patient that is likely to impair the marriage
and family therapist's professional judgment or lead to
exploitation of the patient.
2) Defines "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
SB 578
Page 3
therapeutic relationship.
FISCAL EFFECT: Unknown. This bill has been keyed "non-fiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. This bill is sponsored by the California Association of
Marriage and Family Therapists (CAMFT). According to the Author, SB
578 defines the kind of dual relationships that would constitute
unprofessional conduct and provides the BBS with another, more
direct, section of law to enforce. The Author believes if licensees
are to be disciplined for engaging in an improper dual relationship,
there should be a definition of the kind of conduct that is
prohibited. They note, "The language used in the bill represents a
summary of the long-standing and well-accepted definition of an
unethical dual relationship as defined in the ethical standards of
the profession."
2.Background. Various mental health associations have an enforceable
code of ethics. Within the code of ethics are various standards and
principles that are intended to guide the practice of mental health
treatment. Among these, are guidelines for engaging in dual or
multiple relationships. Below are excerpts from two mental health
organizations' code of ethics relating to the practice of marriage
and family therapy:
a) American Association of Marriage and Family Therapists 2012
Code of Ethics: Definition of Multiple Relationships. Marriage
and family therapists are aware of their influential positions
with respect to clients, and they avoid exploiting the trust and
dependency of such persons. Therapists, therefore, make every
effort to avoid conditions and multiple relationships with
clients that could impair professional judgment or increase the
risk of exploitation. Such relationships include, but are not
limited to, business or close personal relationships with a
client or the client's immediate family. When the risk of
impairment or exploitation exists due to conditions or multiple
roles, therapists document the appropriate precautions taken.
b) California Association of Marriage and Family Therapists 2011
Code of Ethics: Definition of Dual Relationships . Marriage and
family therapists are aware of their influential position with
respect to patients, and they avoid exploiting the trust and
dependency of such persons. Marriage and family therapists
therefore avoid dual relationships with patients that are
SB 578
Page 4
reasonably likely to impair professional judgment or lead to
exploitation. A dual relationship occurs when a therapist and
his/her patient engage in a separate and distinct relationship
either simultaneously with the therapeutic relationship, or
during a reasonable period of time following the termination of
the therapeutic relationship. Not all dual relationships are
unethical, and some dual relationships cannot be avoided. When a
concurrent or subsequent dual relationship occurs, marriage and
family therapists take appropriate professional precautions to
ensure that judgment is not impaired and that no exploitation
occurs.
Definition of Unethical Dual Relationships . Other acts that
would result in unethical dual relationships include, but are not
limited to, borrowing money from a patient, hiring a patient,
engaging in a business venture with a patient, or engaging in a
close personal relationship with a patient.
3.California Board of Psychology. Unlike the licensing groups
regulated by the BBS, the Board of Psychology includes in its
practice act the American Psychological Association's (APA)
definition of dual relationships which is located in the APA Code of
Ethics:
(BPC � 2936)
a) A psychologist refrains from entering into a multiple
relationship if the multiple relationship could reasonably be
expected to impair the psychologist's objectivity, competence, or
effectiveness in performing his or her functions as a
psychologist, or otherwise risks exploitation or harm to the
person with whom the professional relationship exists. Multiple
relationships that would not reasonably be expected to cause
impairment or risk exploitation or harm are not unethical.
4.BBS Disciplinary Standards. Currently, the BBS has the authority to
bring disciplinary action against a licensee for violation of its
practice act. This includes committing unprofessional conduct. The
BBS indicated that a licensee who engages in an improper dual
relationship is subject to disciplinary action under BPC � 4982(d)
gross negligence or incompetence and/or BPC � 4982 (1) intentionally
or recklessly causing physical/emotional harm to the client. If the
dual relationship involved sexual conduct, the BBS has authority to
discipline per BPC � 4982 (k) sexual relations with a client. The
BBS staff also indicated, that with the exception of one recent case
involving an MFT, the current statutory authority to take
disciplinary action against a licensee has been sufficient.
SB 578
Page 5
5.Impetus for SB 578. According to information gleaned from the BBS
and the Sponsor, a recent disciplinary case is being used to justify
the need for this law. During this case, the licensee allegedly
engaged in an inappropriate dual relationship. However, the
presiding Administrative Law Judge dismissed the case because the
BBS's subject matter expert testified, based on the CAMFT 2002 code
of ethics, that he believed "all dual relationships are unethical"
and could not think of any dual relationship that did not harm a
client. The Administrative Law Judge stated that this testimony
contradicted professional standards and dismissed the case as a
result.
6.Other States. A number of other states include provisions about
dual relationships in their practice acts.
a) Arizona: Chapter 33 Title 32-325(12): "'Unprofessional
conduct' includes the following: (y) Engaging in a dual
relationship with a client that could impair the licensee's
objectivity or professional judgment or create a risk of harm to
the client. For the purposes of this subdivision, "dual
relationship" means a licensee simultaneously engages in both a
professional and nonprofessional relationship with a client that
is avoidable and not incidental."
b) Vermont: Chapter 61, Title 26 � 3210: "The following
conduct?by a licensed social worker constitutes unprofessional
conduct..: (9) engaging in dual or multiple relationships with a
client or former client in which there is a risk of exploitation
or potential harm to the client; (10) failing to take steps to
protect a client and to set clear, appropriate, and culturally
sensitive boundaries, in instances where dual or multiple
relationships are unavoidable.."
c) Kansas: Board of Behavioral Sciences, Social Workers, �
102-2-7: "Any of the following acts by a licensee or an
applicant for a social work license shall constitute
unprofessional conduct: (tt) engaging in a dual relationship with
a client, supervisee, or student."
7.Arguments in Support. In their support letter, the Sponsor CAMFT
notes, "The BBS takes many disciplinary actions against therapists
for engaging in dual relationships yet there is no provision in BPC
� 492 related to unprofessional conduct that specifically addresses
or defines a dual relationship. The BBS usually charges licensees
who are alleged to have engaged in a dual relationship with gross
SB 578
Page 6
negligence or incompetence, both of which are serious allegations
that have the potential to damage a practitioner's reputation and
professional standing. Therefore, there is a need to better define
dual relationships and clarify when those relationships should be
considered unprofessional conduct. SB 578 would accomplish these
goals."
8.Policy Issue : Is There a Need to Better Define Dual Relationships
and Will This Provision Accomplish the Aforementioned Goals Stated
by the Author? It appears that this bill is in direct response to
one subject matter expert of the BBS who misinterpreted the dual
relationship definition that is promulgated by professional
organizations such as CAMFT and AAMFT and taught to MFT students
during their graduate programs. Further, this subject matter expert
was referring to information interpreted from the 2002 CAMFT code of
ethics versus CAMFT's most recent code of ethics referenced earlier
in the analysis. Thus, will including the definition in statute
provide any real clarity, or will it unintentionally bolster the
subject matter expert's position? For example, the current
definition included in the bill can be subjectively misconstrued to
imply all dual relationships are unprofessional conduct when in fact
some dual relationships are unavoidable, appropriate and
permissible.
It is also important to note that the BBS has sufficient authority
to discipline licensees for violating the unprofessional conduct
provisions of their practice act. Also, the phrase "within a
reasonable period of time" is non-specific, open-ended, highly
subjective, and could potentially leave the MFT to wonder what
constitutes a reasonable amount of time to wait to engage in a dual
relationship with a past client.
9.Suggested Author's Amendments.
a) Based on national and state mental health associations
existing definitions of dual relationships, the following
language should be added to the bill. This language will provide
MFTs with greater leverage to determine how to proceed if a dual
relationship is unavoidable. In addition, it is recommended that
specific examples of unethical dual relationships, such as those
included in the CAMFT Code of Ethics, be included in the
California Code of Regulations for MFTs promulgated by the BBS.
Amendment: On page 6, line 3 after "relationship" and before
"nothing" in line 7, add the following:
SB 578
Page 7
"If a dual relationship occurs and cannot be avoided, a marriage
and family therapist shall take appropriate and culturally
sensitive professional precautions, including documentation of
the dual relationship, to ensure that his or her judgment is not
impaired and that the client is not exploited. A violation of
this subdivision shall not be subject to Section 4983."
b) Recommend removing the following in order to prevent confusion
for MFTs who would be left to interpret subjectively what a
permissible "reasonable period of time" to appropriately engage
in a dual relationship is, following the termination of a
therapeutic relationship:
Amendment: In page 6, line 1, after "or" delete the following:
"within a reasonable period of time"
SUPPORT AND OPPOSITION:
Support:
California Association of Marriage and Family Therapists (Sponsor)
Opposition:
None received as of April 16, 2013.
Consultant: Le Ondra Clark, Ph.D.