BILL ANALYSIS
AB 1730
Page 1
Date of Hearing: March 23, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1730 (Emmerson) - As Amended: March 17, 2010
PROPOSED CONSENT
SUBJECT : PERSONAL RIGHTS: MONETARY LIABILITY: MARRIAGE AND
FAMILY THERAPIST PEER REVIEW
KEY ISSUE : SHOULD THE LAW AFFORDING QUALIFIED IMMUNITY TO
MEMBERS OF PEER REVIEW COMMITTEES IN VARIOUS PROFESSIONAL FIELDS
BE REVISED TO CLARIFY THAT THE IMMUNITY EXTENDS TO MEMBERS OF
PEER REVIEW COMMITTEES IN THE FIELDS OF PSYCHOLOGY AND MARRIAGE
AND FAMILY THERAPY, FOR ACTS UNDERTAKEN OR PERFORMED IN
REVIEWING THE QUALITY OF PROFESSIONAL SERVICES RENDERED BY
PSYCHOLOGISTS AND MARRIAGE AND FAMILY THERAPISTS?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Since 1986, Civil Code Section 43.7 has provided immunity from
liability to members of a marriage and family therapy
"professional society" (as defined) generally, but not
specifically to members of a peer review committee in the field
whose purpose is to review the quality of services rendered by
marriage and family therapists. The reason for this apparent
oversight is unknown. Existing law already provides immunity to
peer review committees for physicians, dentists, dental
hygienists, podiatrists, chiropractors, optometrists, and
psychologists, among others. This bill, sponsored by the
California Association of Marriage and Family Therapists
(CAMFT), simply adds marriage and family therapists to the list
of health-related professions for which qualified immunity from
liability is provided to peer review committee members for any
act or proceeding undertaken or performed in reviewing the
quality of professional services rendered by marriage and family
therapists. The immunity is qualified, not absolute, because it
is only available if the member: (1) acts without malice; (2)
has made a reasonable effort to obtain the facts of the matter
as to which he or she acts; and (3) acts in reasonable belief
that the action he or she takes is warranted by the facts known
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to him or her after the reasonable effort to obtain the facts.
The sponsor has provided key information to the Committee about
current peer review practices within the marriage and family
therapy field that appears to support its contention that its
peer review committee appears to continue to responsibly carry
out its mission to identify and discipline ethical violators,
and therefore immunity from liability appears to be merited in
this case. The Consumer Attorneys are neutral on the bill and
there is no known opposition.
SUMMARY : Extends the qualified immunity granted under current
law to members of peer review committees in numerous
health-related professional fields for any act or proceeding
undertaken or performed in reviewing the quality of professional
services rendered by members of those professionals.
Specifically, this bill would provide that there shall be no
monetary liability on the part of, and no cause of action for
damages shall arise against, any member of a peer review
committee, composed chiefly of marriage and family therapists or
psychologists, whose purpose it is to review the quality of
services, including medical and mental health services, rendered
by marriage and family therapists or psychologists if the
committee member acts without malice, has made a reasonable
effort to obtain the facts of the matter as to which he or she
acts, and acts in reasonable belief that the action taken is
warranted by the facts known to him or her. In order to
increase logical clarity within Civil Code Section 43.7(b), this
bill also adds two references to "psychotherapy" to properly
identify the type of services rendered by psychologists who
already possess the qualified immunity.
EXISTING LAW :
1)Provides, generally, that there shall be no monetary liability
on the part of, and no cause of action for damages against,
any member of a mental health professional quality assurance
committee for actions taken pursuant to a review or evaluation
of mental health care or treatment. (Civil Code Section
43.7(a).)
2)Defines "peer review body" to include, among other things, a
marriage and family therapy professional society that: (1) has
as members at least 25 percent of the eligible licentiates in
the area in which it functions; (2) is not organized for
profit; and (3) has been determined to be tax-exempt pursuant
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to Section 23701 of the Revenue and Taxation Code. (Bus. &
Prof. Code Section 805(a)(1)(C).)
3)Defines "professional society" to include legal, medical,
psychological, dental, dental hygiene, dietetic, accounting,
optometric, acupuncture, podiatric, pharmaceutic,
chiropractic, physical therapist, veterinary, licensed
marriage and family therapy, licensed clinical social work,
and engineering organizations having as members at least 25
percent of the eligible persons or licentiates in the
geographic area served by the particular society. (Civil Code
Section 43.7(b).)
4)Provides, generally, that there shall be no monetary liability
on the part of, and no cause of action for damages against, a
professional or medical society, or member of any committee
thereof, for any action taken to maintain the professional
standards of the society. (Civil Code Section 43.7(b).)
5)Provides that nothing in this section affects the official
immunity of an officer or employee of a public corporation.
(Civil Code Section 43.7(c).)
6)Provides, generally, that there shall be no monetary liability
on the part of, and no cause of action for damages against,
any physician and surgeon, podiatrist, or chiropractor who is
a member of an insurance underwriting committee, for actions
performed for the purpose of evaluating physicians and
surgeons, podiatrists, or chiropractors for the writing of a
professional liability insurance contract. (Civil Code
Section 43.7(d).)
7)Requires the Board of Behavioral Sciences to create and
maintain a central file of the names of all persons who hold a
license, certificate, or similar authority from the Board in
order to provide an individual historical record for each
licensee with respect to any: (1) criminal conviction that
constitutes unprofessional conduct; (2) judgment or settlement
for damages in excess of $3,000 for any claim that injury or
death was proximately caused by the licensee's negligence,
error or omission in practice, or by rendering unauthorized
professional services; (3) public complaints; (4) disciplinary
information reported pursuant to B&P Section 805. (Bus. &
Prof. Code Section 800.)
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8)Requires the administrator of a peer review body to file an
"805 report" with the relevant state licensing agency within
15 days after the effective date of any of the following that
occur as a result of an action of the peer review body:
a) A licentiate's application for staff privileges or
membership is denied or rejected for a medical disciplinary
cause or reason.
b) A licentiate's membership, staff privileges, or
employment is terminated or revoked for a medical
disciplinary cause or reason.
c) Restrictions are imposed, or voluntarily accepted, on
staff privileges, membership, or employment for a
cumulative total of 30 days or more for any 12-month
period, for a medical disciplinary cause or reason.
(Bus. & Prof. Section 805(b).)
9)Contains findings of the Legislature stating that:
a) Peer review, fairly conducted, is essential to
preserving the highest standards of medical practice.
b) Peer review, fairly conducted, will aid the appropriate
state licensing boards in their responsibility to regulate
and discipline errant healing arts practitioners.
c) To protect the health and welfare of the people of
California, it is the policy of the State of California to
exclude, through the peer review mechanism as provided for
by California law, those healing arts practitioners who
provide substandard care or who engage in professional
misconduct, regardless of the effect of that exclusion on
competition. (Bus. & Prof. Section 809(a).)
COMMENTS : This bill, sponsored by the California Association of
Marriage and Family Therapists (CAMFT), simply adds marriage and
family therapists to the list of health-related professions for
which members of a peer review committee in that field are
granted qualified immunity for peer review-related activities
under Civil Code Section 43.7. This section grants qualified
immunity from liability for any act or proceeding undertaken or
performed in reviewing the quality of professional services
rendered by various practitioners of the healing arts. The
immunity is qualified, not absolute, because it is only
available if the member: (1) acts without malice; (2) has made a
reasonable effort to obtain the facts of the matter as to which
he or she acts; and (3) acts in reasonable belief that the
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action he or she takes is warranted by the facts known to him or
her after the reasonable effort to obtain the facts.
In order to increase logical clarity within Section 43.7(b),
this bill also adds two references to "psychotherapy" to
properly identify the type of services rendered by psychologists
who have already enjoyed qualified immunity under the statute
since 1982.
Legislative History of this Section: Such immunity has existed
for over 30 years when it was first extended to members of peer
review committees composed of physicians and surgeons. Since
then, the section has been amended several times to immunize
peer review committees composed of dentists, dental hygienists,
podiatrists, registered dieticians, chiropractors, optometrists,
and psychologists, among others. The most recent group of
professionals to be added to the section was acupuncturists, as
the result of SB 1279 (Chapter 815, Stats. of 1994), which
passed out of this Committee on a 9-1 vote.
The history of licensed marriage and family therapists with
respect to this section actually dates back to 1986, when
"licensed marriage, family, and child counseling" was included
in the list of professional societies in subdivision (b), but
was omitted from the list of professions afforded immunity from
liability for peer review committee activities. (Chapter 669,
Stats. of 1986.) The Committee's research of the legislative
history does not reveal the reason for this apparent
discrepancy, leaving open the question of whether the omission
was an oversight. As a result, the section provides immunity
from liability to members of a marriage and family therapy
professional society generally, but not for members of a peer
review committee whose purpose is to review the quality of
services rendered by marriage and family therapists.
Finally, SB 2026 (Chapter 1013, Stats. of 2002) substituted the
term "marriage and family therapy" for "marriage, family, and
child counseling" without broadening immunity from liability,
giving the statute the wording it retains to this day. Section
43.7 has not been amended since.
Rationale for Extending Immunity: The rationale for extending
immunity to marriage and family therapists appears to be
identical to that for extending it to members of other
health-related professions: namely, that it protects the public
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by ensuring candid evaluation and critique by members of peer
review committees who have voluntarily assumed responsibility
for evaluating the skills and job performance of fellow
practitioners, including identifying those who should be
reprimanded or reported for ethical or legal violations. The
benefits that arise from the grant of such immunity from
liability come at a certain social cost because the ability of a
patient to file a lawsuit against a practitioner for purported
malpractice is compromised.
In response to the Committee's request, the sponsor of the bill,
California Association of Marriage and Family Therapists, has
provided key information about current peer review practices
within the marriage and family therapy field that support its
contention that immunity from liability is appropriate in this
case because the benefits outweigh the social cost.
This information includes the following:
The CAMFT Ethics Committee (i.e. the peer review committee for
licensed marriage and family therapists) has been receiving
and acting on complaints for over 25 years, and is composed of
between 5 and 7 volunteer members who are all clinical members
of the Association.
The role of the Committee is to evaluate complaints against
the Ethical Standards and Code of Ethics that applied at the
time the service was provided, and to conduct an
investigation, following prescribed procedures, to determine
whether the Ethical Standards/Code of Ethics for the
profession have been violated.
In the event that the Committee concludes ethical violations
have occurred, it may negotiate settlements with the violator
to impose terms and conditions on future conduct. Following
the signing of such a settlement, the Committee monitors the
member's performance through written reports generally
submitted by supervisors, practice monitors, and therapists.
Pursuant to its duty under B&P Section 805, since 2001 the
Committee has filed approximately ten "Section 805" reports
against members who have committed certain violations. This
is important because the licensing board for MFTs, the Board
of Behavioral Sciences, cannot fulfill its duty to take
disciplinary action against licensees who have engaged in
unprofessional conduct without necessary reporting.
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Upon request of a member of the public, the Board of
Behavioral Sciences must disclose specified information about
disciplinary actions taken against a licensee, including MFTs.
The CAMFT peer review framework allows a MFT more than one
opportunity to present facts in his defense and appeal an
adverse decision before a permanent "mark" is left on his or
her professional record. Specifically:
o The MFT may submit a written response to the
allegations made against him or her during the
investigation by the Ethics Committee.
o If the Committee decides to refer the case to the
full CAMFT Board of Directors, then the MFT has the right
to a hearing before the Board and may be represented by
counsel.
o If the Board concludes a violation has occurred, the
MFT may not formally appeal the decision, but may request
the Board to reconsider its decision.
Consumer Attorneys Do Not Oppose the Proposed Immunity. The
Consumer Attorneys of California (CAOC) have long held the
position that specific professional groups should only be added
to the existing peer review immunity statutes under three
conditions: (1) the peer review committee is required to file a
"section 805" report to enable the licensing authority to
evaluate and track misconduct; (2) the peer review committee is
comprised of volunteer rather than paid reviewers; and (3) the
licensing entity appears to have a basic record of public
protection. CAOC writes that they are satisfied that the peer
review framework for marriage and family therapists appears to
meet these criteria, and thus have taken an official "Neutral"
position on this bill.
ARGUMENTS IN SUPPORT : According to the sponsor, this bill will
clear up an ambiguity in the existing immunity statute for
activities of peer review committees, and instead assure the
members of these committees reviewing ethical complaints against
marriage and family therapists that the specified immunity does
apply to the important and deserving work they engage in. They
write in support:
With respect to professional society peer review
committees that are addressed in Section 43.7(b)
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of the Civil Code, marriage and family therapists
are omitted from the listing of professions
afforded immunity from liability, even though this
section of law covers marriage and family therapy
professional societies. It is important for
members of marriage and family therapist ethics
committees to be assured that the specified
immunity from liability is applicable to them and
the actions they take. This change in law will
assure that there is no ambiguity with respect to
this protection for those who volunteer to perform
this important function that helps to protect the
public and assure that members adhere to
established codes of ethics.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Marriage and Family Therapists (CAMFT)
(sponsor)
California Hospital Association
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334