Yellow Light of Caution Regarding California Board of Psychology
Sunday, November 27, 2016
I stray from psychoanalysis tonight to discuss politics, local politics, politics of the administrative type. I write to share a concern that I have developed after more than two decades of work as an Expert Consultant for the State of California Board of Psychology (BOP). I hope the concern resolves, but meanwhile wanted to express the worry and thereby enter it into cyberspace.
To provide a context, I begin by educating readers about Expert Consultants’ work, describe my recent experiences, and conclude with my concerns. Expert Consultants primarily offer the BOP assessments of the standard of care practiced by psychologists. A subdivision of the California Department of Consumer Affairs, the BOP employs staff members who register psychological assistants, issue licenses, and enforce rules and regulations. They also process complaints submitted by patients, examinees, and other consumers. Because these staff members are not psychologists, they seek guidance from BOP Experts to determine whether complaints reveal an actual departure from the standard of care and, if so, whether those deviations represent simple or extreme departures.
Experts also conduct psychological evaluations or provide educational reviews for psychologists. The former evaluate psychologists’ competency to practice psychology with safety to the public; the latter consist of tutoring sessions instructing psychologists who have violated a BOP regulation in proper care. Evaluating psychologists’ professional work is arguably the most difficult of the three assignments. Expert consultants rely upon APA ethics codes, specialty practice guidelines, and relevant laws and regulations to determine what constitutes the standard of care for psychologists. Additional sources include recent presentations at professional conferences, peer-reviewed articles and newsletters published by the APA or the CPA. Simple departures from the standard of care consist of unusual or uncommon professional behaviors that deviate from typical practices but are relatively harmless. Extreme departures deviate more significantly and harmfully from common practice. In the realm of medicine, an extreme departure is considered “a scant want of care.”
The vast majority of the Expert consultations I have provided over the years came directly from by the BOP. Occasionally, I provided standard of care assessments or psychological evaluations for attorneys representing psychologists. Until June of 2016, this had never been a problem. In fact, several years ago I testified before the BOP on behalf of a psychologist seeking re-licensure. The professional’s license had been revoked due to unprofessional conduct; the licensee’s attorney used my psychological evaluation to buttress his argument that the psychologist was rehabilitated.
After all of my years of steady service as an Expert Consultant, referrals to me by the BOP abruptly dropped off in early June 2016. The cases had come in steadily before then, averaging one or two cases per month. The controversy began when a BOP enforcement analyst sent me an email on June 2, 2016, informing me her supervisor would be calling me. I figured the issue concerned a billing matter. No call came. Then, on Friday, June 17th, after beginning a psychological evaluation of a licensee, I advised the BOP staff member who referred him that I had completed the interview. She asked me to hold off finishing the evaluation until her supervisor contacted me.
I felt concerned. Again, no call came, so I reached out to the supervisor myself. When I finally spoke with her on Tuesday, June 21st, she informed me the BOP felt “concerned” regarding a standard of practice evaluation that I had conducted on behalf of a psychologist’s attorney. She had not read the report. She could not identify the problem. She learned of it from a conversation she had with the Deputy Attorney General (DAG) involved in the case. (When psychologists engage the BOP regarding complaints, they are represented by attorneys; in like manner, the California Attorney General’s Office represents the BOP). She also asked me to stop working on the pending psychological evaluation, and also requested I refuse another case referred directly to me by a Medical Board investigator. In one week then, I had lost two cases from the BOP.
As our discussion continued, the supervisor suggested that the annual, mandated BOP trainings for Experts constitute a form of expertise. I respectfully disagreed, noting how these trainings, however helpful, do not constitute experience. I taught one of those trainings some years ago. They provide knowledge of topics related to standard of care and safe practice. They offer Experts further information. However, they do not constitute practical experience. Furthermore, many methods exist for receiving training in evaluating the standard of care in psychology and/or in conducting forensic psychological evaluations.
As the conversation drew to a close, the supervisor advised me that the BOP may begin asking Expert Consultants to sign an agreement to work exclusively for the Board. In essence, Experts would consent to providing expertise solely for the BOP. As long as they remained BOP Experts, they would be precluded from performing forensic psychological evaluations, standard of care assessments, or any work for other parties. I explained to her the ethical problems involved in such an agreement. I told her what occurs when testifying or giving depositions in legal matters. For example, I am typically asked how many times I have offered expert opinions for complainants versus respondents, defendants versus plaintiffs, and so on. These inquiries seek evidence of bias. I explained the importance of objectivity in expert witness work. I described how experts, unlike attorneys, are not advocates. They offer their objective, unbiased, and broadly-experienced expertise. An expert’s opinion regarding standard of care or safety to practice should be consistent whether offered to the BOP, a psychologist’s attorney, or any other party.
Holding my worry and irritation in check, I told the supervisor that I feared the sudden cessation in referrals to me could harm my reputation. Worse, I wondered if it represented a restraint of trade or, potentially, witness tampering. It seemed the DAG disliked my report for the psychologist’s attorney. Perhaps it hurt his or her case? I asked if the change in my status meant I had been suspended as an Expert Consultant. She assured me I remained in good standing.
The following week, I emailed the Chair of the BOP, Stephen Phillips, PhD, JD, and the President of the CPA, Jorge Wong, PhD, expressing concern about the implications of such an exclusivity agreement for the future of our profession. I cited the Specialty Guidelines for the Practice of Forensic Psychology—a document offering guidance for psychologists performing forensic work, including Expert Consultants. I highlighted how these guidelines call for objectivity and freedom from outside influence. Section 1.01 reads: “Forensic practitioners strive for accuracy, honesty, and truthfulness in the science, teaching, and practice of forensic psychology and they strive to resist partisan pressures to provide services in any ways that might tend to be misleading or inaccurate.” (APA, 2013)
I suggested the proposed exclusivity agreement actually compromises “accuracy, honesty, and truthfulness.” I suggested the BOP’s behavior towards me since their “concern” developed constitutes “partisan pressures.” I asked Dr. Wong to respond; I asked Dr. Phillips to bring my concern to the BOP. I never heard back from Dr. Wong; Dr. Phillips could not reply because it would be a conflict of interest.
As I write this tonight, it has been almost six months since my steady stream of referrals from the BOP came to a stop. The BOP dropped its idea of creating an exclusive panel. Nonetheless, no further referrals have come my way. I have received several referrals from psychologist’s attorneys but, again, I hate to work only “one side.”
I hope this evolving situation enlightens if not alarms readers. I greatly value my role as BOP Expert Consultant, and my concern extends well beyond self-interest. Limiting evaluations of psychologists’ work to BOP Experts Consultants would likely result in a more contentious, my-side-versus-your-side legal environment. Similarly, even informally blocking referrals to Experts who have worked for psychologist’s attorneys similarly suggests a type of bias on the BOP’s part. This could prove a problem for the BOP and, by extension, for all licensed psychologists.
I suggest the BOP adopt a policy similar to child custody panels for the Courts or psychological evaluators for the Peace Officer Standards and Training (POST) commission. These agencies credential their Experts; they do not constrict their work. In the meantime, I await news as to whether the BOP will refer to me in the future, and offer this blog posting in the meantime as information for fellow forensic psychologists as well as all licensed psychologists in California.
With much appreciation for your readership,
American Psychological Association (2002). The Ethical Principles of Psychologists and Code of Conduct (with 2010 Amendments). Washington, DC: American Psychological Association.
American Psychological Association (2013). Specialty Guidelines for Forensic Psychology. Washington, DC: American Psychological Association.
Medical Board of California Enforcement Program (2013). Expert Reviewer Guidelines. Sacramento: State of California.
State of California (2016). California Board of Psychology Laws and Regulations. Charlottesville, VA: LexisNexis.
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