Transcript The Good, the Bad, and the Ugly: Ethical Decision Making

The Good, the Bad, and the Ugly:
Ethical Decision Making from A – Z
&
Protocol for Prosecution of Cases
Before the Regulatory Board
ABOUT THE BOARD
The Mississippi State Board of Examiners for Licensed
Professional Counselors exists to regulate the
profession of counseling, as well as of the title
“Licensed Professional Counselors”.
The Board is charged with numerous duties. An
important duty is to investigate complaints against
licensees, determine the merit of complaints, and
discipline Licensed Professional Counselors.
ABOUT THE BOARD
There are five Board members, one member from
each of the four congressional districts of Mississippi
and a member at large, appointed by the Governor
with the advice and consent of the State Senate.
Nominees to the Board must be Licensed
Professional Counselors in good standing and
qualified electors of the State of Mississippi. Three
board members are primarily engaged in private or
institutional practice in counseling and two board
members are primarily engaged in teaching, training
or research.
ABOUT THE BOARD
The Board conducts meetings pursuant to the
Mississippi Open Meetings Law, Section 25-41-3,
Miss. Code Ann. (1972) as amended. All meetings
of this “public body” must begin as an open meeting.
There are eleven reasons that a Board can legally
declare an executive (closed) session.
One primary reason this Board enters executive session
is, to deliberate after a hearing. This exception
would be announced as follows: “to investigate
proceedings by any public body regarding allegations
of misconduct or violation of law.”
COMPLAINTS, DISCIPLINARY
HEARINGS, SANCTIONS
The Board may, after notice and opportunity for a hearing,
restrict, suspend, revoke, or refuse to issue or renew a
license or may reprimand* the LPC for the following reasons,
including but not limited to:
A. Failure to meet all requirements for licensure;
B. Failure to pay required fees;
C. Practicing professional counseling in a grossly negligent or
incompetent manner;
D. Conviction of a felony;
COMPLAINTS, DISCIPLINARY
HEARINGS, SANCTIONS
E. Obtaining a license or certification by fraud, deceit, or other
misrepresentation;
F. Assisting another in falsely obtaining a license or certification;
G. Swearing falsely under oath or affirmation;
H. Violation of the American Counseling Association Code of
Ethics and Standards of Practice adopted by the Board;
COMPLAINTS, DISCIPLINARY
HEARINGS, SANCTIONS
I. Violation of board rules and regulations;
J. Declaration of mental incompetence by the court or
appointment of a guardian;
K.
Intentional violation of any provisions of 73-30-1, et. seq. of
the Mississippi Code
* NOTE: The Board may impose sanctions, singularly or in combination –
including probation, but may not impose a fine.
COMPLAINT PROTOCOL
A. The Board is charged with promulgating rules and
regulations for its operation (s).
1. Complaints should be mailed to the Executive Director at
the Board office. The complaint must be on complaint forms
approved by the Board.
2. The complaint must include the street address, phone
numbers, e-mail address, and any other reasonable contact
information of the individual filing the complaint.
3. The complaint should include any witness information.
4. The complaintant is responsible for completing,
notarizing, and returning forms to the Board Office.
COMPLAINT PROTOCOL CONTINUED
B. Upon receipt of the complaint, the Executive Director
will:
1. Assign a case number and enter complaint information in
the Complaint Log;
2. Prepare a file for the original documents of the complaint;
3. Copy the original documents;
4. Send the copy of the Board member assigned the
complaint or, at the direction of the Board, an external
investigator;
COMPLAINT PROTOCOL CONTINUED
5. Complaints shall be assigned among Board members on a
rotating basis by the Board Chair;
6. The option of assigning a complaint to an external investigator
shall be determined on a case by case basis depending on the
Board’s case load.
COMPLAINT PROTOCOL CONTINUED
C. The investigator/investigating board member shall:
1. Investigate the complaint to determine the validity,
appropriateness, and jurisdiction of the complaint based on the
Code of Ethics, the Rules and Regulations, and the statutes
governing LPCs;
2. Inform the accused counselor that a complaint has been
filed against him/her and that he/she is under investigation
within a reasonable time from the date of receipt of the
complaint not to exceed 120 days;
3. The Board member or investigator shall notify the
counselor that a complaint has been filed and that he/she has
ten (10) days to respond to the complaint;
COMPLAINT PROTOCOL CONTINUED
4. The accused licensee may request an extension, of up to
thirty (30) days, to respond to the complaint. Extensions will
be granted on a case-by-case basis. Justification for additional
time is determined by the assigned/designated board
member/investigator.
5. All correspondence to the accused should be completed
using certified US mail.
6. All communications should be copied to the Executive
Director and the Board Attorney.
7. Original mail receipts should be forwarded to the board
office; investigating board members and/or investigators
should keep copies.
COMPLAINT PROTOCOL CONTINUED
D. Criteria used to determine whether a charge is set for
hearing:
1. Whether the person is a licensee;
2. Whether the charge, if true, would constitute a violation
of the Code of Ethics;
3. Whether passage of time since the violation requires that
the complaint be rejected;
COMPLAINT PROTOCOL CONTINUED
E. The Board shall conduct a meeting, with a quorum
present, to hear a case presented by the assigned board
member or investigator.
1. The assigned case number is used in referring to the
case.
2. Only a minimal description of the case should be
offered at this juncture of the proceedings.
COMPLAINT PROTOCOL CONTINUED
3. The Board member can recommend that the Board:
a. Vote to take no action, if no action is merited;
b. Authorize a disciplinary hearing and initiate a formal
complaint and notice of disciplinary hearing;
c. Take other appropriate action, as deemed necessary by
the board; or
d. Resolution of any formal complaint may be made
between the Board and the licensee. (Re: Consent/ Agreed
Order)
COMPLAINT PROTOCOL CONTINUED
F. In the event that the board authorizes that a disciplinary
hearing be held, the following shall occur:
1. The licensee should receive notice thirty (30) days prior to
the date of the disciplinary hearing.
2. Notice shall be considered to have been given if the notice
was personally served, by certified mail to the licensee’s last
known address as listed with the Board, or otherwise
personally served.
3. The notice shall inform the licensee of the facts which are
the basis of the complaint and which are specific enough to
enable the licensee to defend against the complaint.
COMPLAINT PROTOCOL CONTINUED
4. The notice of the complaint shall also inform the licensee of
the following:
a. The date, time, and location of the hearing;
b. That the licensee may appear personally at the
disciplinary hearing and may be represented by counsel; and
c. That the licensee shall have the right to produce
witnesses and evidence on the licensee’s behalf and shall have
the right to cross-examine adverse witnesses and evidence.
COMPLAINT PROTOCOL CONTINUED
5. The disciplinary hearing shall be before the Mississippi State
Board of Examiners for Licensed Professional Counselors
and shall be presided over by the Chair, senior member, or
designee of the Board.
6. Following the disciplinary hearing, the Board shall, in
writing, notify the licensee as to what sanctions, if any, shall
be imposed and the basis for the Board’s action.
7. The Board, upon complaint by any citizen or upon the
Board’s own motion, can compel attendance of witnesses
and the production of documents, and administer oaths and
receive testimony and evidence.
8. The Board may bring a claim upon it’s own motion if it can be
substantiated as any other claim.
COMPLAINT PROTOCOL CONTINUED
G. All disciplinary hearing proceedings are matters of public
record and shall be preserved pursuant to state law.
H. All final orders issued by the Board shall be reflected in the
Board minutes.
I. All proceedings resulting in discipline (a written order; public
reprimand...) are matters of public record and shall be
preserved pursuant to state law.
DISCIPLINARY APPEAL
A. An individual may appeal the decision of the
Board to the circuit court of the county of the
applicant’s residence.
VARIATIONS ON A THEME: THE NORTH
CAROLINA BOARD
ABOUT THE BOARD
-Seven members are appointed by the Governor.
Five are licensed counselors, two are public
members, from different congressional
districts.
DISCIPLINARY PROCESS
Very similar to Mississippi, except each complaint is
assigned a number and sent to an Ethics Committee
that consists of one board member, and the board
attorney. The Ethics committee determines probable
cause to proceed with action on a complaint. The
Ethics committee chair does not then participate if the
matter goes to hearing, although case law does not
prohibit him or her from doing so. The Ethics
committee can refer cases to its investigator if
needed.
DISCIPLINARY PROCESS
WHERE WE DIFFER:
North Carolina’s board does not have time frames within which
to process complaints. The only deadline is that a final written
board decision is due within 120 days after the close of the
hearing.
The licensee can appeal the final agency decision to Superior
Court for judicial review, which is an appellate review of the
record. If licensee is unsatisfied in Superior Court, the case
can go to the Court of Appeals, and then on to the Supreme
Court.
DISCIPLINARY PROCESS
North Carolina just revised its statutes to allow more flexibility in
fashioning disciplinary or remedial action. Our statute used to
be very similar to Mississippi’s.
New statute, entitled “Protection of the Public” states:
The Board may deny, suspend, or revoke licensure,
discipline, place on probation, limit practice, or require
examination, remediation, or rehabilitation of any person
licensed under this Article on one or more of the following
grounds:
DISCIPLINARY PROCESS
Has been convicted of a felony or entered a plea of guilty or
nolo contendere to any felony charge under the laws of the
United States or of any state of the United States.
Has been convicted of or entered a plea of guilty or nolo
contendere to any misdemeanor involving moral turpitude,
misrepresentation, or fraud in dealing with the public, or
conduct otherwise relevant to fitness to practice professional
counseling, or a misdemeanor charge reflecting the inability to
practice professional counseling with due regard to the health
and safety of clients or patients.
DISCIPLINARY PROCESS
Has engaged in fraud or deceit in securing or
attempting to secure or renew a license under this
Article or has willfully concealed from the Board
material information in connection with application
for a license or renewal of a license under this Article.
Has practiced any fraud, deceit, or misrepresentation
upon the public, the Board, or any individual in
connection with the practice of professional
counseling, the offer of professional counseling
services, the filing of Medicare, Medicaid, or other
claims to any third-party payor, or in any manner
otherwise relevant to fitness for the practice of
professional counseling.
DISCIPLINARY PROCESS
Has made fraudulent, misleading, or intentionally or materially
false statements pertaining to education, licensure, license
renewal, certification as a health services provider,
supervision, continuing education, any disciplinary actions or
sanctions pending or occurring in any other jurisdiction,
professional credentials, or qualifications or fitness for the
practice of professional counseling to the public, any
individual, the Board, or any other organization.
Has had a license or certification for the practice of
professional counseling in any other jurisdiction suspended or
revoked, or has been disciplined by the licensing or
certification board in any other jurisdiction for conduct which
would subject him or her to discipline under this Article.
DISCIPLINARY PROCESS
Has violated any provision of this Article or any rules
adopted by the Board.
Has aided or abetted the unlawful practice of
professional counseling by any person not licensed by
the Board.
Has been guilty of immoral, dishonorable,
unprofessional, or unethical conduct as defined in this
subsection or in the current code of ethics of the
American Counseling Association. However, if any
provision of the code of ethics is inconsistent and in
conflict with the provisions of this Article, the
provisions of this Article shall control
DISCIPLINARY PROCESS
Has practiced professional counseling in such a
manner as to endanger the welfare of clients.
Has demonstrated an inability to practice professional
counseling with reasonable skill and safety by reason
of illness, inebriation, misuse of drugs, narcotics,
alcohol, chemicals, or any other substance affecting
mental or physical functioning, or as a result of any
mental or physical condition.
Has practiced professional counseling outside the
boundaries of demonstrated competence or the
limitations of education, training, or supervised
experience.
DISCIPLINARY PROCESS
Has exercised undue influence in such a manner as to exploit
the client, patient, student, supervisee, or trainee for the
financial or other personal advantage or gratification of the
licensed professional counselor associate, licensed
professional counselor, or a third party.
Has harassed or abused, sexually or otherwise, a client,
patient, student, supervisee, or trainee.
Has failed to cooperate with or to respond promptly,
completely, and honestly to the Board, to credentials
committees, or to ethics committees of professional
associations, hospitals, or other health care organizations or
educational institutions, when those organizations or entities
have jurisdiction.
DISCIPLINARY PROCESS
Has refused to appear before the Board after having
been ordered to do so in writing by the chair.
Has a finding listed on the Division of Health Service
Regulation of the Department of Health and Human
Services Health Care Personnel Registry.
DISCIPLINARY PROCESS
The Board may, in lieu of denial, suspension, or revocation,
take any of the following disciplinary actions:
Issue a formal reprimand or formally censure the
applicant or licensee.
Place the applicant or licensee on probation with the
appropriate conditions on the continued practice of
professional counseling deemed advisable by the Board.
DISCIPLINARY PROCESS
Require examination, remediation, or
rehabilitation for the applicant or licensee,
including care, counseling, or treatment by a
professional or professionals designated or
approved by the Board, the expense to be borne
by the applicant or licensee.
Require supervision of the professional
counseling services provided by the applicant or
licensee by a licensee designated or approved by
the Board, the expense to be borne by the
applicant or licensee.
DISCIPLINARY PROCESS
Limit or circumscribe the practice of professional
counseling provided by the applicant or licensee
with respect to the extent, nature, or location of
the professional counseling services provided, as
deemed advisable by the Board.
Discipline and impose any appropriate
combination of the types of disciplinary action
listed in this section.
DISCIPLINARY PROCESS
In addition, the Board may impose conditions of
probation or restrictions on continued practice of
professional counseling at the conclusion of a period
of suspension or as a requirement for the restoration
of a revoked or suspended license. In lieu of or in
connection with any disciplinary proceedings or
investigation, the Board may enter into a consent
order relative to discipline, supervision, probation,
remediation, rehabilitation, or practice limitation of a
licensee or applicant for a license.
DISCIPLINARY PROCESS
The Board may assess costs of disciplinary action against an
applicant or licensee found to be in violation of this Article.
Upon a showing of probable cause to the Board that the applicant
or licensee is not capable of practicing professional counseling
with reasonable skill and safety with patients or clients, the
Board may petition a court of competent jurisdiction to order
the applicant or licensee in question to submit to a
psychological evaluation by a psychologist to determine
psychological status or a physical evaluation by a physician to
determine physical condition, or both.
DISCIPLINARY PROCESS
The Board is required to provide the opportunity for a
hearing under Chapter 150B to any applicant whose
license is denied or to whom licensure is offered
subject to any restrictions, probation, disciplinary
action, remediation, or other conditions or limitations,
or to any licensee before revoking, suspending, or
restricting a license or imposing any other
disciplinary action or remediation. If the applicant or
licensee waives the opportunity for a hearing, the
Board's denial, revocation, suspension, or other
proposed action becomes final without a hearing
having been conducted.
DISCIPLINARY PROCESS
A person whose license has been denied or revoked may reapply
to the Board for licensure after one calendar year from the date
of the denial or revocation.
A licensee may voluntarily relinquish his or her license at any
time. Notwithstanding any provision to the contrary, the Board
retains full jurisdiction to investigate alleged violations of this
Article by any person whose license is relinquished under this
subsection and, upon proof of any violation of this Article by
the person, the Board may take disciplinary action as
authorized by this section.
PUBLIC RECORDS ISSUES
All records, papers, and other documents containing
information collected and compiled by or on behalf of the
Board as a result of investigations, inquiries, or interviews
conducted in connection with licensing or disciplinary matters
shall not be considered public records within the meaning of
Chapter 132 of the General Statutes. However, any notice or
statement of charges against any licensee or applicant, or any
notice to any licensee or applicant of a hearing in any
proceeding, or any decision rendered in connection with a
hearing in any proceeding shall be a public record within the
meaning of Chapter 132 of the General Statutes, though the
record may contain information collected and compiled as a
result of the investigation, inquiry, or hearing.
PUBLIC RECORDS ISSUES
Any identifying information concerning the treatment of or
delivery of services to a client who has not consented to the
public disclosure of the treatment or services may be deleted.
If any record, paper, or other document containing information
collected and compiled by or on behalf of the Board, as
provided in this section, is received and admitted in evidence
in any hearing before the Board, it shall be a public record
within the meaning of Chapter 132 of the General Statutes,
subject to any deletions of identifying information concerning
the treatment of or delivery of services to a client who has not
consented to the public disclosure of treatment or services.
PUBLIC RECORDS ISSUES
(g) A person whose license has been denied or
revoked may reapply to the Board for licensure after
one calendar year from the date of the denial or
revocation.
(h) A licensee may voluntarily relinquish his or her
license at any time. Notwithstanding any provision to
the contrary, the Board retains full jurisdiction to
investigate alleged violations of this Article by any
person whose license is relinquished under this
subsection and, upon proof of any violation of this
Article by the person, the Board may take disciplinary
action as authorized by this section.
CASE SCENARIO
IN THE MATTER OF DR. STEPHANIE SMITH, PHD., LPC
Norma Knaak and her ex-husband were involved in a divorce and child
custody proceeding. Knaak first sought Respondent’s services for forensic
evaluation. On or about December 4, 2006, Norma Knaak filed a
complaint with the Board, alleging that the Respondent had told her that
she (Respondent) would help her (Knaak) but Smith did not represent her;
that the Respondent failed to maintain contact with Knaak (for at least two
months there was no contact at all); that the Respondent failed to perform
investigation and documentation in her case; and that she (Knaak) had to
hire another professional because of the Respondent’s lack of investigation
and documentation; the new health professional made a request for
documentation from Dr. Smith but the information was not forthcoming.
CASE SCENARIO
The investigating board member sent a letter of inquiry asking
Dr. Smith for a response to the Knaak complaint. Initially,
Respondent failed to provide a reply to Knaak’s complaint.
Two days before the hearing Smith’s attorney filed a
response/answer to Knaak’s complaint.
Dr. Smith made her report to the Court. She sent a copy to
Knaak’s attorney but did not discuss the test results with her.
On the basis of Dr. Smith’s report, the Court awarded custody
of Knaak’s daughter to her father, Kent.
THE FINAL BOARD’S ORDER –
CONCLUSIONS OF LAW
1. The Respondent violated Section 73-30-21 (g) of the
Mississippi Code of 1972, as amended, and Chapter 8
Section 1. I of the Board’s Rules and Regulations in that
she failed to respond to the Board’s request for
information as required by Chapter 8 Section 2.D of
said Rules and Regulations. [Now - Chapter 8, Sec. 2, C
3 & 4]
THE FINAL BOARD’S ORDER –
CONCLUSIONS OF LAW
2. The Respondent violated Section 73-30-13
and 73-30-21 (g) of the Mississippi Code of
1972, as amended, Chapter 7 and Chapter 8,
Section 1. H of the Board’s Rules and
Regulations in that she did not comply with the
following American Counseling Association
(ACA) Code of Ethics and Standards of
Practice, adopted by the Board:
THE FINAL BOARD’S ORDER –
CONCLUSIONS OF LAW
a) There was no evidence that Respondent was
available to Knaak for nearly two months and/or that
she even communicated the results of her evaluation
with Knaak in contravention of Section A (Welfare of
Those Served by counselors) and A.1.a. respect the
dignity and to promote the welfare of clients”); and
Section E.1.b. (Counselors “respect the client’s right
to know the results, the interpretation made, and the
basis for counselors’ conclusions and
recommendations”);
THE FINAL BOARD’S ORDER – CONCLUSIONS
OF LAW
b) The Respondent failed to even respond to the request for
information from another professional retained by Knaak in
violation of Section D (“...Counselors develop positive working
relationships and systems of communication with colleagues to
enhance services to clients”), D.1(“Relationships with Colleagues,
Employers, and Employees”), D.1.b (“Counselors work to develop
and strengthen interdisciplinary relations with colleagues from other
disciplines to best serve clients”), D.2 (Consultation), and D-2.d
(“When providing consultation, counselors, have an obligation to
review, in writing and verbally, the rights and responsibilities of
both counselors and consultees. Counselors use clear and
understandable language of the services to be provided, relevant
costs, potential risks and benefits, and the limits of confidentiality.
Working in conjunction with the consultee, counselors attempt to
develop a clear definition of the problem, goals for change, and
predicted consequences of interventions that are culturally
responsive and appropriate to the needs of consultees”); and
THE FINAL BOARD’S ORDER –
CONCLUSIONS OF LAW
c) Respondent did not obtain any type of written
informed consent documenting that she had clearly
communicated the nature of her relationship with Knaak in
violation of Section E. 13 (Forensic Evaluation: Evaluation of
for Legal Proceedings) and E. 13.b (“Individuals being
evaluated are informed in writing that the relationship is for
the purposes of an evaluation and is not counseling in nature,
and entities or individuals who will receive the evaluation
report are identified. Written consent to be evaluated is
obtained from those being evaluated unless a court orders
evaluations to be conducted without the written consent of
individuals being evaluated”).
THE FINAL BOARD’S ORDER –
CONCLUSIONS OF LAW
3. Respondent failed to conform to minimum ethics and
practice standards as they relate to ACA Code of
Ethics Section C (Professional Responsibility) and C.
1 (“Counselors have a responsibility to read,
understand, and follow the ACA Code of Ethics and
adhere to applicable laws and regulations”). By such
conduct, Respondent has also violated Section 73-3013 and 73-3-21(g) of the Mississippi Code of 1972, as
amended, and Chapter 8, Section 1. H and I of the
Board’s Rules and Regulations.
ADJUDICATION
THE BOARD ORDERED THAT:
1. Respondent be publicly reprimanded.
2. Respondent take, at her own expense, and successfully complete three (3) hours of
continuing education in Ethics in the area of Informed Consent. (These hours were
in addition to the continuing education hours required by the Board for licensure
renewal).
3. Respondent develop and implement for use in her practice the following
documents, which must meet the requirements of the ACA Code of Ethics: the
Informed Consent, Release of Information and Professional Disclosure Statement.
4. Respondent bear all costs relating to her compliance with the terms of the Final
Order.
NOTE: Failure to comply with the terms of the order would subject Respondent
to further disciplinary action, including revocation by the Board.