Due Process in Professional Misconduct Investigations in New Hampshire: Why You Don't Have the Right to Not Incrimate Yourself (1)

By Bruce L. Levine, Ph.D. and Katherine Cooper, J.D.

Bruce L. Levine, Ph.D.                                                     Katherine Cooper, J.D.(2)

Licensed Psychologist (NH, VT)                                      Assistant Attorney General

Clinical Associates in Psychology & Psychiatry              Administrative Prosecution Unit

Private Practice, Norwich VT & Hanover NH                   Consumer Protection

Adjunct Assistant Professor of Psychiatry                       & Antitrust Bureau                   

Dartmouth Medical School                                               Department of Justice

                                                                                          Concord, New Hampshire

Introduction

              In recent publications both at the national level (Shapiro, 2006; Williams, 2001) and at the state level (Kandle, 2006, 2003; Mart, 2003), writers express concern about psychologists’ vulnerability to a perceived lack of due process protections in the investigatory process.  Williams (2001) even urged creation of state watchdog groups to investigate and document “unfair licensing board activities” (p. 344).

              Since each of the authors of the current paper have many years experience with investigations conducted by the Board of Mental Health Practice in New Hampshire (“Board”)(3) , we would like to offer our perspective.

              It is very true that in the domain of administrative law, due process provisions are different – and lesser – than in the domain of the oft-cited criminal law context.  But this is an apples-and-oranges comparison.  The two systems have different processes because they are seeking to attain different goals under different circumstances.  We hope it will come as welcome news, however, that in New Hampshire, licensees are actually afforded greater protections in many of the areas of concern cited by Shapiro and Williams than licensees in other states.

              First, some background -- the definition of “licensure” in Sperry’s (2007) dictionary of ethical and legal terms in mental health is:  “A form of professional regulation that restricts both the use of a professional title, such as ‘psychologist,’ and the practice of the profession” (p. 61).  Notice the emphasis on “regulation” and “restrict.”  The basic covenant is that, in exchange for the powerful benefits of being licensed (essentially the ability to practice autonomously and with the use of titles and status and to participate in insurance billing and other financial benefits), licensees agree to be regulated by the state.  The state’s interest parallels the profession’s interest in ensuring that licensees have mastery of the specialized knowledge of the profession, that they provide services which have social value, and that the delivery of services is adequate and competent.  Licensing is a privilege, not a right, and in the United States, legislatures have granted this privilege and allowed for what is largely self-regulation of the profession.

              The history of psychology in the U.S. is one of intense, guild-driven efforts in the postwar period to enable psychologists to be reimbursed directly and to avoid practicing as subordinates of psychiatrists or other physicians (Danish & Smyer, 1981; Gross, 1978, 1993).  It is universally acknowledged that licensing exists for the protection of the public and that it has accompanied the professionalization of psychology and other mental health disciplines.  Licensing serves both the public’s interests and the profession’s interests.

              We turn now to our discussion of due process protections in the administrative law context associated with licensing board investigations and disciplinary decisions.

Right Against Self-Incrimination?

              While a citizen accused of a crime has a constitutional right to not incriminate him- or herself (of which the recitation of Miranda warnings reminds us), that right is grounded in the potential loss of liberty in a criminal prosecution.  A psychology licensee has made an a priori agreement in procuring that license to fully cooperate with licensing board investigations (just as a driver pre-agrees to submit to a breath test for alcohol by accepting a driver’s license).  In New Hampshire, the Board rules require licensees to cooperate with investigations.  Licensees under investigation may respond to inquiries directly to the Board Investigator (BI) or through an attorney.  The licensee’s cooperation may include providing information or testimony that is detrimental to the licensee’s interests.  If licensees believe that such information or their testimony may implicate them in criminal charges, they may still invoke their protection against self-incrimination. 

              If a licensee chooses to remain silent or fails to cooperate with an investigation by refusing to turn over records or by some other action or inaction, the Board may draw an inference against the licensee for such conduct.  Drawing inferences of this kind is also permitted in the criminal context as well as in other types of civil contexts.  For example, if a driver refuses to take a breath test for alcohol, the Department of Motor Vehicles may take away the driver’s license through an administrative action.  If that driver is also charged criminally with driving under the influence, the judge or jury, too, may draw an inference of guilt against that driver based on the driver’s refusal to take a breath test.  Such inferences are allowed in a variety of legal contexts.

              In addition to rules that compel licensee cooperation with Board investigations, there is also an ethical rationale.  Members of the profession, as part of the “deal” of self-regulation in exchange for the privilege of licensing, are expected to have an ethical commitment to serving the public good and protecting the integrity of the profession.  This includes ensuring that practitioners have the necessary training and knowledge to provide quality work; screening applicants and socializing trainees to make them ethical and committed professionals; and promising to uphold professional ethics.  This further includes having mechanisms to self-police the profession and penalize incompetent or corrupt practitioners.  Fulfilling these expectations requires cooperation on the part of professional licensees.

Discovery and Challenging Evidence

              In administrative proceedings, the prosecution is not required to share all the information that would be shared in a criminal or civil case.  It has been generally recognized that there is no basic constitutional right to prehearing discovery in administrative proceedings (see, e.g., Silverman v. Commodity Futures Trading Commission, 1977; Starr v. Commissioner of Internal Revenue, 1955).  Discovery is governed by the Board’s statutes and rules.  In New Hampshire, there is no requirement for prehearing discovery in either the Board’s rules or enabling statutes and such discovery is not required by federal law.  However, it is the policy of the Administrative Prosecutions Unit (APU) to share all exculpatory information and to provide the Report of Investigation (ROI) to licensees once a Notice of Hearing (NOH) is filed.  The Board’s rules also require that lists of witnesses and exhibits be exchanged prior to the hearing, another protection that is greater than required in many other states.  This precludes the scenario of “surprise witnesses” undermining a licensee’s opportunity to mount an effective defense described by Williams (2003).

              A key fact that is often misunderstood by the system’s detractors is that in New Hampshire, investigations are not released until a person is charged – in both criminal and administrative contexts.  Thus, in a professional disciplinary action, an ROI is not released unless and until a NOH is issued against a licensee.  Once a NOH is issued, the proceedings become public and the results of the investigation may be shared.  Due process protections attach once the NOH is filed. (4)   Critics who urge for earlier release of the ROI overlook that the administrative process enables licensee involvement earlier than would be allowed in a criminal investigation.  The system as designed provides licensees with an opportunity to provide input into the investigation, avoid being charged publicly, and negotiate a settlement agreement prior to a charge being filed in cases where misconduct has occurred.  Indeed, very few cases ever go to a public hearing.  Many criminal defendants would leap at the chance to resolve a criminal matter in such a way.  In most cases, too, the specific content of the investigation is not shared because the Board dismisses the vast majority of investigations without bringing any disciplinary action.  Holding investigations confidential until a charge is formally filed benefits licensees as much as it benefits complainants or the public.  Those urging earlier disclosure of ROIs should consider that such documents would need to become public to all, including the media and the complainant, should they be shared prior to filing an NOH.

              Shapiro (2006) stated that, in many states, licensees are not informed of the identity of their accuser in order to prevent licensees from altering their records.  In New Hampshire, the Board sends a copy of the complaint to the licensee immediately upon acceptance by the Board so that he or she is aware of the initial allegations when responding to the investigation.  The Board also requests records directly from licensees, thus demonstrating faith that licensees will provide accurate records.

Hearsay

              Hearsay testimony (i.e., an out-of-court statement offered to prove the truth of the matter asserted in court) is not permitted in criminal trials but may be admitted in administrative prosecutions because the New Hampshire Rules of Evidence do not apply in administrative hearings.  The Board, however, has discretion as to how much weight to give to hearsay testimony and may require live, first-hand testimony.  Also in New Hampshire, unlike some other states, licensees have the opportunity to have subpoenas issued to witnesses to help bolster their defense.

Appellate Process

              In some states, licensees may not appeal the action against their license to a court of law.  In New Hampshire, a licensee may file a direct appeal to the New Hampshire Supreme Court, thereby obtaining a court review without bearing the burden of the additional cost of re-litigating the matter before a lower court.  In other states, there is an administrative law judge as well as the licensing board, and in some states the board is free to accept or reject the administrative judge’s ruling.  Williams (2003) described the situation of a licensee bearing the financial (and emotional) burden of mounting a defense, only to have the result be “non-adopted” by the licensing board.  That cannot happen in New Hampshire.

Standard of Proof

              The standard of proof applied in the Board’s hearings is “preponderance of the evidence.”  Shapiro (2006) argued that this threshold is too easily met and that the “beyond a reasonable doubt” standard of criminal cases should be applied.  This standard, however, would be highly unusual in administrative matters (Van Horne, 2004).  In explaining his rationale, Shapiro said it was because non-psychologists “who have little or no training in mental health” conduct most investigations and would therefore be oblivious to “the more subtle psychological issues” (2006, p.14).  This is not the case in New Hampshire, as investigators are licensees themselves, reflecting the self-regulation of the profession discussed earlier.  Five-sevenths (71%) of the Board is comprised of licensed mental health professionals.  The Board reviews complaints and forwards them to other licensed professionals who, with the cooperation of APU attorneys, conduct the investigations.  If a matter proceeds to a hearing, the Board serves as the finder of facts and issuer of rulings.  Psychologists and other mental health professionals are centrally involved throughout the process.

Statute of Limitations

              The Board does not have a statute of limitations at this time, unlike some other boards both in New Hampshire and in other states.  The New Hampshire Board of Medicine has a six-year statute of limitations and there are criminal statutes of limitations.  As a practical matter, the lack of recency of allegations in a complaint is a consideration.

Outside Reviews

              As inside actors in the investigation process, we often hear from complainants and mental health consumers that the Board will “circle the wagons” to protect its colleagues.  From the community of mental health licensees, on the other hand, we often hear the opinion that the Board is heavy-handed and unfair. 

              Van Horne (2004) reviewed complaint and disciplinary data from 37 states and provinces in North American covering about two-thirds of all licensed psychologists in the United States and Canada.  After extensive analysis, she concluded: “The data collected support an alternative perspective to the view that licensing boards are overzealous in their disciplinary procedures and actions against licensees or that they are lax in their protection of the public.  In fact, few complaints are filed and most do not lead to discipline” (p. 170).

              More locally, in 2004, the New Hampshire Legislative Audit Division completed a detailed performance audit of the Board of Mental Health Practice.  It examined data covering a period of five years (2000-2004) and found that 77 percent of all complaints were dismissed (some including a confidential letter to the licensee with recommenda-tions or warnings).  The auditors concluded,  “The number of investigations and disciplinary actions the BMHP has taken against psychologists are proportional when compared to [national] results” (p. 18).  The auditors made a number of recommenda-tions, including the need for more explicit rules and standardized criteria for the investigatory process, but agreed with the due process positions described above, explicitly commenting that licensees receive “the due process protections afforded by State law” (p. 47).

Conclusion

              Psychologists and other mental health practitioners in New Hampshire are self-regulated according to statutes and rules that provide adequate due process protection.  The fact that the system does not contain all the protections of the criminal justice system reflects the fact that membership in the profession is voluntary and that protection of the public is a necessary and important component of self-regulation by the profession.  While it is always possible to improve any system of justice – or to criticize a system in a particular case when only one side of the facts is known – relevant statistical comparisons bear out that the Board is well within national norms regarding rates of investigation and disciplinary outcomes.

Notes

(1) This opinions expressed in this article are those of the authors and do not necessarily represent the view of the New Hampshire Psychological Association.

(2) This article represents the opinions and conclusions of its authors and not necessarily those of the New Hampshire Attorney General.  The material presented herein may not be understood to be an Opinion of the Attorney General, which are formal documents rendered pursuant to statutory authority, nor to express the view of the Attorney General.

(3) Levine as a Professional Conduct Investigator (PCI) with the N.H. Board of Mental Health Practice, and Cooper as an Assistant Attorney General with the Administrative Prosecutions Unit, which works closely with the Board’s PCIs as well as other professional licensing boards.

(4) Due process protections in the administrative context include, among others, the right to notice of the charge(s), the right to confront and cross-examine witnesses when live testimony is allowed by the Board, the right to present evidence in one’s defense, the right to contest the allegations, the right to a neutral finder of fact, and the right to appeal to the courts.

References

Danish, S.J., & Smyer, M.A.  (1981).  Unintended consequences of requiring a license to    help.       American Psychologist, 36, 13-21.

Gross, S.J.  (1993, August).  Licensing: The price we pay for parity.  Paper presented at the           101st Annual Convention of the American Psychological Association, Toronto, Ontario.

Gross, S.J.  (1978).  The myth of professional licensing.  American Psychologist, 33, 1009-1016.

Kandle, M.  (October/November 2006).  Psychotherapy risk management: Something’s got to         change.  New Hampshire Psychological Association Networker, 18(2), 6-7.

Kandle, M.  (October 2003).  Reconsidering the functions of NH’s Board of Mental Health            Practice.  Networker (Newsletter of the New Hampshire Psychological Association, Inc.),         15 (7), 1-2.

Mart, E.  (November 2003).  The New Hampshire Board of Mental Health: Suggestions for            reform.  Networker (Newsletter of the New Hampshire Psychological Association, Inc.),         15 (8), 6-7.

Shapiro, D.L.  (November/December 2006).  Viewpoint: Licensing board rules need revision.          The National Psychologist, 15(6), 14.

Silverman v. Commodity Futures Trading Commission, 549 F.2d 28 (7th Cir. 1977).

Sperry, L.  (2007).  Dictionary of ethical and legal terms and issues: The essential guide for             mental health professionals.  New York: Routledge/Taylor & Francis.

Starr v. Commissioner of Internal Revenue, 226 F.2d 721 (7th Cir.), cert. denied 350 U.S. 993         (1955).

State of New Hampshire.  (November 2004).  State of New Hampshire Board of Mental Health     Practice: Performance Audit Report.  Concord, NH: Office of Legislative Budget          Assistant.

Williams, M.H.  (2001).  The question of psychologists’ maltreatment by state licensing boards:       Overcoming denial and seeking remedies.  Professional Psychology: Research and            Practice, 32, 341-344.

Van Horne, B.A.  (2004).  Psychology licensing board disciplinary actions: The realities.     Professional Psychology: Research and Practice, 35, 170-178.