1. health and fitness

Proctoring of Disciplined Health Care
Professionals: Implementation and
Model Regulations
ROBERT S. WALZER, MD, JD, FCLM
STEPHEN MILTIMORE, JD
Qverniem: Too often, say the authors, the probationary program overseeing a
disciplined health care provider's clinacalperforrnarace orrehcsbilitation isflQmed
by a weak or cavalier sys-tem for selecting andguiding monitors and thercapists.
They recommend panels of screened and trained volunteers be developed as the
basis for a sound and methodacal probationary prograrn.lUlembers ofthese panels
should understand their duties, be provided legal immunity, and be given
appropriate m ea.ns to faslfill their tasks. The authors offer model regulataons for
establishing a program such as they describe.
Dr Walzer practices health law for Reiss, Walzer, Vasta & Storks. Mr
Miltimore is an attorney with the Connecticut Department of Health and
Addiction Services.
he order for probationary practice and treatment or rehabilitation for
certain disciplined health care professionals, requiring designation of
practice monitors or supervisors and psychotherapists, is a significant responsibility for the disciplinary authority.' Many or most state licensing agencies
lack statutes or regulations governing the careful, consistent and responsible
performance of this process, from screening candidates for the needed services
to policing the execution of their assignments.
Given the current demand by the public for more effective policing and
discipline of health care providers and the thrust of the Health Care Quality
Improvement Act of 1986;2 licensing agencies now are faced with the
challenge to provide a specifically delineated program, in rules and regulations, for the mandated monitoring, supervision and treatment of disciplined
health care professionals. The vague protocols that are generally relied upon
no longer have a place in serious consumer protection and public interest.
In this paper, we develop and propose a system for obtaining screened,
trained reviewers and therapists, along with the administrative rules and
regulations to establish and govern such a process. The plan rests upon a
selection process that requires a pre-developed and continually maintained
pool of screened and specially prepared candidates from which are carefully
drawn the designated monitors, supervisors and therapists who agree to serve
on a fee-for-service basis, billed typically to the respondent.
In order to develop our thesis cogently and comprehensively, we shall
proceed through a consideration of the various issues and then present model
T
Vol 81, No 2 1994
Vague protocols no longer
have a place in serious consumer protection
79
implementation regulations. In some jurisdictions, it is likely that certain
enabling statutes will be necessary, for instance, to create immunity for
designated practice reviewers.
BACKGROUND AND ISSUES
Discipline is applied to health care providers when, upon complaint and
following investigation, cause is found to justify such action 3 Not all disRarely are speeifaeguidelines in placefor oversee-
ciplined providers invariably face license revocation or suspension. Those who
do not are generally permitted to continue in practice under a requirement to
obtain corrective education, psychotherapy, or other care as determined by
ing activities
the Iicensing board, and/or to have their practices supervised or monitored
by specified colleagues. Rarely are specific guidelines in place for the overseeing
activities.
The disciplinary body typically has to seek the experts for these activities on
a case-by-case basis. Often, a search begins anew with each case. In some
agencies, a small stable of "regulars" is relied upon, who presumably bear no
conflict of interest in the case. But often, ironically, the respondent is given
the opportunity to propose his or her own overseers, with expectable unproductive or even harmful results. In what other area can a miscreant dictate
his or her own-probation officers or proctors?
Peer reviewer immunity is not sacrosanct in all jurisdictions, and potential
proctors speak of a valid fear of liability exposure to allegations of breach of
confidentiality of the respondent or the patients, or a defamation suit, or harm
to the respondent's patients where recidivism occurs. Thus, physicians and
dentists are very apprehensive about assuming duties in oversight of others'
practices without express immunity. In Texas, a supervisor was named in an
action for negligent supervision; the case was settled confidentially. The same
issue is presently in litigation in another state.
In a consent order in one state, a particular respondent provided an office
mate and another longstanding friend as psychotherapist and monitor; the
respondent was soon back to sexual exploitation of patients and a subsequent
complaint was filed. Often tardy and barely perfunctory reports had been filed
by the proctors. The price to society is obvious.
Where reviewers are un-
Fortunately, in most cases of misconduct in general, correction does take
place and the practitioner resumes full.practice. In the more serious violations,
such as characterological sexual misconduct and drug infractions, recidivism
is not uncommon. A skeptic wonders how often a recalcitrant respondent
trained, a respondent
merely hopes to conform to the expected standard only during the probation-
might manipulate the
ary period. Where reviewers are untrained for their task, a respondent might
program
expectably perceive the weaknesses and manipulate the program.
Because most states do not have statutes that proscribe particularized acts or
forms of conduct in professional practice, or define standards of care, the
licensing agencies have relied on professional ethics and tort law decisions as
guidelines in dete rminin g conduct of license holders that is contrary to the
public good. But there are many unclear and unsettled questions about
conduct. When is a touch erotic? When is a hug or a kiss inappropriate? What
actually is sexual misconduct? How long after termination of medical care may
a physician go on a date with a patient? Have an affair? Marry? Do the same
so
FEDEHATTON BULLETIN
standards in this sense apply to a surgeon as to a psychiatrist?
While the goals of monitoring, supervision and treatment are comparable in
that they are aimed at preventing repetition of the harmful conduct, they are
different. While practice review does serve a deterrent purpose and as a
continuing reminder to the disciplined practitioner that improvement in
conduct or skill must be made, it is important to understand that punishment
and rehabilitation are different from each other.
The licensing boards must be in a position to designate and to require
appropriate treatment and monitoring plans to fit the particular needs of the
case. Therefore, the licensing board necessarily has the burden, prior to the
final decision, to make a determination, through appropriate or independent
experts, of the origin and nature of the conduct.
Agencies need an adequately thorough approach that provides for useful
resources, including the carefui preparation, diligent screening and regular
updating of the programs and the panels of reliable reviewers and therapists.
The attitude and methods of the licensing authorities can enhance or deter
the disciplinary or rehabilitative programs. As Gonsiorek points out, these
agencies may prescribe duties excessively, making the role of the overseer or
therapist too limited, constrained or burdensome, or in the alternative, too
autonomous.4 An effective disciplinary process that is created and administered
fairly and reasonably would provide for both the public and the professions a
respected and consistent service. Absent a well-articulated and methodically
administered protocol of agency rules and regulations, the best of intentions
on the part of the board of examiners are shipwrecked on the shoals of
negligence and chicanery.
Punishment and
rehabilitation are different
from each other
DISTINCTI0NS IN FORMS OF PRACTICE OVERSIGHT
Monitoring
Monitoring shall refer to a policing or proctoring function to review, analyze
and consider, perhaps with some professional suspiciousness, both the case
inventory and various observations of the practitioner, through a method of
actual review of appointment books, practices and procedures, case records
and interviews of the practitioner.
Monitoring, under some circumstances, involves collection of random blood
or urine specimens and overseeing progress in a substance abusing
practitioner's rehabilitation or abstinence and conduct generally. Medical
societies can and do have arrangements with licensing authorities to monitor
their errant or impaired colleagues with considerably more scope than it is
possible to grant other professional societies.
Monitors should be sufficiently experienced for the duties assigned. Some
medical societies provide, by prior agreements and statutes, confidential
treatment and monitoring programs for colleagues, while others may provide
monitoring but not rehabilitation. Thus, there may be "specialization" of
monitors for different responsibilities.
The monitoring of a psychotherapist after sexual misconduct with a client
drastically differs in needs and method from the monitoring of a physician
who abused controlled substances, or the monitoring of an ophthalmologist
found deficient in surgical expertise. In the mental health fields, which
Vol 81, No 2 1994
nere may be "speciali.za
tion " of m oraitors for different responsibilities
81
arguably involve more art, nuance, abstraction and self-control than do other
medical specialties, as well as critical reliance upon the patient- therapist
relationship itself, close supervision combined with monitoring is a feasible
approach.
Supervision
Both a monitor and supervisor have the authority to
intercede in work that is
faulty
For deeper change and
rebcabilitation, we look to a
counseling or treatment
program
82
Supervision is a form of "proctoring," used herein to connote an integrated
method of teaching and training a practitioner over a period of time that
utilizes academic discussion of the supervisee's clinical work with patients. To
some, a supervisor also bears a directorial or managerial role, vis-a-vis the
work supervised. Both a monitor and supervisor have the authority to
intercede in work that is found to be faulty.
Supervisors should meet, in an office, for at least one hour per week with the
respondent. In a disciplinary system, it is the supervisor who should select the
cases to be considered, after periodic review of the full census of patients in
the practitioner's current practice, with updating review and selections from
time-to-time. A mechanism should be in place for resolution of disputes.
Inherent in the supervisory process lies reflection upon the respondent's
style, comportment and conduct, as well as analysis and study of the verbatim
process notes of sessions. The aim in this tutorial process is the evaluation of
the supervisee's needs for achieving a more mature, ethical and educated level
of skill and professionalism in order to attain a level of performance that is
acceptable as the standard of care. Thus, supervision is a didactic review of
selected cases in a formal tutorial relationship that should be intellectually
demanding of both participants while focusing on the professional growth
and honesty of the supervisee. Therefore, a supervisor is generally a more
senior practitioner in the same profession, with experience at least comparable
in years of practice and level of training, as the respondent.s
For disciplinary purposes, supervision is an instrument for evaluation and
instruction while monitoring serves the purpose of observation and control.
Both processes are implemented for conduct correction through oversight
and retraining. For deeper change and rehabilitation in the respondent, we
look to a counseling or treatment program.
Treatment and Rehabilitation
"Therapy" and "psychotherapy" are used herein in their general meaning, to
refer to treatment in a professional relationship entered for the purpose of
corrective or curative treatment of the one by the other. The objective of such
treatment may be defined on a case-by-case basis; for instance, as a cure or
corrective modification of personal problems, disorders, psychopathology,
addictions, habits or idiosyncrasies. On the other hand, medical treatment
would be required for achieving cure or amelioration of physical and
physiological disorders and symptoms. In either regard, the objective is the
treatment of conditions that interfere with the skills or safety with which the
respondent practices professionally. Reliance on a consultant is necessary in
the determination of the need and possibilities for any treatment.
Treatment may involve hospitalization, followed by outpatient care and
random urine analyses, or may require only a year or more of frequent
FEDERATION BULLETIN
individual psychotherapy sessions. Treatment may occur in a spectrum of
settings, ranging from in-patient to private office, one-to-one treatment, to
an out-patient group modality for rehabilitation of behavior unacceptable
and/or illegal for a health care professional. Such professional rehabilitation
programs often involve a surveillance or monitoring of blood or urine for
presence of certain controlled substances or alcohol. From each treatment
setting, regular reports should be submitted, even if the practitioner is
temporarily out of practice. Professional treatment may be supplemented by
support systems including AA.
The treating therapist shall be expected to provide assistance to the board at
three stages. First, the therapist can act as a consultant to provide evaluative
and prognostic information. Later, the therapist will provide progress reports.
Finally, the therapist shall provide a summary with medical opinion regarding
degree of rehabilitation and appraisal of post-therapy stability or vulnerabilities, with recommendations concerning follow-up consultation or
monitoring needs.
A therapist in this setting is neither entirely objective nor solely the fiduciary
of the respondent, as one would be in a non-disciplinary context. The therapist
A therapist in this setting
as raeither entirely objective
nor solely tbe fxduciary of
the respondent
has a duty to the board for limited disclosures and a higher duty to the public
than in a non-disciplinary role. This is comparable to the role of a training
psychoanalyst in a psychoanalytic institute, where the analyst has evaluating
and reporting duties.
A therapist must be one who can take a stand that, when the diagnosis is
made that speaks for untreatability of the respondent or the behavior in
question, regardless of any other feelings for the individual, a report of this
finding is conveyed to the licensing agency. All reviewers and therapists must
be informed that they may oppose an ordered disciplinary or rehabilitative
program when, in their expert opinion based upon information arising in the
course of the process, such grounds exist. This would include the possibility
of an opinion that a probationary or suspended license should not be reinstated
at the end of the mandated term of discipline.
The board should not act in dual directions in a disciplinary case. Its
disciplinary role in the public interest should not be confused by the medical
expertise it may possess, which could lead it to prescribe medically for the
respondent.6
Consultation
The consultant should be a person of supervisory or professorial stature
who provides professional guidance regarding a particular question at any
stage. A consultant who is a psychologist or psychiatrist would serve to
assist the board in its early determination as to whether the particular
respondent's case suggests the n.eed for psychotherapy. The consultant may
actually meet with the respondent upon consent during the investigation
for a clinical evaluation to be prepared for the purposes of the board in
making its determination.
A consultant's services are useful at two phases in a case, at least. One is during
the investigational phase of the case, and in the determination of the conditions
for a consent agreement. The other may arise during the course of probation,
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The consultant may meet
with the respondent upon
consent during the investigation far a clinical
evaluation
83
The consultative experience
for the respondent should be
agratifying one
in order to resolve questions of compliance or progress, or at the end of the
stipulated period to evaluate whether the respondent is suitable for full
reinstatement. This utilization of consultant services also helps preclude
suggestion of arbitrary expression by the board through confusion of disciplinary with rehabilitative aims.
The consultant who is to meet with a respondent periodically upon the
terms of a consent agreement should be responsible for recommending to
the board any perceived need for treatment of the respondent, even though
it had not been found necessary prior to the execution of the consent
agreement or ruling of the board. The duration and number of meetings
between a consultant and the respondent should be flexible to provide the
consultant additional time if requested for purposes such as intermittent
situational need.
A consultation may be a one-time or occasional service or a series of periodic
meetings which may or may not terminate coincidentally with the
respondent's treatment of a particular case under consideeration. The consultative experience for the respondent should be a gratifying one so that the
custom is developed to rely upon a consultative process even following the
expiration of the consent agreement. Such continuing reliance on consultation
could be an important preventative of recidivism.
REFINING THE ADMINISTRATION OF DISCIPLINARY CONDITIONS
An investigator should
have clocumented, periodic,
personal contact with the
overseer(s)
Structuring the Reports
Because of the many parties involved in the disciplinary probation of a health
care practitioner, and the panoply of underlying issues, the receipt, review and
integration of critical information from various sources is the major concern
of the licensing agency.
To enhance the value of reporting by therapists, rather than reEying on their
own initiative and preference regarding the content of reports to the agency,
the agency should provide questionnaires to be completed at regular intervals.
These forms can be prepared by the licensing agency for each health care
profession, with the assistance of the consultants.
The forms or questionnaires need not be lengthy or extensive, but most of
the questions should be leading and a few should require expositive answers.
The instruction to answer forthrightly and with particularity should be noted
on each form, along with a statement of immunity from civil action. However,
there also should be a statement describing the possibility of liability for
dishonest or deceptive responses.
Exclusive reliance, however, on completed forms or other spontaneous
reports invites evasive disclosures or permits misinterpretation of the information. An investigator, therefore, should have documented, periodic, personal
contact with the overseer(s) for purposes of discussion and evaluation.
Special Problems in Overseeing Impaired Professionals
In the matter of impaired professionals, particularly those whose conduct or
illness involves substance abuse and/or denial of the seriousness of the
problem, an initial period of in-patient treatment usually proves invaluable in
84
FEDEAA'I'ION BULLETIN
pressing the individual to conffont and admit, as well as to define, the problems
and the reasonable therapeutic objectives.'
Court ordered therapy, however, so commonly a basis of probation for
juvenile behavior disorders and adult misdemeanors, is notoriously unsuccessful because the treatment is perceived as punishment, and the therapist an
extension of the court, police or probation department. Trust in the relationship is therefore nil, and confidentiality is out of the question. The
respondent's therapist is in an uncomfortable bind: by training and inclination
the intent is to serve the patient, but the state is an intervening party to be
served. The respondent's patient is at best an intended third party beneficiary
of the therapist-state agreement.
The now customary reliance upon frequent random urine tests for substances abused are believed to serve the dual purpose of deterrence and
detection. However, challengers of such testing cite scientific findings that
alcohol remains in the blood and urine for only several hours.$ By the day
after a "slip," when a test may be done, the alcohol has been eliminated. A
manipulative and non-compliant respondent may consume alcohol on
weekends or some nights, and maneuver a requested specimen contribution
to avoid detection.
Narcotics, barbiturates, and tranquilizers remain detectible for even a week
or more after ingestion, however, so testing is more reliable. Many rehabilitation experts rely preferentially upon their close therapeutic relationships rather
than testing for scrutiny and detection of non-compliance. These experts do
admit that testing provides some deterrent factor.
The authors emphasize that witnessed collection and urine testing is a costly,
inconvenient, and embarrassing procedure. This consideration should be
borne in mind when consent agreements are hammered out, with regard to
fairness and reasonableness. The demand for urine testing even when the
respondent is out of town or abroad is more punitive than rehabilitative. If
abstinence is the price of recovery and testing is resumed upon return, then
injudiciousness and public jeopardy are quickly detectable.
On Site Investigation
Finally, an unannounced or undercover visit by a licensing agency investigator
is another means of scrutinizing the clinician on probation, at least when there
arises reasonable doubt of compliance. Accepted generally on legal grounds
as a permissible activity, so long as warrantless search and entrapment do not
occcur, these visits have withstood judicial challenge.9
Unusual or Alternative, "Maverick" Practitioners
Maverick and respectable minority practitioners incur complaints through
their unusual methods or because of insufficiently informed patients, as well
as through their own, often idiosyncratic, personalities. While they do not all
present a danger, those who are reported have a right to the same due process
In-patient treatment
usually proves invaluable
in pressing the individual
to confront problems
The demcand for urine testing even when out of town
or abroad is more punitive
than rehabilitative
as other practitioners.
Vo181, No 2 1994
85
ESTABLISHING PANELS OF SUPERVISORS, MONITORS, AND
THERAPISTS
Professional societies should
be urged to provide xvilling
and capable member volunteers
Supervisors, therctpists and
monitors require preparation for the duties they shall
assume for proctoring
86
Sources and Selection
Volunteer proctors and therapists should be sought through periodic invitations issued to hospitals and teaching faculty senior staffs throughout the state.
The licensing agency might solicit volunteer panelists via enclosures in
registration renewal mailings. Professional societies also should be urged to
provide willing and capable member volunteers. It is to the mutual advantage
of the professions and the public for such societies to solicit, screen and help
in the preparation of potential monitors, supervisors and therapists, and to
submit regularly updated lists to the licensing agency or board. These lists
might provide information on each candidate regarding education, training,
experience, affiliations, years in practice, academic activities, publications, and
other information considered relevant.
The licensing agency should keep these files for each licensed health profession. When a specific need arises, names on the appropriate list can be selected
for initial screening. A check of the file, the National Practitioner Data Bank,
and the Board Action Data Bank of the Federation of State Medical Boards,
where relevant, would be basic. The licensing agency then might send an
inquiry and invitation to two or more candidates, regarding past and current
supervisory or monitoring activities.
Some may perceive the activity differently from others and, therefore, the
candidates might be asked to briefly describe their views on the activity, and
perhaps on the particular kind of issues or conduct for which the consent
agreement was entered. Selected proctors and therapists must expressly agree
to report frankly to the disciplinary agency information that may reasonably
be necessary for the agency to render a determination and plan. A personal
meeting with the candidate(s) should be scheduled at some time during the
selection process. A pre-printed statement of duties, agreement, and absence
of any conflict might be offered for signature. Necessarily, the identity of the
respondent would be made known at some point in the meeting and an
evaluation made primarily to rule out any conflict of interest.
Preparation of the Selected Overseers and Therapists
Once past these thresholds, an extensive discussion should consider the
time commitments and parameters and the extent of the responsibilities or
duties and the nature of the reports to be made. If there is no obstacle at
this stage, then the nature and requirements of the case at hand would be
described.
Supervisors, therapists and monitors require preparation for the duties they
shall assume for proctoring. Members of the particular disciplinary board and
licensing agency, and selected experienced proctors, could provide this
preparation in a single two-to-three-hour informal group session or fractional
installments.
Matters to be considered in these preparatory meetings include an overview
of the disciplinary process, its link with rehabilitation, consent agreements,
and the role and duties of the proctors. The duty to disclose requested
information relevant to the respondent's professional competence would be
FEDERATION BULLETIN
explained. Of course, a designated proctor must be instructed as to the
confidentiality of the work.
Sexual and other unethical or illegal activities in the course of health care
often result from the practitioner's own stresses and habits, such as during
marital problems or to further his or her own drug abuse. Isolation of solo
practice, especially typical in mental health careers, can be a result of and also
a cause of distress and loss of control. Reviewers and therapists of practitioners
disciplined for substance abuse, controlled substance violations and sexual
misconduct should have special expertise in these areas.
Proctors should understand the distinction between sympathy and empathy
for the respondent, and the proscription of social and sexual involvement.
Other duties and parameters might be discussed, including the proscription
of social and sexual involvement with the respondent and patients. The
candidates will be interested in their immunities. In the absence of an
immunity shield, various legal obligations or civil duties to current and even
future patients or third parties through disclosure or any substandard care by
the respondent, or failure of the latter's compliance, should be covered. Thus,
consideration of reasonable expectations of duties to warn and protect should
also be covered.'o
The manner of billing and remuneration should be considered. The candidate should understand that there is a reasonable expectation that he or she
would see the assignment through to completion. Finally, a signed letter of
agreement should be executed. The letter may contain the above points, which
would make it an informed consent as well.
Isolation ofsolo practice
can be a result of and a
cause of distress and loss of
control
Other Considerations
Matters of prescription and assignment of psychotherapists, and their preparation for these disciplinary objectives, are complex. Inherent in this complexity
is the fact that, by definition, therapy is uniquely personal and private, with
reliance on confidentiality and privilege. A therapist is traditionally an advocate
of the patient, and development of a "therapeutic alliance" is key to working
together toward the cure or objectives. A respondent should be permitted
some leeway to reject for reasonable cause an assigned consultant or therapist.
Since the therapists shall be assigned by the board rather than selected by the
respondent, allowance must be made for the "chemistry" that is necessary for
a therapeutic relationship. The same issue might arise concerning any proctor,
and the problem deserves fair and reasonable consideration and rectification
where indicated. Resistance, however, cannot be broadly tolerated, and the
work must go forward or the respondent is liable to be in breach of the
agreement.
Problems undoubtedly will arise in rural and small communities and in certain
specialties whose members would likely know each other. Also, in many states,
there may be a problem of developing panels of sufficient size so that a
respondent should not be unreasonably inconvenienced in commuting to a
supervisor or therapist. And there may be circumstances where a monitor may
find it necessary to visit the office of the respondent. Such circumstances may
be foreseen at the time that the consent agreement is prepared or signed, and
terms and conditions would take these difficulties into account. Fairness might
Vo181, No 2 1994
A respondent should be allozved some leeway to reject
an assagned consultant or
therapist
87
Control or management of
the process of arranging a
supervisor, monitor or
therapist might be
delegated to professional associations
dictate that candidates for proctoring activities be adequately rotated and lists
revised or replenished so that no panelist is unduly burdened.
It is possible that control or management of the process of arranging a
supervisor, monitor or therapist might be delegated to the relevant professional associations in the state. While the licensing agency should be involved
throughout the rehabilitative and disciplinary process, and take note of any
undue protective or paternalistic interference by colleagues of the respondent,
the licensing agencies should recognize their serious limitations in expertise,
personnel and the funds to acquire them, and, conversely, the availability of
these resources to the professional associations. Medical societies in most states
already have been entrusted to provide or orchestrate rehabilitation and
oversight for impaired physicians. Aelationshhips between the societies and
the licensing agencies often are mutually distrusting.
SEXUAL EXPLOITATION AND THE QUESTION OF RECIDIVISM
In cases of sexual misconduct, health professionals selected to treat or work
with therapists disciplined for sexual misconduct must be screened with care.
Limited experience in the use of direct, "eyeball" observation in supervisory
programs has shown that even this method of practice oversight does not
ensure sufficient patient protection.tl The type of monitoring selected in cases
of respondents disciplined through a consent agreement for this conduct
should be developed with particularity on a case-by-case basis.
The oversight program must preclude the likelihood of repetition of undue
familiarity or other infraction. Following the completion of the rehabilitative
program, a further period of probationary practice may be reasonable, perhaps
with the establishment of practice limitations, all of which would be provided
There is serious question
whether rehabilitation of
health professionals who
have sexually abused
patients is effective
by the consent agreement.
Authors associated with the licensing agency in Ontario and others believe
that recidivism is a frequent problem, and that rehabilitation is still experimental.'Z They ask, "Can a sexually abusive health professional be rehabilitated
under the eye of the licensing agency, or is the outlook too poor for the agency
to assure protection of the public?s13
Discussion of preferences or indications for certain forms of discipline over
others is beyond the scope of this article. 14 There is serious question whether
rehabilitation of health professionals who have sexually abused patients is
effective. Studies of rehabilitation of sex abusers in general show that treated
abusers are less likely to repeat their offenses, but predictive diagnosis of the
potential recidivist is an element defying present knowledge and skills. Because
of these uncertainties, and with some regard for the interests of the respondents, the Ontario study group recommends discontinuance of automatic
lifetime revocation in favor of mandatory five-year revocation followed by
opportunity to reapply.'s
Pope compares sexually exploitative health professionals with judges who
have taken bribes and teachers who have sexually abused their pupils, and
concludes that the licenses of therapists who are guilty of sexual misconduct
should be permanently revoked.16 Despite the perpetrators' remorse and
willing participation in rehabilitation, no state, he asserts, should re-credential
them to return to their occupations.17
88
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It may well be, as the authors of the Ontario Final Report aver, that in the
case of sexual violation or abuse, the rehabilitation programs are still insufficiently developed or refined to ensure complete rehabilitation of the offenders
or prediction of recidivism, and therefore a "zero tolerance" is the only
approach to discipline, and license revocation the only possible sentence.'$
Whether patients have a right to know of their health care professional's prior
discipline is a matter of dispute. Adverse actions recorded in the National
Practitioner Data Bank still are not made available to members of the public,
suggesting that the Department of Health and Human Services does not
recognize a patient's need to know.
It is arguable whether knowledge of history of prior discipline, which is
not necessarily an indicator of potential risk, is necessary for a prospective
patient before entrusting medical care to a given practitioner. It is also
uncertain whether the history of past discipline translates into a foreseeable
risk for the future. But, in the 1980 case of fteibl P. Huges, the Supreme
Court of Canada held that an informed consent is warranted when a risk is
sufficiently serious, even if not very likely.'9 Of course, a patient is free to
make inquiry of the licensing agency for information that is public or of
the practitioner directly. The authors suggest that all practitioners be
required to display prominently in waiting rooms a poster that states
patient-therapist sex is never acceptable.
LVhether patients have a
ri8ht to know of their
health care professional's
prior discipline is a matter
of dispute
TERMINATION OF DISCIPLINARY PERIQD
The work burden of the designated overseers and therapists during the last
several months of the period of time required by the terms of the consent
agreement or disciplinary adjudication is heightened by duties associated with
case closure. A final appraisal of the respondent's qualities and extent of
compliance and rehabilitation must be made and shared with the licensing
authority. Of course, the final reports must include a recommendation
whether to fully reinstate the respondent and the reasons for the recommendation.
The licensing agency should be provided some characterization of the
respondent's process of change. This should include his or her repudiation of
the type of conduct that brought the disciplinary order, degree of insight
developed, and acceptance of the relevant standard of care, including the
prevailing code of ethics of the particular health care profession.
The statement of the monitor, supervisor and/or therapist should include
an appraisal of the respondent's professional skills and competence, with an
eye toward evaluation for impairment, character disorder or unwillingness or
inability to at least resist exploitative impulses regarding patients. In a final
diagnostic summary of the mental or physical status of the respondent, a
monitor or therapist might reappraise whether the original offending conduct
was the product of an impairment, an educational factor or purely the
expression of willfulness, and whether such factor is no longer present.
It is generally appropriate that each reviewer making a disclosure or report
to the licensing agency discuss the contents with the respondent. This is
equally true for disclosures made during the course of treatment or oversight.
It is not unreasonable to obtain signed releases from the respondent for each
Vo181, No 2 1994
It isgenereslly approprac^te
that each reviewer making
a disclosure or report to the
licensing agency discuss the
contents with the respondent
89
Recalcitrance or lack of
reasonable pragress zvoasld
result in discontinuance
and suspension
Panels of volasnteers should
be developed, with selection
on a case-by-case basis
90
disclosure, even though the original agreement called for such reports.
Recalcitrance or lack of reasonable progress in treatment or rehabilitative
and oversight efforts would, upon consensus of therapists and proctors that
continuation under the consent agreement is impossible or unproductive,
result in discontinuance and suspension. Usually, a consent agreement
contains such a provision. If the disclosure is made in the absence of such
provision, the broad duties of the therapist or proctor granted by the
adjudicative order could be construed to require it in the interest of the
public.
CDNFIDENTIALZTY OF RECORDS AND REPORTS
All records created during the course of the treatment, supervision or
monitoring of a complying respondent should be given full confidentiality by
the licensing agency. A guarantee of confidentiality should be made in writing
pursuant to agency regulations, and also in the consent agreement or other
communication with the respondent. Under impaired physician statutes and
the Americans with Disabilities Act,29 treatment of impaired physicians, at
least, is confi.dential.2l
The identity of all patients whose care by a respondent is monitored or
supervised should be similarly protected, and their names shall not be given
by a party making a disclosure. Proctors do become privy to the identities and
records of such patients. It is essential that these records be protected by the
agency, out of concern for those patients' right to confidentiality and privacy,
but also for the success of the whole treatment program. Respondents must
be able to rely on this protection if there is to be any hope of preparing them
to regain full licensure and to resume practice.
CONCLUSION
Lice,nsing agencies have broad discretion in disciplining and permitting
rehabilitation of certain errant or impaired practitioners. Once the determination is made that a respondent has potential for a favorable response to
re-educative and rehabilitative efforts, they should be implemented in a
methodical, well-planned manner. Too often, the probationary program
overseeing the health care professional's clinical performance or rehabilitation
is flawed with desultory selection of overseers and therapists, failing to detect
conflicts of interest or to develop an effective formal protocol. Such circumstances undermine the disciplinary system and sabotage the objective of
providing correction of offenders and protection of the public.
Instead of a cavalier system of assigning therapists and overseers proposed
by respondents, panels of volunteers should be developed, with selection on
a case-by-case basis upon careful screening. These professionals and employers
who are to provide supervisory reports should be specially prepared for their
role. They should understand expected duties and obligations as well as legal
immunities. They must be given the appropriate means to undertake careful
review in light of a particular respondent's work, and to make protected
statements, especially when recidivism is suspected or established.
An effective disciplinary program that is created and administered fairly and
reasonably would provide for both the public and the professions a respected
FEDERATION BULLETIN
service deserving of public support. Should the disciplinary process not meet
that standard, a disaffected public, already concerned and outspoken about
dangerous health care professionals, likely would influence legislatures to
impose more stringent limits upon licensing agencies and the disciplinary
process.
To carry out effective programs, certain regulatory guidelines and procedural
structures are needed. The authors offer model regulations that provide for
authority, standards, and consistency, while ensuring fairness for the respondent and protection for the public. These model regulations follow in the
Appendix to this article.
Note
This article is an adaptation of one by the same authors published elsewhere: "Mandated Supervision,
Monitoring and Therapy of Disciplined Health Professionals: Implementadon and Model Regulations," 14
Journal of Legal Medicine, 565 (1993).
References
1.
2.
For convenience, these categories of overseers shall be grouped together as "proctors."
42 U.S.C.A. 11111 etseq. (1991).
3,
e.g., Connecticut Gen. Statutes 20-I3c, d, and e, and 20-13b (1991) authorize implementing
regulations upon advice and assistance of the board of examiners.
4.
See Gonsiorek, Working Therapeutically with Therapists Who Have Become Sexually Involved with
Their Clients, in Psychotber,¢pists' Sexual Involvexunt With Clienrx Inseraiem and Prevention 421 (G.
Schocner, J. Milgrom, J. Gonsiorek, E. Luepker, & B. Conroe eds. 1989) at 423.
Some respondent psychotherapists argue for matching a supervisor who is of the same theoretical
persuasion. This, the authors believe, is inappropriate for many reasons; basically, the issues for
oversight are narrow and clear and transcend any such theoretical structure, and relate to the standard
of care that any licensee would or should understand.
See Gonsiorek, supra note 4, at 423.
See generally Waizer, R., Impaired Physiaans: An Overview and Update of the Legal Issues, 11 J. Legal
Med. 131 (I996).
See Winek & Murphy, The Rate and Kinetic Order of Ethanol Elimination, 25 Forensic 5ci. Int'l 159
(1984); Jones, Excretion of Alcohol in Urine and Diuresis in Healthy Men in Relation to Their Age,
the Dose Administered and the Time After Drinking, 45 Forensic $ci. Int'l217 (1990) .
5.
6.
7.
8.
9.
Pope, 1CS., Unanswered Questions about Rehabilitating Therapist-Patient Sex OfFenders, 18 Newsletter
5-7, Am. Psychological Assoc. (1991).
10. Gartrell, N., Herman, J., Olarte, S., Feldstein, M., & Lacalio, R., Reporting Practices of Psychiatrists
Who Know of Sexual Misconduct by Colleagues, 57 Am. J. Orthopsychiauy, 287-295 (1987); same
authors, Prevalence of Psychiatrist-Patient Sexual Contact, in 5exual F.,xploitation In Professional
RelationsFi:ps, 3-I4, Am. Psychiatric Press {1989).
11. The College of PFrysicians and Surgeons of Ontario, Task ,Forca on 5exysal A6rase of Patients, The Final
Report 145 { 1991 }.
12. See Pope, supra note 9. Pope suggests that those patients in care of a disciplined respondent should
be warned of the risk of expioit'ation and of the fact that they are in an experimental program. However,
the instant authors submit that such disclosure to patients would essentially foreclose that practitioner
from continuing in practice. It can be argued the proctoring of other private conditions of health or
behavior should also be disclosed to physicians' padents, The sarne issues concerning relevancy and
privacy care are raised in regard to health care workers who test HN positive. If we have confidence
in programs, such public disclosure is unnecessary and self-defeating.
13. The points to be considered involve the potential for rehabilitation of the professional balanced
against the risk ofhis doing fluYher harm, with due consideration for the quality ofthe existing practice
oversight program. See generally, The Final Report, supra note 11.
14. The points to be considered involve the potential for rehabilitation of the professional balanced
against the risk of his doing further harm, with due consideration for the quality of the existing practice
oversight program. The Fsnal Report, suprs note 11; See Gonsiorek, supra note 4, at 447-49 Gartrell,
Herman, Olarte, Feldstein, & Localio, Prevalence of Psychiatrisr-Parient Sexual Contact, in .Stxusl
Exploitation in Profession ad Relationships 3-14 (1989).
15. See The Final Report, rrspra note 1 I at 25-26. On the other hand, impaired physicians, and probably
related professionals, have a higher "cure" rate than other more general populations. See Walzer,
srspra note 7.
Vol 81, No 2 1994
91
16. Pope, supru note 9.
17. 76dd. Pope suggests that those patients in care of a disciplined respondent should be warned of the
risk of exploitation and of the Fact that they are in an experimental program. However, the instant authors
submit that such disclosure to patients would essentially foredose that practitioner from continuing in
practice. It can be argued the proctoring of other private conditions of health or behavior should also be
disclosed to physicians' patients. The same issues concerning relevancy and privacy care are raised in regard
to health care workers who test HIV positive. If we have conFsdence in programs, such public disclosure is
unnecessary and self-defeating.
18. The Final Report, supra note 11 at 104.
19. 2 S.C.R. 880 (Sup. Ct. Canada 1980}.
20. 42 U.S.C.A. 12101 (1993).
21. See Walzer, supra note 7, at 165.
92
FEDERATION BULLETIN
APPENDIX
MODEL REGT]LATIONS: PROCT0AING DISCIPLINED
HEALTH CARE PROFESSIONALS
Statement of 1'urpose: To provide for adequate,
competent, and responsible oversight of a health care
professionai following investigation and appropriate
disciplinary procedures by the state licensing agency
and the relevant disciplinary board, including reliable
implementation of consent agreements.
The regulations of the state licensing agency are
amended by adding sections 1 through 8 as follows:
1. Definitions. As used in section I through 8:
(a) "consent agreement" means an accord
reached between the department and a licensed
health care professional whereby certain conditions
are placed on that health tare professional's practice
in lieu of proceeding to judgment in a disciplinary
hearing;
(b) "consultant" means a person, licensed under
the general statutes, who provides professional
guidance regarding treatment situations to either a
colleague or the state licensing agency;
(c) "department" means the state licensing agencv;
(d) "monitor" means a person designated by the
department to review, analyze, and consider both the
case inventory and clinical practice, treatment,
caseload, professional conduct, and relevant activities
of a licensed health care professional who has entered
into a consent agreement with the department;
(e) "proctor" means any person designated by the
department to oversee the professional practice of
health care by a health care professional or pursuant to
a consent agreement between the department and a
respondent health care professional ot to provide physicaI or mental health care to said health care professional;
{f? "respondent" means a licensed health care
professional whose practice is being supervised pursuant to either a con sent agreement or a disciplinary
board's decision reached after a hearing;
(g) "supervisor" means a person designated by
the department to teach and train a respondent
through observation and discussion of practice
method, theory, style, or techniques;
(h) "supervision" means a process of teaching
and training a health care professional through observation and discussion of practice method, theory,
sryle, or techniques;
(i )"therapist" means a person, licensed under the
general statutes, designated by the department to
engage in a professional patient-therapist relationship
with a respondent for advisory, corrective, or curative
treatment;
(j) "therapy" means a professional patienttherapist relationship engaged for the purpose of
advisory, corrective, or curative treatment;
(k) "treatment standards" means the standards of
practice that are commonly accepted within any particular health care profession.
2. Panel.
(a) Purpose. The department shall establish
panels of prescrecncd health care professionals who
Vol 81, No 2 1994
will serve on a rotating basis as proctors of respondents.
(b) IMembership qualiFications and selection.
The department shall periodicaily invite individuals
to serve on such panels based upon the following
criteria:
(1) recommendation from a state or national
professional society in the relevant field of practice;
(2) volunteers who meet the following criteria:
(i) a state license in the n:1cvatttprofession;
(ii) current, full-time practice in the
relevant profession;
(iii ) minimum 10 years of experience in
the relevant practice area;
(iv) no disciplinarv acrion taken against
such person in this or any other state; and
(v) for supervisors, at least tive years'
teaching experience in a]CAHO accredited teaching
hospitai or a medical or graduate college or university
recognized by a regional accreditation organization.
(c) There shall be a separate panel for each
licensed profession, and sub-paneis where specialties
require; a member of one panel also may be named
to other panels.
(d) Selection for a particular case. The opportunity to work on a particular case will be offered to
members of the panel on a rotating basis, and after
the department has evaluated the candidate with
regard to:
(1) specialty;
(2) location;
{3} past and current proctoring activities;
(4) objectir-ity (whether and to what extent
the panelist has any personal, professional, or competitive relationship with the respondent or other real
or apparent conflict of interest);
( 5) extent of the panelist's knowledge, expertise, and qualifications in the particular type of
issue for which the respondent is being discipIined;
(6) the panelist's personal and professional
views on such conduct and wiilingness or availability
to serve in the instant case.
(e) Selection process. After narrowing the list of
panelists, in accordance with subsection (d) of this
section, the department shall select an individual
through the following process.
(1) A depattttent attorney, who functions as
staff to the appropriate disciplinary board, shall interview the next panelist on the rotation list. If such
attorney finds this panelist acceptable under the
criteria set forth in subsection (d), then the department attorney may recommend the panelist to the
disciplinary board.
(2) If the department attorney finds the
panelist unacceptable for a particular case, or if the
panelist chooses for any reason not to be considered
for a particular case, then the staff attorney shall go
to the next name on the rotational list.
(3) The appropriate disciplinary board shall
have the final authority over selection of the panelist.
The disciplinary board may refuse to accept a recommended panelist for good cause shown. Each board
93
shall decide for itself how much of a majority is
(d) the scope of confidentiality of records;
necessary in deciding on a panelist. In the event of
(e) any legal protection available to panelists;
{f) the manner of dealing with lack of progress
refusal of a recommended panelist, the department
shall proceed to the next name on the rotational list. toward objectives of the consent agreement;
{f} Rotational list. The department shall main(g) the existence of any duty to warn, and aspects
tain a list of panelists fior each licensed profession. of any health care professional's ethical obligation to
The order of the list will be determined by the date inform a patient about that health care professional's
on which each name is entered after investigation of compliance with such duty;
the credentials of the proposed panelist by the
department - the earliest member first and the most
recent last. After a panelist serves on a case, or turns
down the request to serve on a case, that person's
name shall rotate to the bottom of the list. In addition to name, home address, and business address,
the list shall indicate whether the person is qualified
as a monitor, supervisor, therapist, consultant, or as
more than one of the foregoing.
(g) In the event of withdrawal, incapacitation, or
death of a designated proctor, supervisor, monitor,
or therapist during the term of an assignment under
a discipiinary action or consent order, the process
(h) review of the prevailing ethical code of the
appropriate national or state professional association.
5. Respondent.
(a) The respondent shall have the right to
register complaints with the disciplinary board about
the assigned panelist. The disciplinary board or its
staff may investigate the particulars of the complaint,
hold necessary compliance meetings and, if it deems
it advantageous to the disciplinary process, advise the
parties and resolve or ameliorate the conflict, or
remove the panelist from the case and choose
another. If the disciplinary board or its staff deter-
shall be repeated immediately to find and assign a
replacement.
mines that changing the assigned panelist may not
work to the advantage of the disciplinary process,
then it may order the respondent to continue with
3. Role of Proctor.
the assigned panelist.
(a) Before beginning an oversight assignment of
(b) The respondent must, in the determination
proctoring or treating a respondent, the panelist shall of the disciplinary board or the department,
sign a statement provided by the licensing agency reasonably cooperate with the assigned panelist. If
setting forth the disciplinary objectives, that the the disciplinary board or the departmet determines
panelist agrees with them, a brief statement of initial that the respondent is not reasonably cooperating,
plan of action, and the reporting or documentation then the disciplinary board may hold a compliance
meeting. If satisfactory resolution is not reached at
requirements expected of the proctor.
(b) Reporting. For each disciplinary action that this meeting, then the department may conduct a
a disciplinary board institutes, the disciplinary board hearing at which the respondent has the right to
shall prescribe a reporting schedule for the duration appear, be represented by counsel, present evidence,
and question witnesses on the issue of whether the
of the action.
{I} Such reporting to the department may respondent shall be subject to fiu-ther disciplinary
include regularly scheduled written reports, action.
telephone reports, and/or in-person conferences
with department staff. However, written reports shall 6. Termination. Proctoring, supervision, monitorbe filed no less often than every eight weeks, regard- ing, consulting, or therapy, as ordered, may end only
less of reporting methods used in the interim, and on one of the following conditions.
(a) Fulfillment of all the terms of the consent
shall contain the information required by the disciplinary board and expressed in the signed statement agreement or other administrative ruling.
(b) Recommendation by the assigned panelist
as described above in section 3(a).
(2) Topics covered in the report shall be
determined by the consent agreement and/or the
statement described in section 3(a). The panelist may
add other information considered relevant.
(3) The panelist's compliance with reporting requirements shall influence that person's continued retention for the instant assignment and/or
membership on the panel.
4. Training. To remain current on the rotational
list of panelists, an individual must document to the
department [_] hours of training and/or relevant
continuing medical or other professional (as appropriate) education units initially and every two
years thereatFter. Training, to be provided by the
disciplinary board, shall include but not necessarily
be limited to:
(a) the nature of consent agreements, and
relevant statutes;
(b) the objectives of the department in requiring
proctoring, supervision, monitoring, or therapy;
(c) any duty to disclose information to the
department;
94
that the process has reached the point of maximum
benefit, review and approval of this recommendation
by the disciplinary board, and a compliance meeting
between the disciplinary board (or its representatives,
which may include the staff attorney), the respondent, and the assigned paneiist. Thereafter, the
decision by the disciplinary board shall be rendered
with reasonable promptness not to exceed 45 days.
{c) Early termination also may be considered by
the disciplinary board on the recommendation ofthe
department or on the disciplinary board's initiative,
if the objectives of the consent agreement have been
substantially met.
7. Proctoring Plan. The consent agreement must
include a detaiied plan that must be signed not only
by the department and the respondent, but also by
the reviewer(s) who is(are) assigned to the case. The
plan shall include but not necessarily be limited to:
(a) specific measurable objectives, stated in terms
of particular behavior of the respondent to be affected;
(b) specific tasks expected of the proctor;
FEDERATION EULLET'IN
(c) a schedule for reporting to the depafunent;
(d) a schedule of the necessarv content of such
reports;
board may order, following the termination of the
hearing but prior to issuance of the final discipflnary
ruling, or prior to the formulation of the consent
agreement at any stage of the investigative or ad-
(e) certain standard provisions, including the fallowing:
judicative process, an evaluation of the respondent's
( 1) all reviewers and therapists are immune
from legal liability if acting in good faith within the
scope of the consent agreement and the,proctoring
plan. This protection extends to ordinary negligence,
but does not cover gross, willfui, and wanton
negligence or criminal conduct;
(2) any designated proctor, supervisor,
monitor, consultant, or therapist may, at any time
during the term of the ordered oversight, recommend
to the disciplinary board or the department that an
overseer of any of the other categories be assigned to
the case, either in addition to or instead of the requesting individual. Any such modification requires
approval of the disciplinary board and may require,
at the request of the respondent, renegotiation of the
consent agreement;
( 3) the respondent is responsible for arranging for and paying the reasonable and customary fee
of the proctor or therapist. The disciplinary board
shall not become involved in the fee issue unless
it obtains evidence that the fee agreement was
not an arm's length transaction, in which case the
disciplinary board may assign a different proctor;
(4) a disciplinary board may remove a person
from the panel for malfeasance or non-compliance
with any relevant regulatory or statutory requirement,
without a hearing, and may investigate and act upon
evidence of misconduct;
{5} the proctor or therapist may be a person
who is appointed temporarily by the disciplinary
board, even if the individual is not on the panel,
because of extraordinary qualifications suited to the
case in question that are not met by anyone on the
existing panel;
{6} therapy reports shall be kept confidential
by the department unless the department finds that
they are false, fraudulent, deceptive, incompetent, or
that their reliability is otherwise compromised or if
they are challenged by the respondent or otherwise
brought into a public ]tearing;
(7) reports and records concerning or
created for the proctoring process shall have the same
degree of protection as the consent agreement.
8. Evaluation of Respondent's Clinical Practice.
(a) If deemed necessary, then the disciplinary
Vol 81, No 2 1994
clinical practice and level of skills. The person conducting this evaluation shall be selected by the
department with the approval of the disciplinary
board. Such evaluator shall be a licensed health care
professional in the same field of practice as the
respondent, or a consultant panelist, or a temporary
proctor appointed in accordance with sub-section
7(e)(5), or a mental health professional, or a peer
review organization. This evaluation may indude
other peer review records such as may be available
from professional societies, hospitals, and a current
(within 30 days of the order for evaluation} search of
the National Practitioner Data Bank, and the Board
Action Data Bank of the Federation of State Medical
Boards.
(b) An evaluation of similar nature and scope
shall be rendered eight weeks prior to termination of
the ordered period of discipline, or sooner, if the
assigned proctor(s) recommend(s) and the disciplinary board approves early termination. This evaluation shall be performed by the same individual, if
available, who performed the initial evaluation in
accordance with subsection (a) of this section, or by
a person with like (as determined by the department)
professional background and credentials. Such
evaluator may be, but need not be, drawn from the
consultant or other panels.
(c) These evaluations shall be performed by a
person who has no personal or professional relationship to or competition with the respondent, and no
real or apparent conflict of interest. The department,
in its discretion, shall determine an evaluator's
suitability under these criteria. The evaluator shall
reside and practice in a different county from that in
which the respondent either resides or practices, but
may be a member of the same professional organization(s) as the respondent. Any objections the respondent may have regarding the choice of evaiuator must
be made to the disciplinary board in writing and in a
timely manner. The disciplinary board shall fairly and
reasonably consider such objections on the record at
its next regularly scheduled meeting or one scheduled
specifically for this purpose. However, the decision of
the disciplinary board in choosing an evaluator shall
be final.
95