What to do when the complaint is against you

Psychologists, social workers, nurses and substance abuse counselors are governed by licensure boards that certify them to practice and can charge them with professional misconduct. Although misconduct charges are infrequent, they do happen and being the subject of a complaint or legal charge can be a devastating experience. Most professionals are unprepared for the emotional and financial demands of a formal complaint. No matter how swift the mechanism, the process always seems to take too long.

Be Prepared – Basic Practices for All Professionals

Professionals have a responsibility to keep themselves informed on current professional standards, ethics and legal issues governing their practice area. Waiting until you encounter a problem will be too late. Your professional liability insurance is extremely important as you cannot buy retroactive coverage and defending yourself can be very expensive. Upon entering practice you should do all of the following:

• Join your professional association. Your professional association may have legal consultants to assist you if problems arise.
• Keep yourself current on changes in laws governing confidentiality, mandated reporting and client boundaries.
• Purchase the highest level of insurance coverage available through your profession’s liability carrier. Even though you may be covered by your employer’s malpractice insurance, if you ever face a complaint you’ll need an attorney to defend your interests.

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Types of Trouble

Problems come in many sizes. Some can be handled informally, some require mediation and others call for expert assistance.

Informal Complaint or Grievance
Do your best to respond immediately to letters of complaint or grievances presented by clients. Remember the customer is always right. If a client is dissatisfied and wants his or her money back, think carefully before you say no. A formal complaint can be costly, time consuming and emotionally grueling.

Formal Complaint to Administration
If you work for a clinic, hospital, agency or other institution, the agency itself may receive a complaint.

• Be certain the pertinent records are available and securely stored so no relevant information will be unavailable.
• Examine them to make sure they are complete.
• If there are gaps, you can always create additional records with more detail as long as you date them correctly and indicate why they were created.

Call from an Investigator Representing a Board or the Attorney General’s Office

• Do not discuss a client’s case unless you have a signed release of information allowing you to do so.
• If you find yourself feeling defensive in response to the investigator’s questions, make reference to your feelings so that the official record will contain an explanation.

Subpoena or Subpoena Duces Tecum

• Determine whether their request is a legitimate one. That is, does it meet the test of a reasonable request by the Board to assist its investigation?
• If data requested was collected in connection with a substance abuse evaluation or treatment program, it is protected by federal confidentiality regulations and cannot be released without a court order.
• To determine whether to release information concerning a client’s records ask yourself:
• Does the client consent? If so, you can safely release the information.
• Does the client refuse to consent? If so, he or she has the right to have an attorney move to quash or withdraw the subpoena in this situation.
• Is the nature of the request such that you can offer to list the contents of the files with identifying data edited or redacted?

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Be Cautious and Seek Counsel

When we believe we’ve handled a case poorly or when the outcome has been unfortunate, we often want to be proactive and to make a report to the board. However, it's important to seek consultation, both legal and professional, before embarking on a response to a letter of complaint.

• When consulting colleagues, remember they may be under an obligation to report the conversation if they are licensed. In Minnesota many licensed professionals are obligated to report professional misconduct discussed in therapy.
• If you consult an attorney, be clear you are obtaining legal consultation so that all the information is covered by attorney-client privilege.

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Working With an Attorney

Most mental health professionals are unfamiliar with the legal arena and find it frightening. Educate yourself and be prepared to work with your attorney.

• Don’t hesitate to ask your attorney questions about the law, the rules of the court, the setting and the proceedings themselves.
• Ask your attorney how and whether you’ll be able to communicate during the proceedings.
• Consider visiting the hearing room or courtroom beforehand to familiarize yourself with the seating arrangements and setting.
• Talk to other people who’ve been through the same process.
• Do your homework.
• Be sure you are knowledgeable about the issues. Assist your attorney by doing research.
• Help locate a qualified expert witness.
• Doing your own research will:
• Help you handle anxiety and feelings of helplessness that are endemic to the situation
• Reduce legal costs
• Provide a better defense
• Reread the licensure law, the rules of the board and your profession’s code of ethics. Get a copy of the standard texts in the field. For example the American Psychological Association has a series of texts on the law and mental health for many states. Check the APA’s website http://www.apa.org/  Kenneth Pope has a website with materials about professional standards and regulation. It may be found at www.kspope.com.

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Isolation and Stress

"My first feelings after being charged with medical malpractice were of being utterly alone. Suddenly I felt isolated from my colleagues and patients. Since then I have learned…that this feeling of aloneness is not at all unusual, that almost every physician accused of being negligent has a similar reaction." Sara Charles, M.D. 

• Attorneys often instruct their clients to speak to no one about the case.
• Colleagues tend to avoid someone who is up on charges.
• The colleagues may themselves be under investigation.
• There is the risk of major depression or psychological breakdown.
• Attorneys sometimes discourage obtaining professional help fearing that their client will make disclosures in therapy that will put them at risk. This may be the case, but the risk of depression, even suicide, is so great that you may find yourself in need of help.
• Be aware that there is a risk to obtaining professional help. Records of your treatment may be subject to subpoena.
• Financial burdens in malpractice cases can be great. For example, social workers charged with professional misconduct often incur fines and legal fees in excess of $40,000.

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Licensure Cases – forms of legal encounters

Meeting with an investigator
When meeting with an investigator be sure that you are prepared, that you have all the necessary files and that you’ve had time to think about the case. Consider having your attorney present.

Board committee conference
This is a meeting with a representative of the attorney general’s office and several members of the board. It is critical to have all materials with you and to be fully prepared. You may need to explain the actions you took so if you need to refresh your memory, do so before the meeting. If you’re nervous, prepare a summary of the points you want to make.

Discovery
You may be asked to submit or produce various items.

Deposition
You should have a defense attorney present.

Settlement meeting
This is where your attorney, in consultation with you, attempts to work out a stipulation with the board.

Hearing before an administrative law judge
This is less formal than a jury trial. Although the rules of evidence are generally followed, the process is different from criminal, civil or family law trials. The board is not bound by the decisions of the hearing.

Be prepared

• Bring all records pertaining to the case to all meetings conferences and hearings.
• Focus on answering the questions asked and avoid offering additional information or observations.
• Re-read the relevant practice acts and rules before the meeting.
• Be aware that boards can expand their inquiries to issues other than those raised. Review the practice acts and rules in case unexpected questions arise.

This article is not offered as legal advice and should not be construed as legal advice. If a complaint is filed against you, you should seek competent legal assistance.

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• Resources
• When the complaint is
    against you
• Be Prepared – Basic Practices
    for All Professionals
• Types of Trouble
• Be Cautious and Seek Counsel
• Working With an Attorney
• Isolation and Stress
• Licensure Cases – forms of
    legal encounters

• Consulting and Training
• Publications