STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) CLINICAL SOCIAL WORK, MARRIAGE AND ) FAMILY THERAPY, AND MENTAL HEALTH ) COUNSELING, )
)
Petitioner, )
) Case No. 01-0467PL
vs. )
)
MELVIN WILLIAM JAMES, )
)
Respondent. )
___________________________________)
RECOMMENDED ORDER
A hearing was held in this case in Tampa, Florida, on March 12 and 13, 2001, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Deborah B. Loucks, Esquire
Agency for Health Care Administration
2727 Mahan Drive
Post Office Box 14229 Mail Stop 39
Tallahassee, Florida 32317-4229
For Respondent: A. S. Weekly, Jr., M.D., Esquire
Holland and Knight, LLP
400 North Ashley Drive Suite 2300
Post Office Box 1288 Tampa, Florida 33601-1288
STATEMENT OF THE ISSUE
The issue for consideration in this hearing is whether Respondent's License as a Marriage and Family Therapist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
PRELIMINARY MATTERS
By Administrative Complaint dated October 18, 1999, the Department of Health (Department), charged Respondent, Melvin W. James, with committing an act upon a patient or client which constituted sexual battery or sexual abuse, in violation of Section 491.009(2)(k), Florida Statutes (Count
One), and in so doing, failed to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which he was not qualified by training or experience, in violation of Section 491.009(2)(s), Florida Statutes (Count Two). Respondent thereafter denied committing any such act against a client or patient and demanded a formal hearing, and this hearing ensued.
At the hearing, the Department presented the testimony of
P. S., the patient involved; R. S., her husband; and Deborah Irene Frank, a licensed Advanced Registered Nurse Practitioner and a licensed marriage and family therapist in Florida.
Dr. Frank holds a Doctorate in Marriage and Family Therapy and
teaches family nursing and undergraduate courses in psychology and mental health. The Department also introduced Petitioner's Exhibits 1 through 4.
Respondent testified in his own behalf and presented the testimony of the Reverend Thomas Scott, Pastor of the 34th Street Church of God in Tampa and a Hillsborough County Commissioner; Dr. Marian Sue Street, an expert in the field of marriage and family therapy counseling and mental health counseling; Dr. John E. Mundorff, a certified sex therapist; Martha Jones, a senior social worker with Hillsborough County; and Dr. Sandra G. Logan, a clinical psychologist. Respondent also introduced Respondent's Exhibits A through N.
A Transcript of the proceedings was filed March 26, 2001.
Subsequent to the receipt thereof, counsel for both parties submitted matters in writing which were carefully considered in the preparation of this Recommended Order.
FINDINGS OF FACT
At all times pertinent to the issues herein, the Petitioner, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Board), was the state agency responsible for the licensing of Marriage and Family Therapists and the regulation of that profession in Florida. Respondent was licensed by the Board as a Marriage and Family Therapist in Florida holding license number MT0001128.
P. S., a 56-year-old married, material control associate for Verizon, was introduced to the Respondent at the 34th Street Church of God, her church, by the Pastor, Reverend Scott, in the early 1990's. She began to see the Respondent professionally in individual sessions at least once a week at that time because her psychiatrist had recommended she see a marriage and family therapist after she had been hospitalized for mental health problems approximately five times.
Before she began her sessions with the Respondent,
P. S. had never been in individual counseling except with her psychiatrist for testing and medications. Her psychiatrist had diagnosed her with depression, as did the Respondent, and she is currently in therapy seeing a therapist every two months or so. This therapist has also diagnosed her as suffering from depression. He has also diagnosed sexual dysfunction.
While she was in counseling with the Respondent,
P. S. would also periodically see her psychiatrist who had prescribed Prosac, Tofonel, Zanax, and other medications for her. She remained in counseling with the Respondent for at least four years, and during that period, her medications were mixed. Old ones were discontinued and restarted, and new ones were started and discontinued. She remembers that she was on
Prosac, Tofonel, and Elavil prior to commencing sessions with the Respondent. She is not currently on any medications.
The issues P. S. discussed with Respondent primarily dealt with her depression and with family problems. She told Respondent of her prior hospitalizations and believes she gave him her medical records, but cannot be sure whether she told him of the diagnoses. She told him of her abuse as a child and he told her that was a part of her problem.
Respondent suggested cognitive therapy to her, which he described as changing how she saw things. He incorporated relaxation therapy into her plan of treatment, showing her techniques to achieve this. When she was in Respondent's office she would sit either on the sofa or a bed lounger, and he would sit at his desk, rolling over to the bed lounger on which she was reclined on his wheeled chair from time to time. At no time would she ever lie down on the sofa. As P. S. recalls, all counseling sessions, except for a few which took place when she was hospitalized, were held in his office in Temple Terrace.
P. S. contends Respondent's relaxation techniques included her relaxing her lips and massage during which he touched her face, her breasts, her feet, her legs, and her vaginal area. Sometimes she was clothed, she relates, and sometime she was not fully clothed. When she was not fully
clothed, she says, it was mostly her top that was removed, but sometimes it was her bottom. She claims, as well, that on several occasions, no more than two or three, she was fully unclothed. P. S. also contends Respondent had told her she was ashamed of her body and encouraged her to take off her clothes to "integrate" -- get in touch with her feelings and her body.
P. S. also admits that at times she hugged Respondent and touched his penis. She is unable to remember how this came about, but she thinks he asked her to do this. As she recalls, he said she should not be ashamed of her body. During the sessions she had with Respondent, P. S. discussed her relationship with her husband and with a friend she had had prior to marriage. She told him of comments men had made to her -- compliments which she did not know how to accept. She also spoke with him about being abused when she was a child and her relationships with siblings -- one sister in particular.
Most of the sessions P. S. had with Respondent were one-on-one. At some however, she was accompanied by her sister, and on two occasions, her husband came to discuss with Respondent his therapy methods. On those occasions, Respondent denied any wrong doing.
When Respondent would touch her, P. S. was usually lying on the bed lounger, though he also did so, she claims, at times when she was standing. If she was not comfortable with his touching of her breasts or other body parts, he would merely hug her. She claims, as well, that he would have her touch herself on her lips, her breast, and her vaginal area. She would do this both in his office and when at home alone. She contends this made her uncomfortable, but he explained to her it was a part of her therapy -- to help her get in touch with her body. P. S. admits, however, that she engaged in sessions of mutual masturbation with Respondent's sister-in- law at home on occasions.
P. S. also went to support groups, one of which was an incest support group. In this regard, she would discuss her feelings about her husband with Respondent and brought up comments people would make about her. She discussed her counseling with Respondent with the support group and with other patients and therapists, asking about the method of therapy he was using and whether it was correct or not. When Respondent found out about this he dismissed her as a patient twice, taking her back each time. Though she did not go into gross detail with the others with whom she discussed Respondent's therapy, she concluded most felt his actions were
inappropriate, and one therapist threatened to report Respondent if his name were disclosed.
According to P. S., Respondent's touching of her began shortly after she started her sessions with him, and she was uncomfortable with them. Though his hugs initially were around the shoulder, she claims they became more intense with full body contact. The massages started about six months after she began the sessions after she called him to tell him she was uncomfortable. When she did this, he would stop for a while, but she asserts, the touching would start up again.
P. S. indicates she had mixed feelings about Respondent. She liked him at times and spoke freely with him. Those positive feelings had a romantic tone to them, and when she told him about it, he told her it was "transference of feelings." Though, she claims, the touching made her uncomfortable and she would, at times, see other therapists, she felt guilty about leaving Respondent's care. She contends that when she discussed leaving he would express feelings of rejection and said he felt he had helped her. His sister-in- law also made her feel guilty when she discussed leaving Respondent's care.
In addition to office visits, P. S. also saw Respondent at church, at his home, and at the homes of his family members with whom she was friendly, and whenever he
would introduce her to other people, he did not refer to her as a patient. At one point in the relationship, she gave him photographs of herself, though she claims these were to show "before" and "after" depictions and not for romantic keepsakes.
P. S. was active in her church activities all through this period and so was the Respondent. She was mostly involved in youth activities and in the women's ministry. Respondent was a minister at the church but not the main pastor. Though he preached periodically, he mostly counseled.
During the period she was in counseling with Respondent, P. S. was hospitalized several times. One occasion was based on her taking an overdose of a drug; one was because of her strained relationship with her sister; and others when she could see she needed more intense help than Respondent could provide. The last time she was hospitalized the facility was out of state, and when she discussed this with the Respondent, he was supportive of her efforts.
Because she believed that Respondent had been instrumental in her being relieved as head of her church organization in favor of his sister-in-law, P. S. stopped counseling with him in early 1995. At that time she sent him several letters, some of which were unsigned. One letter dealt with her belief Respondent had shared the details of his
counseling of her with Pastor Scott; one dealt with her relationship with his sister-in-law; one accused him of recommending her dismissal from the women's ministry position she held; and at least one letter dealt with his therapy, though not in detail.
In February 1995, P. S. wrote another letter to Respondent, claiming she was capable of doing her church-work tasks; discussing what another patient had told her of that individual's therapy; and relating her feelings regarding his therapy and what she considered his sexual abuse of her while in therapy.
P. S. also discussed her counseling sessions with Respondent in detail with Pastor Scott. She also wrote him a letter explaining the therapy, and upon receipt of that letter, Pastor Scott called her and told her to do what she had to do about it.
P. S. has not been hospitalized since 1994, and she is not currently on any medications. She is currently, and since 1995, has been under treatment with Dr. Logan, who is seeing her for monthly sessions. She started with Dr. Logan while still seeing Respondent and initially asked her about Respondent's therapy. Notwithstanding, she continued to see Respondent. At the time she was also seeing another therapist named Phillips with whom she discussed Respondent's therapy.
Phillips indicated she had other patients with the same complaint, but no additional evidence on that matter was forthcoming.
P. S. admits to having strong feelings, both good and bad, about her relationships with men. Sometimes she found them despicable, and as a result of these relationships she developed a strong distrust of men. In July 1993, while still under Respondent's care, P. S. wrote down thoughts indicating she often developed a strong dislike for most men which bordered on hate. During these periods she would try to convince others how horrible men are. She also developed a problem with her sister and distrusted her as well. The problem with her sister stemmed from childhood when she was abused by the sister's father who was not P. S.'s father. Her feelings about Respondent were ambivalent; sometimes she liked him and other times she did not. She visited his home several times for church functions during her treatment at which times his wife and daughter, as well as other family members, were there.
Respondent's sister-in-law, Ardell, defended
Respondent when P. S. told her of his actions, telling her he was just trying to help her. They were close at one time, even progressing to a physical relationship, but their relationship deteriorated when Ardell replaced her as head of
the women's ministry at church. P. S. blamed Respondent for much of this and it played a part in her termination of treatment with him.
During her hospitalization at University Hospital,
P. S. did not report Respondent's actions even though she was visited there by Dr. Ruiz, her psychiatrist, Dr. Logan, her therapist, and a staff psychiatrist. She claims to have told the incest abuse group at Charter Hospital about it but can't recall when this was. She also discussed his misconduct with her support group at Ridgeview Hospital in Georgia toward the end of their relationship. Nevertheless, when asked upon release who she wanted to see for continuing therapy, she included Respondent.
P. S. claims that at one point during their professional relationship she told Respondent she was developing amorous feelings for him. He did not, however, suggest the relationship be terminated nor did he suggest she see another therapist. On another occasion, at a point where she was having misgivings about his methods, she asked him for a list of potential other therapists, but did not do anything about it. In fact, she has referred other patients to Respondent while she was in therapy with him; probably, she believes, even after his alleged misconduct with her started. In the letter she subsequently wrote to the Board regarding
Respondent's actions with her, she alleged his misconduct started within six months or less of her initial visit to his office.
In April, 1993, P. S. started seeing Dr. Sandra Logan, a psychologist, initially for job stress. She told the doctor she had been seeing another therapist but she cannot be sure if she mentioned Respondent by name. At that time, P. S. wanted to transfer into another job with the company and discussed her job- related problems, but she also discussed other problems with her as well.
Dr. Logan first met with P. S. on April 13, 1993, at the GTE family health clinic where she worked. P. S. reported she had been in treatment for depression since 1988 and was under the care of a psychiatrist, Dr. Ruiz. Dr. Logan put
P. S. in a group for therapy. The group sessions were over after six weeks, and Dr. Logan did not see P. S. again until February 1994. At that time, P. S. said she had been seeing Respondent and wanted to change, but because Logan was white,
P. S. could not be sure she could trust her. As a result, Dr. Logan recommended an African-American therapist. P. S.
again came to Dr. Logan for work-related stress on January 24, 1995. At that time, Dr. Logan put her on medical leave, and she was then hospitalized at Ridgeview.
Dr. Logan again saw P. S. in February and April 1995. On the former visit, P. S. started talking about her relationship with Respondent, but nothing significant was reported. P. S. came into the clinic sporadically until 1998 when she started to come in again on a regular basis with issues regarding her family.
When P. S. finally reported her allegations regarding Respondent to Dr. Logan, the latter recommended she send in a complaint. At that point, Dr. Logan felt the allegations were credible and not the result of delusions.
P. S. had had only one incident of a delusion, and that was work related.
P. S.'s husband, also hospitalized several times for depression, relates that P. S. entered her first period of hospitalization after their marriage. He contends, however, that even when suffering from bouts of depression, her memory was not affected. She often spoke with him of her therapy with Respondent, indicating she was not comfortable with some of the things Respondent was doing, such as inappropriate touching of her sexual parts which, she contended, happened several times. However, since she indicated it was a part of the therapy and since he wanted her to improve, he accepted that.
Finally, after several years of this therapy, Mr. S. and P. S. met with Respondent about what was allegedly happening in the therapy sessions. When the meeting was set up, Mr. S. thought only the three of them would be involved, but when they got to Respondent's office, a fourth party was present. During this meeting, they discussed Respondent's method of therapy. Respondent did not go into details of what he did during the sessions, but he categorically denied
P. S.'s allegations and would not discuss the issue. P. S. stayed in treatment with the Respondent for a short while after this meeting but remained uncomfortable with the process. She continued, however, when Respondent assured her he was providing therapy.
Dr. Deborah Frank, a certified sex therapist possessing a doctorate in marriage and family therapy, is familiar with the state rules and regulations governing the practice of family therapy and with the effects of the various medications used therein. She reviewed the investigative file in this matter and was present during the testimony of P. S.
According to Dr. Frank, cognitive therapy is used frequently in the treatment of depression. It helps the patient see that not all is bad -- that there are ways for the patient to see themselves so as to find good within himself, herself, or the situation. This is done through verbal
discussion and through the patient's keeping a journal of negative versus positive thoughts. There are also other counseling technologies such as task setting and exercises which suggest ways for patients to take charge of their life. The degree of depression impacts on which methodology is chosen. Extreme depression may leave the patients so tired they can do no more than follow advice. Cognitive therapy is sometimes used in the treatment of depression resulting from abuse of the victim.
Sex therapy allows the patient to feel comfortable with his or her own sexuality. This can be done by talking with the patient and their partner and is used to treat issues arising out of childhood sexual abuse. A woman who was abused as a child tends to sexualize later relationships as indicating acceptance and affection. There is also hate and anger as a result of the abuse which can be carried over to adulthood and relationships with men. In Dr. Frank's opinion,
P. S.'s attitude is typical of that. Outcomes of sexual abuse as a child include depression and a lack of self worth; a feeling in the abused that she is dirty and sex is dirty; and a lack of trust manifesting itself in sexual dysfunction.
Relaxation techniques can help a patient suffering from sexual dysfunction. Different techniques include imaging, deep breathing exercises, confrontation, and massage,
but the latter is inappropriate for a victim of sexual abuse. If massage is used with someone other than a depressed individual or a victim of abuse, it may set up a relationship that the patient misinterprets and result in development of feelings for the therapist (transference). In such a case, the therapist must set boundaries and convince the patient that he is not a valid love object. If and when it becomes apparent that transference has taken place, it is wrong to continue to have physical contact with the patient. Some physical contact, such as a hug, is acceptable if it is a therapeutic hug. Even this, however, can be dangerous in some cases, and it is up to the therapist to know this and when any physical contact is contraindicated.
According to Dr. Frank, all of the areas that Respondent touched on P. S. were wrong in this case -- even the face -- because of her proclivity to misinterpret. This is even more so when the client is not comfortable with it. Individuals with experiences like P. S. have trouble setting boundaries, but it is up to the therapist to do this, not the client.
In this case, in Dr. Frank's opinion, if the allegations by P. S. are true, Respondent did not meet standards. His education and training should have made him careful to set boundaries with the patient. He should have
recognized and protected her vulnerability. It was inappropriate for Respondent to suggest guilt to P. S. when she said she was uncomfortable with his approach, and it was also inappropriate for him to suggest he would feel rejected by her attitude. Under the circumstances, however, Dr. Frank does not find it surprising that P. S. stayed in therapy with Respondent even though uncomfortable with his approach. She did not have a sophisticated understanding of the therapeutic process and was obviously too trusting.
Dr. Frank recognizes that individuals with psychosexual dysfunction may have a tendency to fantasize more than others and misinterpret the actions of the therapist. According to Dr. Frank, it doesn't matter in the evaluation of these allegations that P. S. does not recall whether Respondent asked her to touch his penis or not. Quite often parties to a sexual relationship do not remember who made the initial overture; what is significant in the relationship is that it happened at all.
By the same token, Dr. Frank believes it is not at all inconsistent for P. S. not to mention Respondent's actions to other professionals because she did not feel empowered to do so. She might consider it a betrayal of Respondent to do so and suffer feelings of guilt thereafter. Under the circumstances, having reviewed P. S.'s records and being aware
of her background, Respondent had the responsibility not to do anything which could be misinterpreted by her.
To be fair to Respondent, Dr. Frank admits that from her review of P. S.'s record of treatment by Respondent, not all of her issues were sexual in nature, and in these other issues the Respondent provided help. He addressed family issues, general relationships, rejection, conflict, and trust. He used reality testing and cognitive behavior techniques, allowing her to express her feelings. Dr. Frank believes, however, that it would have been helpful to bring in her husband more often and Respondent could have delved more into the homosexual issues presented.
P. S. took several medications during the period of her treatment by Respondent, as indicated here. Zoloft is a very safe antidepressant whose side effects are minimal. Elavil may cause an exaggeration of symptoms of paranoia. Wellbutrin has the side effect of causing confusion in some patients. Desyrel, used to treat P. S., may cause hallucinations and delusions when given in high doses and though low doses are unlikely to produce such side effects, it is possible. Ambien's possible side effects include a variety of abnormal thinking and behavior patterns, including agitation, hallucinations and depersonalization.
While medications may affect a patient's memory of dates, they will ordinarily not remove the patient's memory of the incident or occurrence, nor will they likely, in the doses prescribed here, cause hallucinations. The medical literature offered in evidence by Respondent show doses considered by the mainstream practice to be reasonable for treating depressed patients. P. S.'s records do not show any psychological reaction to her medications. The doses she was receiving were small.
P. S. was also subjected to psychological tests, including the Millon Clinical Multiaxial Inventory-II (MCMI), the results of which must be interpreted by a clinician to have validity. Here, in Dr. Frank's opinion, P. S.'s responses and the information developed regarding P. S. is not so far out of the medical mainstream as to merit being disregarded. This test was administered in 1989, at which time P. S. was an inpatient in a mental hospital, and the results reflect her feelings at the time the test was administered. If she was hospitalized for depression, the test would reflect her depressed state. In this case, the interpretation given to the test administered to P. S. reflects the severe psychotic episode which resulted in her admission. The results suggest the use of cognitive
techniques and building trust in the patient, and this is important.
Respondent's practice deals primarily with sex therapy and depressive states. He first saw P. S. as a referral from Pastor Scott in 1989. Before he could hold his first session with her, she was hospitalized. In the intake evaluation, P. S. referred to depression, the ease with which she could be hurt, spiritual issues, her relationship with her husband, and sexual issues brought on by touching. The visits with P.S. were not easy. She would switch issues. Sometimes one problem would surface and on another occasion, other issues would surface, including grief, insomnia, and hypo- vigilance involving her spouse and daughter due to her own abuse when she was a child.
Respondent's approaches then to the patient's depression were cognitive and supportive. Sometimes he would bring the family into the session. In dealing with her anxiety, he would use cognitive therapy, deep breathing, relaxation therapy, and restructuring (getting her to convince herself of the reality of things); P. S. and Respondent also dealt with her anger, which was destroying the family.
A major area of discussion was P. S.'s sexual abuse as a child. When she first came to Respondent, he was very careful not to touch her or close himself off with her,
leaving the office door open. He used a method of therapy through which the client first talked about her experience. They then moved to her reaction to it, and then on to her mastery of the problem. One of the main concepts to develop was her inability to trust anyone. They also worked on her relationship with her family, the church, and her stress as a result of these relationships. He found her to be hyper- sensitive and reactive to the most innocuous of comments.
Respondent used the LoPicolo method to work on
P. S.'s sexual anxiety. He had found she had a low sexual desire, in fact, an aversion to sex, and she had some orgasmic difficulties. To treat this he attempted to use awareness therapy and cognitive therapy. To make this work, however, the patient must accept her own body. To bring this about, he would have her touch her face and other body parts and tell him what she felt.
Concerning the area of her marital issues, they spoke of mental causes and dysfunction. P. S. and her husband had not had sex for a number of years. Her husband had two children by a previous marriage, and P. S. had a difficult time relating to the children. There was a lack of communication, and the couple separated several times.
There was also an issue with P. S.'s sister. P. S. gave her sister money for college and felt betrayed when the
sister took the money but did not use it for school. This required therapy on forgiveness. P. S. also experienced occupational stress, and he brought her to the point where
P. S. would decide when she was well enough to go back to work, but the overall need for stress management was continuous.
P. S. also suffered from panic attacks and had an issue with Ardell James, Respondent's sister-in-law. Ardell and P. S. were close friends, but P. S.'s emotional problems put so great a stress on the relationship that Ardell, over the objections of Respondent, began to back away from P. S.
P. S. could not handle this and became even more depressed, resulting in the hospitalization at Ridgeview.
According to Respondent, when P. S. came back from Ridgeview, she hoped to reestablish the relationship with Ardell, but Ardell refused. This further depressed P. S. When she had first come back from Ridgeview, P. S. indicated she wanted to start therapy again with Respondent. Thereafter, Respondent saw her eight times in the short month after her return until on one occasion he received a hysterical call from her saying she had been replaced with
Ardell in the women's ministry. P. S. alleged that Respondent had told Pastor Scott to replace her, and as a result, she would never forgive him and would see that he paid.
Notwithstanding this accusation and threat, she asked him to set up another meeting with Ardell, and at that meeting, she told him she could not continue therapy with him.
Dr. James then began to hear that P. S. was spreading rumors about his inappropriate therapy. He tried to set up a meeting with P. S. and Ms. Williams, another patient also alleged to be spreading rumors about him. Mr. S. also came to the meeting. At the meeting, P. S. made her allegations. When he asked Mr. S. if he had ever heard these allegations before that time, he allegedly said no. With that, Respondent claims, P. S. stormed out of the meeting and continued her attack on him with the Department and with the church.
P. S. alleged that the Respondent instructed her to touch all her body area, but Respondent denies this. He admits to telling her to touch her face and her breasts, but not her vaginal area in his presence, and he also contends she never disrobed in his presence. Self-touching is discussed in several authoritative publications entered into evidence which suggest desensitization as a valid therapy. "Sensate forces" is described as self-touching, and Respondent admits to letting P. S. do this. However, the therapist must monitor the client's level of discomfort, and he unequivocally states
he let her touch her face and breasts only and at no time suggested she engage in masturbation.
Respondent also categorically denies ever having touched P. S.'s breast or her vaginal area, or let her touch his penis during a session, and he denies ever making any sexual comments which involved him. In fact, he claims, he rarely touched her at all. On one occasion when she was very tense and could not talk, he gently massaged her neck and shoulders and thereafter gave her a prescription for massage therapy. The Respondent claims he will not touch portions of clients which are off limits. He contends that at no point did P. S. ever share with him, verbally or otherwise, any discomfort she felt when he massaged her neck.
Respondent admits that P. S. brought him pictures of herself at one point in their relationship, but contends there were only two through which she wanted to show him the "before" and "after" stages of his therapy.
When Respondent realized that transference was taking place, he tried to explain what it was to P. S. and that it was all right to talk openly with him. However, he asserts, he told her that because of the transference, he felt she should take therapy with another therapist and recommended Dr. Sanderson.
Respondent administered the MCMI-II to P. S. as an outpatient in his office. The responses she gave in answer to the questions asked are about what might be expected from a paranoid, delusional, and hallucinatory individual. This is how Respondent described P. S. at the time the test was administered. This description is not consistent with that used by Dr. Frank, who also opined he should not have interpreted the results himself.
Dr. James also claims that P. S. spoke with him of sexual improprieties by a prior therapist. When he asked for the therapist's name, she refused to provide it, nor would she give him any other information about the alleged incident. He did not enter this allegation into P. S.'s records, nor did he place on the record all the late night phone calls she made to him.
Pastor Scott cannot recall any instance over the
years he was P. S.'s minister when she said anything negative to him about Respondent's treatment of her, even though Pastor Scott was the person who brought them together. She always seemed happy and was displeased only when Pastor Scott removed her from her position of responsibility at the church.
Notwithstanding her belief that the Respondent was behind that removal, he was not, and Pastor Scott tried to make that perfectly clear to her.
Dr. Marian Sue Street, an expert in the field of marriage and family therapy and mental health counseling, has known Respondent for approximately ten years as a co-member of the faculty at the University of South Florida where he teaches a course in legal and ethical considerations and human sexuality for counselors. In her professional opinion, his teaching is well within accepted boundaries, and the school is particularly pleased with the quality of his teaching. He has high standards and demands high performance from his students.
Dr. Street has not had the opportunity to observe him with clients, but she believes his treatment of them is also good. He maintains high moral standards among students and faculty members, and his reputation is good. His standards and work ethic have him rated highly in the community.
According to Dr. Street, "transference" in counseling implies that the client will transfer feelings they have for another person of whom the therapist reminds them onto the therapist. This would make it possible for the client, having transferred erroneous feelings to the therapist, to fantasize the therapist has the traits of the other person. The client then believes that fantasy to be the truth. In that regard, Dr. Street contends there is a great deal of evidence that memories can be constructed.
Dr. Jon E. Mundorff, a certified sex therapist and an expert in marital counseling, sex therapy, and mental health, talked at length with Respondent about his background and philosophy before agreeing to testify in his behalf. He is aware of the allegations made, has reviewed Respondent's records, and heard the testimony of all witnesses. Based on his review of the records, his conversations with Respondent, and his own experience and training, he does not believe the allegations against Dr. James are true.
Based on his understanding of P. S.'s background and testimony, he can see no rational basis for her allegations. She alleges inappropriate behavior by Respondent over a period of time, sexual in nature, in which Respondent allegedly acted out sexually and requested she do the same. Yet Dr. Mundorff saw nothing in the evidence to support the allegations. He found her to be profoundly disturbed and capable of making up the allegations.
Dr. Mundorff considers Respondent's evaluation of
P. S. to be within a reasonable standard of care. Recognizing the potential that Respondent's actions in the sessions could have been misinterpreted, he believes P. S. is capable of considerable misinterpretation. In his opinion, Respondent was aware of P. S.'s distress and compensated for it in his treatment, and Respondent's interest in and care of P. S., as
manifested by his late-night time and demonstrated concern, indicate she received far more care than she paid for.
Dr. Mundorff sees as a major issue for P. S. her replacement as head of the woman's forum by Pastor Scott, and he believes she blames Respondent for it though she probably would not know that herself. He is impressed by her threat to never forgive Respondent and her determination to make him pay for her removal.
Dr. Mundorff also does not believe P. S. understood the concept of transference. Transference is not always a conscious thing, and the recipient may have nothing to do with it. Nonetheless, the transference becomes a reality to the client who has mental health problems, and the matters affixed to the therapist become reality to the client.
According to Dr. Mundorff, "manufactured memory" is a real scenario. He considers P. S.'s repeated hospitalizations to be indicative of her lack of reliability as a witness because, "they don't put people in a hospital for no reason." He also opined that P. S.'s almost inaudible
soft-spoken testimony is indicative of a desire not to be heard or to hide. Neither of these arguments is considered persuasive, however.
In Dr. Mundorff's opinion, the state of P. S.'s mental health was such that, under the stress she was facing,
it was likely that a fair amount of her recollections are delusional. That being the case, he further opines that the medications she was on, even at a low dose, could have increased her delusions. Significant as a factor in his evaluation is his opinion that most clients would not go back to a therapist who did what Respondent is accused of. P. S. repeatedly returned and consistently failed to report Respondent's alleged misconduct even though she had several opportunities to do so. He places little credibility in her testimony.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. See Section 120.57(1), Florida Statutes.
The Administrative complaint filed by the Department in this matter alleges that Respondent improperly committed a sexual battery on a patient in his care which constituted misconduct and practice below acceptable standards of care, in violation of Section 491.009(2)(k) and (s), Florida Statutes.
Section 491.009(2)(k) and (s) authorize the discipline of a licensee's license to practice in this state for:
(k) Committing any act upon a patient or client which would constitute sexual battery or which would constitute sexual
misconduct as defined pursuant to Section 491.011
and
(s) Failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance . . .
Rule 59P-10.002, Florida Administrative Code, as amended on April 28, 1998, provides:
It is sexual misconduct for a psychotherapist to engage, attempt to engage, or offer to engage a client in sexual behavior whether the client consents to such behavior or not, including kissing, sexual intercourse, or the touching by either the psychotherapist or the client of the other's breasts or genitals.
The parties agree that if the actions alleged, including the touching of the breasts and genitals of P. S. by Respondent or of the genitals of Respondent by P. S. at his request, are true, such actions constitute misconduct actionable under the provisions of the statutes and rules cited. The issue for consideration here, then is whether those actions occurred. Petitioner has the burden to establish the misconduct alleged by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).
In the consideration of the evidence in this case, the undersigned has the benefit of the provisions of Section 120.81(4)(a), Florida Statutes, which provides:
Notwithstanding s. 120.569(2)(g), in a proceeding against a licensed professional or in a proceeding for licensure of an applicant for professional licensure which involves allegations of sexual misconduct:
The testimony of the victim of the sexual misconduct need not be corroborated
Only two people know with certainty what transpired between Respondent and P. S. in the privacy of the Respondent's office. P. S. alleges grievous misconduct by the Respondent, and there is no independent evidence to corroborate her testimony. Several factors combine to diminish her credibility, however. She allowed the inappropriate behavior to continue over an extended period of years without raising any alarm or without reporting it to another therapist or anyone who could do something about it. She reported the misconduct to her therapy group but declined to identify the perpetrator. She reported the misconduct to her husband but dissuaded him from reporting it on the basis that Respondent's actions were therapy. The husband's acceptance of that and his allowing it to continue strains this observer's ability to comprehend. When P. S. was released from the hospital after her last period of hospitalization, she included Respondent among those with whom
she wanted to continue treatment, notwithstanding his alleged mistreatment of her over the years.
Other factors to be considered regarding her credibility are the fact that she continued to refer patients to Respondent even after she allegedly became uncomfortable with his treatment methods. She cannot remember whether Respondent asked her to touch his genitals or whether she initiated the touching. Notwithstanding Dr. Frank's opinion that this would not be unusual, under the circumstances of this case and her willing participation over an extended period of time, P. S.'s memory is an issue for consideration. She repeatedly voiced, vocally and in writing, her feelings of hate and distrust of men over the years, yet continued to participate in therapy of a type which she claims made her uncomfortable, which was provided by an individual within the group she distrusted. Her admitted episodes of mutual masturbation with Ardell, Respondent's sister-in-law, is also telling, and her extended period of mental illness reflects upon her credibility. Only Dr. Mundorff, whose testimony was not completely persuasive, saw any indication of delusions on her part, however.
On the other hand, Respondent, while denying any
inappropriate touching, admits to having massaged her neck and shoulders on some occasions. He admits to having a social
relationship with her even after his marriage fell apart. He recognized the potential danger of continuing with her as his patient and suggested dismissing her several times, yet recognizing her fragile emotional state, he continued to have a relationship with her that did include some touching. At best this shows extremely poor judgment on his part.
To be sure, there is some evidence that Respondent engaged in a relationship with P. S. that was inappropriate and would constitute misconduct and care below standard. However, some evidence of misconduct does not equate to evidence of misconduct that is clear and convincing, and the Board has not provided clear and convincing evidence of Respondent's misconduct.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a Final Order finding Respondent, Melvin William James, not guilty of the misconduct alleged and dismissing the Administrative complaint filed herein.
DONE AND ENTERED this 19th day of April, 2001, in Tallahassee, Leon County, Florida.
___________________________________ ARNOLD H. POLLOCK
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6947 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2001.
COPIES FURNISHED:
Deborah B. Loucks, Esquire Agency for Health Care
Administration
Post Office Box 14229 Mail Stop 39
Tallahassee, Florida 32317-4299
A. S. Weekly, Jr., M.D., Esquire Holland and Knight, LLP
400 North Ashley Drive Suite 2300
Post Office Box 1288 Tampa, Florida 33601-1288
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way Bin C07
Tallahassee, Florida 32399-3257
Susan Foster, Executive Director Board of Clinical Social Work,
Marriage and Family Therapy, and Mental Health Counseling
4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Theodore M. Henderson, Agency Clerk Department of Health
4052 Bald Cypress Way Bin C07
Tallahassee, Florida 32399-3257
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 08, 2001 | Agency Final Order | |
| May 01, 2001 | Recommended Order | |
| Apr. 19, 2001 | Recommended Order | Evidence did not show Respondent guilty of sexual misconduct with patient or practice below standard. |
DEPARTMENT OF HEALTH, BOARD OF PSYCHOLOGY vs NETTA SHAKED, PH.D., 01-000467PL (2001)
LARRY WYATT vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 01-000467PL (2001)
GREGORY J. HARRIS vs MARRIAGE AND FAMILY THERAPY, 01-000467PL (2001)
DEPARTMENT OF HEALTH vs TODD C. RABONE, L.M.H.C., 01-000467PL (2001)
MENTAL HEALTH COUNSELORS vs ROBERT S. COLEN, 01-000467PL (2001)
