STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
)
)
Petitioner, )
)
vs. ) CASE NO. 90-1216
)
THOMAS J. McQUEEN, )
)
)
)
Respondent. )
)
RECOMMENDED ORDER
On September 20-21, 1990, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Laura P. Gaffney, Esquire
Senior Attorney Department of Professional
Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
For Respondent: Ramon Carrion, Esquire
Carrion & Borja 2323 Curlew Road Suite 7C
Palm Harbor, Florida 34683 STATEMENT OF THE ISSUES
The issues in this case arise out of an Administrative Complaint filed against the Respondent, Thomas J. McQueen, by the Petitioner, the Department of Professional Regulation. The Administrative Complaint asks the Board of Marriage and Family Therapy to discipline the Respondent on charges set out in two counts.
Count I charges that the Respondent failed to make available to a patient or client, upon written request, copies of tests, reports or documents prepared for and paid for by the patient or client and in the possession or under the control of the Respondent, in violation of Section 491.009(2)(n), Florida Statutes (1989).
Count II charges that the Respondent also violated Section 491.009(2)(s), Florida Statutes (1989), by failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which the licensee or certificate holder is not qualified by training or experience. The Administrative Complaint alleges as parts of this count:
that the Respondent discussed his personal goals and frustrations during therapy;
that the Respondent accepted a business proposition from a client;
that the Respondent abruptly terminated counseling with no referral for continuing care;
that the Respondent undertook the directorship of a counseling center without being qualified by training or experience to do so; and
that the Respondent did not clarify or correct misleading information he presented regarding his professional credentials.
PRELIMINARY STATEMENT
All of the charges alleged in this case arise out of the Respondent's relationship with a single complaining client (patient). The complainant, as well as a former Department investigator and an expert marriage and family therapist, testified as part of the Department's case in chief. Four other fact witnesses testified for the Department in rebuttal. The Department introduced
25 exhibits in evidence.
The Respondent testified in his own behalf and elicited the testimony of three fact witnesses and, by deposition, one expert marriage and family therapist. The Respondent introduced 12 exhibits in evidence.
At the conclusion of the hearing, the parties requested and were given 21 days from the filing of the transcript in which to file proposed recommended orders. Two volumes of transcript were filed on October 5, 1990, making the proposed recommended orders due by October 26, 1990. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 90-1216.
FINDINGS OF FACT
The Respondent, Thomas J. McQueen, is licensed in Florida as marriage and family therapist. He has a Ph.D. in psychology but is not licensed as a psychologist.
On or about January 30, 1986, while practicing under his license as a marriage and family therapist, the Respondent had his first interview with the complainant in this case, who will be referred to as the client or complainant in this Recommended Order. The client had been referred to him for counseling as a result of the unexpected and unexplained death of her 19 year-old son.
Abuse of the Therapy Relationship
The client was suffering from major depression, single episode, categorized under 296.20 in the DSM-III manual for the diagnosis of mental and emotional illnesses. She worked part-time at her church, a Roman Catholic church in mid-Pinellas County, and had received consolation, expression of concern and understanding from her priests, coworkers and fellow parishioners there, but she was inconsolable. Worse, she reacted adversely to well- intentioned suggestions that the client interpreted as suggestions that she look for things God had given her to replace her son, such as her new son-in-law or, later, her new grandson. Seeing the severity of the client's grief, her priest referred her to the Respondent for counseling.
The Respondent is a former Catholic priest. When he came to Florida in 1979, he introduced himself to the pastor of his parish and to other priests and became active in the Catholic Church in Pinellas County, including volunteer service on the board of directors of Catholic Social Services. He encouraged the church to support marriage and family therapy and make it available through Catholic Social Services. At the time the client first came to see him, he was conducting a private counseling practice out of offices in two area Catholic churches made available for his use free of rent and any overhead charges. The client first saw the Respondent in his office at a local Catholic church in north Pinellas County.
The Respondent counseled effectively with the client. Not atypical of what happens in an effective therapist/patient relationship, especially in the earlier stages of therapy, the client thought the world of her therapist, the Respondent. She confided in him and looked to him for help and guidance in what for her was a most distressing time of her life. Using the words of the client herself, a deeply religious person, the Respondent was "a God" to the client. She looked at him as her savior. As she put it in a March, 1987, letter describing what she endured after her son's death: "There had to be a turning point, and since I no longer had the emotional strength to shift gears, there had to be someone else in the driver's seat. My counselor throughout my journey, Dr. Tom McQueen, took over the wheel, although I have no doubt that God was whispering directions to him."
During his therapy, the Respondent tried to encourage the client to take a "pro-active" approach to her grief and to her life, in general. And, using theological concepts with which both of them were familiar, he also tried to explain to her that she should reject and discard the idea of "replacing" her deceased son and replace it with the idea of her son's "resurrection."
After an initial short period when she found it difficult to function well in her normal daily work and activities, the most severe symptoms of her grief depression subsided, and the client was able to function adequately while therapy continued. Throughout her therapy, the client insisted, contrary to the Respondent's advice, that she see the Respondent only on an "as needed" or "as desired" basis. Her visits to the Respondent for formal counseling averaged a little more than one a month (although they were not regular monthly visits.) She was, and generally continued to be, a strong personality, capable of planning, organizing and implementing plans. She also continued to lead a busy life, as always, and she used this activity as a way of coping with her grief. However, maintaining a busy routine was only a temporary way of coping with her
grief. In the eyes of some, it masked her grief depression. But the depression persisted, and she continued to show signs of her depression that could be detected by a trained therapist.
Early on in counseling at the Respondent's counseling office at the north Pinellas parish, the client asked whether the Respondent saw clients closer to her residence in mid-Pinellas County. The conversation led to the Respondent's informing her that he had been trying for some time to persuade the Catholic Diocese to open what he considered to be a much needed counseling center in north Pinellas County, but his efforts had been to no avail. Thereafter, the subject came up from time to time during counseling sessions.
By late August, 1986, no cause of her son's death had yet been ascertained. Finally, an autopsy report was released, which conflicted with an earlier report, and the client reviewed it. This caused more severe symptoms of her grief depression to recur. She suffered acute pain and hurt again, and she became terribly confused again. She had difficulty sleeping.
On or about September 6, 1986, the client and her husband came in to see the Respondent. He did some additional testing, which confirmed that the client was "very depressed." He referred her to a licensed psychiatrist.
The client saw the psychiatrist on or about October 9, 1986. He diagnosed the client's condition as "major depressive disorder (unresolved grief response, pathological proportions). He prescribed Ludiomil, an antidepressant, and referred the client back to the Respondent for continued supportive psychotherapy.
The client had three or four more formal counseling sessions with the Respondent after the appointment with the psychiatrist--one in October, one in November and one or two in December, 1986. At the last of these sessions, the Respondent let the client know that, on that day, he himself was somewhat upset. He reported that he had just received notice that representatives of the Catholic Diocese were cancelling another meeting he had arranged to again try to persuade them to start a counseling center in north Pinellas County. The client's response was to ask whether the Respondent thought it would help if he could approach the Diocese with a $25,000 donation for use in establishing the center. She explained that she and her husband already had discussed and had decided to establish a charitable foundation in the name of their son, and it was her thought that the foundation could contribute to the financial support of the counseling center the Respondent was trying to persuade the Catholic Diocese to establish. She asked whether any other member of the Board of Directors of Catholic Social Services would be eligible to be director, and the Respondent replied in the negative. She fully concurred with the Respondent's desire that he be the director of the new center. She was very excited about the idea, which the Respondent himself characterized as a "whirlwind idea."
The Respondent's first response to the client's offer of financial support was, appropriately, to decline. But his judgment immediately became clouded by the personal benefits he saw that he could derive from it. He quickly came to view the idea as the perfect opportunity to achieve his personal goals. He reconsidered and accepted, on the conditions that he would retain enough independence from diocesan control and that the Diocese, not he, would be responsible for the administrative and financial operations of the center. He wanted to be responsible only for providing counseling at the center, similar to his current arrangements for private counseling. He became very supportive of the idea and even encouraged the client to view the project as a way to
"resurrect" her son. Consistent with this idea, on or about January 7, 1987, the anniversary of her son's death, the Respondent sent the client a card bearing the printed words: "I am the Resurrection. If anyone believes in me even though he dies he will live." The Respondent wrote on the card: "My family's prayer for yours today and each day is that the presence of your son will be forever renewed and resurrected in your lives."
By the time of the next scheduled therapy session, the Respondent decided to end the client/therapist relationship to enable him to embark on the new "business relationship" between them as cofounders of the planned counseling center. He cancelled the session and instead suggested a walk in the park. He further discussed the client's idea with her and suggested to her that he now thought of her as "something more than just a client." He told her that she no longer needed counseling and that in the future their meetings would focus on the establishment of the center, the "resurrection" of her son.
Having been led to believe that she was healed, the client discontinued her medication on or about December 25, 1986.
The Respondent enthusiatically embraced and was swept along by the client's "whirlwind idea." The client left the state for the holidays in December, 1986, but by January 14, 1987, the Respondent himself had met with the Chancellor of the Diocese and had prepared a written proposal for submission to the Catholic Diocese. The proposal is authored by the Respondent and refers to the client and her husband as "the prospective donors." It describes the history of the Respondent's efforts to bring to fruition his "dream of establishing a 'Catholic Social Services North', if you will, to provide counseling services as well as programs in spiritual growth and development." The Respondent proposed March 1, 1987, as the target date for opening the new center. He arranged for the client to contact the Diocese to further discuss the project.
Meanwhile, both the Respondent and the client began looking for appropriate offices to lease for the project. The client located offices and notified the Diocese. The Diocese recommended that the lease be postponed until the Diocese had completed its review of the proposal and reached a decision. Disappointed at the response, the client and the Respondent agreed that the client would enter into a lease effective on or about February 1, 1987, and would personally pay the $750 deposit and $750 a month, plus tax, rent until the planned center could officially open. It also was agreed that, in the meantime, the Respondent could conduct his private counseling practice in the leased space free of charge. The client personally, instead of the foundation, incurred these expenses because the foundation was restricted to contributions to charitable not-for-profit corporations and could not by law pay the rent for the Respondent's private counseling practice.
By February, 1987, the client also prepared a proposal for submission to the Catholic Diocese on behalf of her and the Respondent. The client's proposal made it clear that the Respondent would serve as the Director of counseling center and addressed the Respondent's concerns regarding his independence from the Diocese.
The Respondent and the client were disappointed with the diocesan response. At first, it seemed too slow to them. Then, at the end of February or beginning of March, 1987, they began to get indications that the Diocese was not comfortable with the Respondent's role in the proposal and that the Diocese thought the Respondent's projected salary of $50,000 a year was too high.
The client sprang to the Respondent's defense. She thought that the Diocese was foolish for not appreciating the Respondent's talents and abilities. She immediately set out to put together information to prove to the Diocese what she thought should have been obvious--that the Respondent's education, background, experience and abilities amply justified the salary he would be getting. The Respondent directed her to information about him, including a resume, articles written about him and by him, and letters of recommendation for her to attach to her March 3, 1987, letter to the Diocese.
Soon thereafter, before getting a response from the Diocese, the client and the Respondent became impatient and decided to start the counseling center without church sponsorship. They did, however, decide to ask the church for referrals, and the Diocese agreed that it would make referrals to the new counseling center.
That decision having been made, the client approached her attorney and asked him to incorporate the Counseling and Development Center, Inc. (CDC). The not-for-profit corporation was set up with a six-member board of directors. The attorney suggested that two board member be Catholic priests, and they were able to get the agreement of two priests to serve on the board. The Respondent and the client also served on the board, along with a pediatrician friend of the Respondent and a business associate of the client's husband.
On or about May 1, 1987, the Respondent closed his private practice, and the CDC opened its doors for business, with the Respondent serving as Director. As Director, in addition to counseling his own patients, he was to implement a marketing plan that included presentations to various church and community groups and was to recruit and supervise counselors and staff. Generally, his former clients became clients of the CDC, and their fees were paid to the CDC. The Respondent received his $50,000 a year salary.
The client also was actively involved in the operations of the CDC, serving as its bookkeeper, financial planner and general office manager.
Throughout this period of time, the Respondent continued to encourage the client to look at her involvement in the CDC as participation in the "resurrection" of her son. Around Christmas of 1987, the Respondent had a plaque made for hanging in the CDC. It dedicated the CDC to the memory of her son and featured a scripture verse on the Resurrection. He also sent the client a Christmas card that said in part:
When we speak of Christmas 'presents,' this plaque does not fall into that category.
However, when we speak of Christmas 'presence' we have a new and more meaningful reality.
While no remembrance is sufficient to capture the meaning of a person's life, I would like this plaque to hang in the front office of the Counseling and Development Center so that those who pass through our doors will share in the healing that is born of the Resurrection.
From May 1, 1987, through April, 1988, the foundation donated $60,000 to the CDC. From May 1 through October, 1988, another $25,000 was contributed.
In about April, 1988, the client began to get concerned about the amount of cash contributions the CDC was requiring of the foundation in order to operate. She confronted the Respondent about it, and he responded by letter in part:
Our conversation helped me to understand that I haven't made a very successful transition from the sailor of a private canoe to the captain of a much larger vessel! I need your help! . . . In the meantime, I will attempt to keep a better handle on the 'day-to-day' operations of our ministry. . . . Nothing is more meaningful to me tha[n] the continued success of what we have undertaken. If my vision is sometimes blurred and I don't see the way, I'll need you to hand me a pair of glasses!
In May, 1988, the client called a dinner meeting with the staff to discuss the CDC's financial problems. It was decided that the pay for the CDC's staff counsellors would have to be reduced to $20 an hour from $25 an hour. The Respondent offered to the complainant that his salary be reduced but she responded that would not be necessary.
It was not until October, 1988, that the complainant could bring herself to lay the blame for the CDC's problems on the Respondent. She became convinced that his management style was causing morale problems among the staff. More serious, she became convinced that he was not working hard enough for his salary and for the success of the foundation--her son's "resurrection." She had noticed that he did not seem to be physically present at the CDC very much. Records she was able to analyze indicated to her that, even giving the Respondent credit for a full day of work whenever he saw even just one client, it appeared to the complainant that the Respondent worked only 316 days out of a possible 540 workdays between May, 1987, and October, 1988. She suspected that he was working for himself on the side.
In October, 1988, the complainant advised the Board of Directors of the CDC of the problems she then perceived and what she perceived as the Respondent's blame for them. She advised the Board that the foundation would not continue to support the CDC unless certain changes were made, namely that the Respondent be removed as Director and demoted to the role of staff counselor and that she be installed as interim director until the position could be filled. She pushed the Board for almost immediate action. Stunned by the ultimatum and feeling pressured, the other members of the board interviewed the CDC's employees to try to ascertain the true facts and met several times in November, 1988, and proposed a compromise to the Respondent and the complainant. The complainant rejected the compromise out of hand.
In early December, 1988, the complainant left the CDC and formed the Counseling Services Center, Inc.(CSC), to compete with the CDC, and on or about December 28, 1988, the CDC board formally voted her off the CDC board of directors.
In fact, the Respondent knew, or should have known, that the client was not "healed" in December, 1986, when he agreed to accept the benefits of her proposal to use her son's foundation to establish a counseling center headed by the Respondent. Her grief remained unresolved and led to such emotional pain on her son's birthday, mother's day and Christmas, her son's favorite holiday, that she refused to celebrate those holidays.
A de facto client/therapist relationship continued even after formal counseling ceased. As the client herself explained it in a November 18, 1986, card she sent to the Respondent: "I am on my way to the finish line now, but I know there are obstacles and hurdles still ahead of me. I pray that I'll have the strength to get over them, and that you'll be there to help me if I fall."
Even if it were appropriate to terminate the client's formal therapy in December, 1986, it is clear that, despite her continuing considerable talents and abilities to make business decisions and implement them, the client was not at that time, or for many months to come, able to deal with the Respondent as an equal in a true arm's length business transaction. When it came to looking at the Respondent, the client saw through rose-tinted glasses. In her eyes, he could do no wrong.
The Code of Ethical Principles for Marriage and Family Therapy of the American Association for Marriage and Family Therapy (AAMFT), of which the Respondent is a member, sets out certain ethical standards which constitute minimum standards of performance in professional activities when measured against generally prevailing peer performance. The Code includes the following principles:
Marriage and family therapists are cognizant of their potentially influential position with respect to clients, and they avoid exploiting the trust and dependency of such persons. Marriage and family therapists therefore make every effort to avoid dual relationships with clients that could impair their professional judgement or increase the risk of exploitation.
Marriage and family therapists do not use their professional relationship with clients to further their own interests.
1.6 Marriage and family therapists assist person in obtaining other therapeutic services if a marriage and family therapist is unable or unwilling, for appropriate reasons, to see a person who has requested professional help.
The Respondent violated these ethical standards and, in so doing, did not measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance. (See Findings 3- 34, above.) He should have counseled his client against acting on a "whirlwind idea" but rather encouraged her to slow down and deliberately evaluate the idea and, if necessary, delay making any decision, to be sure she was not acting irrationally as a result of her grief-induced depression. If she insisted on going forward with the idea, he should have declined to accept the benefits of the directorship.
The Respondent also failed to measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance by discussing his personal goals and frustrations during therapy. (See Findings 8 and 12, above.)
Having decided to endorse the complainant's "whirlwind idea" and to accept the directorship, the Respondent also failed to measure up to minimum standards of performance in professional activities, when measured against generally prevailing peer performance, by not referring the client to another therapist for continuing therapy when he terminated formal therapy.
Representations Concerning Respondent's Credentials
The Respondent, while the holder of a Ph.D. degree in psychology, is not licensed as a psychologist. His only licensure is his Florida license as a marriage and family therapist.
The AAMFT Code of Ethical Principles includes among its principles:
6.4 Marriage and family therapists are careful to represent facts truthfully to clients and third party payors regarding services rendered.
7.1 Marriage and family therapists accurately represent their competence, education, training, and experience relevant to their practice of marriage and family therapy.
Marriage and family therapists assure that advertisements and publication, whether in directories, announcement cards, newspapers, or on radio or television, are formulated to convey information that is necessary for the public to make an appropriate selection.
Marriage and family therapists do not use a name which could mislead the public concerning the identity, responsibility, source, and status of those practicing under that name and do not hold themselves out as being partners or associates of a firm if they are not.
7.6 Marriage and family therapists correct, wherever possible, false, misleading, or inaccurate information and representations made by others concerning the marriage and family therapist's qualifications, services, or products.
When the complainant was referred to the Respondent for counseling, the priest who recommended the Respondent gave the complainant the impression that the Respondent was a psychologist. But it was not proven that the Respondent knew what the priest had told the complainant. Nor was it proven that the Respondent himself ever told the complainant that he was a psychologist. The evidence was only that the Respondent informed the
complainant in the course of conversation and via written materials that he had obtained a Ph.D. degree in psychology. Also, on one occasion, as part of the start-up of the CDC, the complainant informed the Respondent that she had arranged to have the CDC listed in the telephone book under "Psychologists." Without explicitly explaining why, the Respondent had the complainant change the listing to the heading, "Marriage and Family Therapy."
The Respondent's Florida license as a marriage and family therapist hung on the wall of the office in which he counseled the complainant. Also on display in the office was the Respondent's Pinellas County occupational license, which identified him as a marriage and family therapist. Nothing on display in the office referred to the Respondent as a psychologist although his Ph.D. diploma would have indicated that his degree was in psychology.
When the complainant came into the CDC offices in March 3, 1987, looking for information to buttress her argument to the Catholic Diocese that the Respondent was well worth his projected $50,000 a year salary, the Respondent directed her to written materials in a binder on a bookshelf in the hall just outside his office. Cf. Finding 20, above.
The written materials which the complainant found in the binder and attached to her March 3, 1987, letter to the Diocese included the Respondent's resume, which set forth the Respondent's licensure only as a marriage and family therapist and otherwise accurately reflected the Respondent's education, training and experience. They also included two newspaper articles written about the Respondent in which the Respondent was referred to as a psychologist or was referred to by the title of the position he held with Pinellas County in the early 1980s--psychological consultant. They also included one article written by the Respondent in the same time period in which he referred to himself as a psychologist. There also were letters of reference concerning the Respondent which referred to him as a psychologist.
There was no evidence that the Respondent knew what material the complainant had seen in or had selected from the binder on the bookshelf. There also was no evidence whether the Respondent had corrected the information contained in the letters of reference or whether he ever used the letters of reference.
The evidence did not prove that the Respondent had reason to know that the complainant thought he was a licensed psychologist. (The evidence indicates that the complainant was more familiar with the term "psychologist" and focused on that designation, not appreciating the significance of the distinction between a licensed psychologist and a licensed marriage and family therapist. Part of the problem seems to arise from the apparently permissible use of the prefix "Dr." by Ph.D.'s in psychology whether or not they are licensed in Florida as psychologists. 1/ )
The evidence did not prove that the Respondent violated the principles of the AAMFT Code of Ethical Principles cited in Finding 40, above.
The evidence did not prove that the Respondent failed to measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance by misrepresenting his credentials to the complainant or by failing to clarify or correct what he knew or should have known to be a misapprehension of his credentials by the complainant.
Maintenance of Complainant's Patient Records
Principle 2.3 of the AAMFT Code of Ethical Principles provides:
Marriage and family therapists store or dispose of client records in ways that maintain confidentiality.
When the CDC opened for business on May 1, 1987, the Respondent kept his active and inactive files from his private practice, including the complainant's file, in the CDC offices. He made an effort to keep the complainant's files separate from the active files of the CDC but there were two occasions when his secretary saw the complainant's file on the Respondent's desk. One time, when the secretary was about to put the complainant's file among the CDC files, the Respondent happened to return to his office and told his secretary that the complainant's file would not be kept at the CDC.
On or about January 17, 1989, the complainant requested a copy of her records from her private counseling sessions with the Respondent. The Respondent replied by letter dated January 19, 1989: (1) stating that the staff counselors, who resigned effective December 15, 1988, and were hired by the complainant's CSC, removed active and inactive CDC files to the CSC; and (2) suggesting that the complainant's file may have been among them. However, each CDC staff counselor kept his or her client files in a locked filing cabinet to which only the counselor had access. They did not take the complainant's file.
Through a February 6, 1989, letter from the Respondent's attorney, the Respondent responded that he had not been able to find the complainant's file. The letter indicated that the complainant's file was stored together with CDC inactive files, to which the complainant and the CDC staff counselors had access. The letter suggests that the complainant's file could have been removed either when the complainant and her representatives removed all her belongings on December 3, 1988, in the Respondent's absence, or when the three staff counselors who left the CDC and were hired by the CSC removed their files approximately two weeks later, also in the Respondent's absence. Yet, at final hearing, the Respondent conceded that it would be inappropriate for him to store the complainant's file in a place where it would be accessible to the CDC staff counselors. In addition, the February 6, 1989, letter states that the Respondent was actively treating private patients, whose records were being maintained in the Respondent's private office at the CDC, which he denied at final hearing.
On July 7, 1989, the complainant again demanded the return of her file. By letter dated July 27, 1989, Respondent's attorney replied, again denying that he had the file and suggesting that the complainant herself may have taken it.
At hearing, the Respondent testified that he understood the complainant had the keys to all locks at the CDC and therefore had access to her file, which he thought was in a locked drawer in his office. But the testimony of the three CDC staff counselors who left to join the CSC was that the complainant did not have a key to the locked file cabinets where they kept their active client files.
It was not clear from the evidence what happened to the complainant's file. It is clear, however, that the Respondent has not been able to locate the complainant's file, was unable to return it or a copy of it on demand, and did not adequately safeguard the file and the confidentiality of its contents. This was a violation of AAMFT Ethical Principle 2.3 and constituted a failure by the Respondent to measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance.
The evidence did not prove that the Respondent failed to measure up to minimum standards of performance in professional activities, when measured against generally prevailing peer performance, by undertaking activities for which he was not qualified by training or experience. First, the evidence shows that the Respondent never undertook to perform financial or general management duties for the CDC. Second, it was not proven by a preponderance of the evidence that he did not or could not perform the duties which he did undertake.
CONCLUSIONS OF LAW
Section 491.009, Florida Statutes (1989), provides in pertinent part:
When the department or the board finds that [a licensee] whom it regulates under this chapter has committed any of the acts set forth in subsection (2), it may issue an order imposing one or more of the following penalties:
* * *
(c) Suspension for a period of up to 5 years or revocation of a license or certificate, after hearing.
* * *
Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
Issuance of a public reprimand.
Placement of [the licensee] on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring [the licensee]
to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of a designated licensee or certificateholder.
Restriction of practice.
The following acts of a licensee . . . are grounds for which the disciplinary action listed in subsection (1) may be taken:
* * *
(n) Failing to make available to a patient or client, upon written request, copies of
tests, reports, or documents in the possession or under the control of the licensee or certificateholder which have been prepared for and paid for by the patient or client.
* * *
(s) Failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which the licensee or certificateholder is not qualified by training or experience.
The evidence in this case does not prove a violation of Section 491.009(2)(n), as charged in Count I of the Administrative Complaint. It was not proven that the documents in question--the complainant's patient file--was in the possession or under the control of the Respondent. However, the evidence as to the Respondent's maintenance of the complainant's file proves a violation of Section 491.009(2)(s), as charged in Count II of the Administrative Complaint, for failure to properly safeguard the file and the confidentiality of its contents.
The evidence also proved several other violation of Section 491.009(2)(s):
(A.) The Respondent violated Principles 1.2 and 1.3 of the AAMFT Code of Ethical Principles when he terminated counseling and entered into a business relationship with the complainant to further his personal interests, and, in so doing, he did not measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance. (See Findings 3-34, above.)
(B.) The Respondent also failed to measure up to minimum standards of performance in professional activities, when measured against generally prevailing peer performance, by discussing his personal goals and frustrations during therapy. (See Findings 8 and 12, above.)
(C.) The Respondent also violated AAMFT Ethical Principle 1.6, and, in so doing, failed to measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance, by not referring the client to another therapist for continuing therapy when he terminated formal therapy.
The evidence did not prove that the Respondent violated the principles of the AAMFT Code of Ethical Principles cited in Finding 38, above, and did not prove that the Respondent failed to measure up to minimum standards of performance in professional activities, when measured against generally prevailing peer performance, by misrepresenting his credentials to the complainant or by failing to clarify or correct what he knew or should have known to be a misapprehension of his credentials by the complainant.
The evidence also did not prove that the Respondent failed to measure up to minimum standards of performance in professional activities, when measured against generally prevailing peer performance, by undertaking activities for which he was not qualified by training or experience. First, the evidence shows that the Respondent never undertook to perform financial or general management duties for the CDC. Second, it was not proven by a preponderance of the evidence that he did not or could not perform the duties which he did undertake.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Marriage and Family Therapy enter a final order fining the Respondent $1,000 and suspending his license for one year, to be reinstated at that time subject to the completion of continuing education specified by the Board in the area of professional ethics, if available, and subject to one year of probation.
RECOMMENDED this 5th day of November, 1990, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1990.
ENDNOTES
1/ Both marriage and family therapists who testified in this case as experts referred to themselves by, and were referred to by, the prefix "Dr." Neither was a psychologist. One had a Ph.D.; the other had an Ed.D. degree.
APPENDIX TO RECOMMENDED ORDER
To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
More than (sometimes much more than) one proposed finding of fact are contained in each of the Petitioner's proposed findings of fact. They also are interspersed with many statements that are subordinate or unnecessary or argument. For the most part, the proposed findings are accepted as factually accurate, and they are incorporated in the Findings of Fact, to the extent not subordinate or unnecessary, except:
The fifth sentence is rejected as not proven. In the sixth sentence, the date is rejected as not proven.
The fifth sentence is rejected as not proven. In the eighth sentence, the date is rejected as not proven. Likewise, in the eleventh sentence, the date is rejected as not proven.
The eighth sentence is rejected as not proven.
The ninth sentence is rejected as not proven.
Sentences 11 through 13 are rejected as not proven. (The proof was as to counseling hours, not all time spent in connection with directing the CDC.)
As to the third sentence, the complainant presented an ultimatum, not a "proposal," to the board of the CDC. As to the fourth sentence, rejected as not proven that the meetings of the Board of Directors were "numerous." (The meetings were not all official full board meetings.) As to the eighth sentence, rejected as not proven that the counselors were "not threatened." They were threatened in the sense that they were told the foundation would no longer support the CDC financially and that, without the foundation's financial support, the CDC would fold, and they no longer would have jobs there. As to the eleventh sentence, rejected as not proven that this was "the purpose" of the CSC. Like the CDC, the CSC also served several other purposes for the complainant. As to the thirteenth sentence, rejected as not proven that the Respondent "issued" the letter. He testified that he prepared it, signed it and had copies made but then called his lawyer who advised that it not be distributed. He further testified that he suspects a counselor saw the letter lying on a desk in the office and erroneously mailed it to a client without the Respondent's permission. While the Respondent's testimony is not necessarily accepted, the Petitioner's evidence did not preponderate as against the Respondent's testimony.
13. As to the first sentence, Dr. Hester's testimony is not "discounted"; rather, it was weighed in light of the factors mentioned, as well as others.
As to the fifth sentence, the term "exploited" is rejected as not proven in the sense that the Respondent saw the complainant's vulnerability and set out to take advantage of it. Rather, it is found that the Respondent, while perhaps not exercising the best judgment, nonetheless rather innocently mentioned and discussed in conversation initiated by the complainant, a fellow Catholic who also was employed at the time by one of the Pinellas County Catholic parishes, some of his dealings with the Catholic diocese, specifically his efforts, as a member of the Board of Directors of the Catholic Social Services, to establish a Catholic counseling center in North Pinellas County. The idea of a counseling center supported financially by the complainant's son's foundation was suggested by the complainant, not the Respondent. It also was not proven that the idea was bad for the complainant. The Respondent's downfall was that the opportunity that the complainant offered him was not only "too good to be true," it was also "an offer he couldn't refuse," even though, as the complainant's therapist, he should have counseled against hasty decisions and should have declined to participate as director of the proposed center
Sentences five through seven are rejected as not proven and as contrary to facts found.
21. Second paragraph, first two sentences, dates rejected as not proven. See 4 and 5, above.
Respondent's Proposed Findings of Fact.
Accepted and incorporated.
Subordinate and unnecessary.
Accepted but unnecessary.
4.-6. Accepted and incorporated to the extent not subordinate or unnecessary.
Last sentence, rejected as contrary to the greater weight of the evidence and the findings of fact that the complainant experienced a "breakthrough." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Second sentence, rejected as contrary to the greater weight of the evidence and the findings of fact that the complainant was "fully" functional at all times. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated.
Second and third sentences, rejected as contrary to the greater weight of the evidence and the findings of fact. The subject came up at the meeting before the "walk in the park." It is not clear what date these took place. See
4 and 5 of the rulings on the Petitioner's proposed findings of fact.
Rejected as contrary to the greater weight of the evidence and the findings of fact.
Accepted and incorporated.
13-15. Accepted and incorporated to the extent not subordinate or unnecessary. However, the possible implication that the Respondent was not also involved in the process in many respects is rejected as contrary to the greater weight of the evidence and the findings of fact.
Accepted and incorporated. However, as found, the patient/therapist relationship was prematurely discontinued as a result of the institution of a business relationship in its place.
Last sentence, rejected as argument and as contrary to the greater weight of the evidence and the findings of fact; however, accepted and incorporated that she did not know what a marriage and family therapist was, as contrasted with a psychologist. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
18.-19. Accepted and incorporated to the extent not subordinate or unnecessary.
First sentence, rejected as contrary to the greater weight of the evidence and the findings of fact that she first became critical in September, 1988. Otherwise, accepted and incorporated.
Last sentence, rejected as contrary to the greater weight of the evidence and the findings of fact that the files were lost. It is found only that the Petitioner was unable to prove what happened to the files. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Generally accepted and incorporated.
First sentence, accepted and incorporated. Second sentence, rejected as contrary to the greater weight of the evidence and the findings of fact; she testified that it is possible for the relationship to continue indefinitely. Dr. Frank's testimony is understood to be that things revealed to the therapist during therapy can make it difficult for a therapist ever to be able to deal with a former patient at arm's length.
As to the first sentence, see the treatment of the second sentence in 23, above. The rest is accepted and incorporated to the extent not subordinate or unnecessary.
Accepted but subordinate and unnecessary.
First sentence, accepted but subordinate and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence and the findings of fact.
Rejected in part as argument and in part as contrary to the greater weight of the evidence and the findings of fact or as subordinate to facts contrary to the greater weight of the evidence and the findings of fact.
COPIES FURNISHED:
Laura P. Gaffney, Esquire Senior Attorney
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Ramon Carrion, Esquire Carrion & Borja
2323 Curlew Road Suite 7C
Palm Harbor, Florida 34683
Linda Biedermann, Executive Director Board of Clinical Social Work, Marriage
and Family Therapy, and Mental Health Counseling
Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Kenneth E. Easley, Esquire General Counsel
Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE BOARD OF MARRIAGE AND FAMILY THERAPY WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE BOARD OF MARRIAGE AND FAMILY THERAPY CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.
=================================================================
AGENCY FINAL ORDERS
=================================================================
STATE OF FLORIDA DIVISION OF ADMINISTRATIVE
BOARD OF CLINICAL SOCIAL WORK, MARRIAGE
AND FAMILY THERAPY AND MENTAL HEALTH COUNSELING
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. DPR CASE NO. 0112790
DOAH CASE NO. 90-1216
THOMAS J. MCQUEEN,
Respondent.
/
FINAL ORDER
THIS CAUSE came on to be heard before the Florida Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Board) at a regularly scheduled meeting held in Tampa, Florida on January 11, 1991.
The Board, having reviewed the complete record in the above-styled cause including the transcript and exhibits, hereby makes the following ruling on the Exceptions filed by Respondent to the Hearing Officer's Recommended Order dated November 5, 1990. Respondent's Exceptions were filed November 20, 1990.
Respondent's Exceptions No. 1 and 2 are rejected. As to Exception No. 3, the Board agrees that the Hearing Officer's Finding of Fact No. 35 should be modified to state that Respondent is not a member of the American Association for Marriage and Family Therapy.
Respondent's Exceptions No. 4 and 5 are rejected. Exception No. 6 was withdrawn by Respondent. Exceptions No. 7, 8 and 9 are rejected.
Respondent withdrew Exception No. 10. Exception No. 11 was rejected.
Petitioner filed one exception as to the Hearing Officer's Findings of Fact No. 13. The Board agrees that the first sentence of Findings of Fact No. 13 should be deleted, and replaced with the following: "The Respondent's first response to the client's offer of financial support should have been to decline".
With the above-mentioned modifications, the Board hereby ACCEPTS the Proposed Findings of Fact of the Hearing Officer.
As to those exceptions relating to the Proposed Conclusions of Law, the Board makes the following rulings. The Board rejects Respondent's Exceptions No. 12 and 13. The Board finds the evidence sufficient to support Conclusion of Law No. 3 in its entirety. There was credible expert testimony independent of the AAMFT Code of Ethics to support the conclusion that Respondent failed to meet minimum standards of performance in professional activities, when measured against generally prevailing peer performance.
Having rejected all of Respondent's Exceptions to the Conclusions of Law, the Board determines that the Conclusions of Law of the Hearing Officer be and the same are hereby ACCEPTED and made the Conclusions of Law of the Board.
The Board hereby rejects Petitioner's Exception as to Recommended Penalty. The Board hereby accepts in part the Recommended Penalty of the Hearing Officer and determines that an appropriate penalty in this cause should be a fine of
$1,000.00, a six-month suspension, followed by a two-year probation under supervision by a supervisor approved by the Board. At the end of the supervision, the supervisor will report to the Board as to Dr. McQueen's competency.
DONE AND ORDERED this 27th of February, 1991, by the Board of Clinical Social Work, Marriage and Family therapy and Mental Health Counseling.
LARRY SHYERS, CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to RAMON CARRION, ESQUIRE, Carrion and Borja, 2323 Curlew Road, Suite 7C, Palm Harbor, Florida 34683, LAURA P. GAFFNEY, Senior Attorney, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399-0792 this 28 day of February, 1991.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. DPR Case No.: 0112730
DOAH Case No.: 90-1216
THOMAS J. MCQUEEN,
Respondent.
/
ORDER CORRECTING FINAL ORDER
This ORDER corrects the FINAL ORDER filed in the case on February 28, 1991.
That by error or mistake the ORDER did not correctly reflect the penalty approved by the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling (BOARD) at its January 11, 1991 Board meeting.
The language of the paragraph which contains the penalty should read as follows:
The Board hereby rejects Petitioner's Exception as to Recommended Penalty. The Board hereby accepts in part the Recommended Penalty of the Hearing Officer and determines that an appropriate penalty in this cause should be a fine of $1,000.00; a
six-month suspension of license, if the individual continues to practice during that six months, it must be under the supervision of a supervisor approved by the Board; followed by a two-year probation supervised by a Board-
approved supervisor who will report to the Board at the and of the probationary period as to the competency of the Respondent; and completion of an ethics course.
This is DONE and ORDERED this 31st day of July , 1991, Nunc Pro Tunc to February 28, 1991.
LARRY SHYERS, CHAIRMAN
CERTIFICATE OF SERVICE *
I HEREBY CERTIFY that a true and correct copy of the foregoing Order Correcting Final Order has been furnished by United States Mail to Ramon Carrion, Esquire, Carrion and Borja, 2323 Curlew Road, Suite 7C, Palm Harbor, Florida 34683 this day of , 1991.
* NOTE: CERTFICATE UNSIGNED AND UNDATED
| Issue Date | Proceedings |
|---|---|
| May 22, 1995 | (Respondent) Verdict; Cover Letter filed. |
| Nov. 05, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 27, 1991 | Agency Final Order | |
| Nov. 05, 1990 | Recommended Order | Charge resp. didn't furnish patient file not proven. (No possession or control) Proof of charge of failure to safeguard file & patient confident. |
GREGORY J. HARRIS vs MARRIAGE AND FAMILY THERAPY, 90-001216 (1990)
LARRY AND KATHY ABBOTT vs DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 90-001216 (1990)
LARRY WYATT vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 90-001216 (1990)
DEPARTMENT OF HEALTH, BOARD OF PSYCHOLOGY vs NETTA SHAKED, PH.D., 90-001216 (1990)
RACHEL H. WOOTEN vs. DEPARTMENT OF HEALTH, BOARD OF PSYCHOLOGY, 90-001216 (1990)
