NHPA recommendations not included in BMHP revised rules

A number of NHPA recommendations do not appear to have made it into the BMHP's final draft of the rules.  These are listed below:

1.   This draft does not include the recommended requirement that allegations against a licensed clinician must be filed in good faith, be timely, and be submitted only by parties in good standing with respect to the conduct in question. NHPA recommended that a signed statement be included by the complainant to this effect, as is done in complaints against lawyers.

2.   This draft does not include a recommended provision that would restrict the scope of investigation to the initial charges, unless an egregious action on the part of the licensee is identified thus warranting an expansion.

3.    This draft does not include recommended language that would ensure the Board investigators (BI) or Professional Conduct Investigators be of the same guild as the licensee under investigation, have relevant and adequate level of experience and practice to investigate the conduct in question, or language that explicitly prevents Board Investigators or adjudicators from participating in actions that are out of the scope of their professional competence.

4.   This draft does not include a recommended provision for graded sanctions that reflect the severity of action (i.e., non-reportable educational actions for mistakes and violations that have not resulted in harm to patients). 

5.   This draft does not include a recommended provision for limited immunity from complaints for those licensed clinicians who perform evaluations and other forensic work that often result in a high probability of such complaints (i.e., child custody evaluations).  For example, the exemption should apply to certain court-appointed roles, where the evaluator is vetted as qualified in advance.  There are other state precedents for this kind of protection for those who perform good faith evaluations according to the standard of care for this work, and/or other protection from “nuisance” complaints. 

6.   This draft does not include the recommendation for a statute of limitations regarding complaints. This would ensure that there be a time limit on allegations of misconduct, which would maintain the integrity of the process, availability of valid evidence, and the opportunity for an appropriate defense to be undertaken by the licensee. 

7.   This draft does not include any obvious changes in numerous recommendations for due process provisions such as including a requirement that the evidence collected during an investigation needs to be limited to fact vs. opinion.  It must be determined if these are present in written office policy and procedures. 

8.   This draft does not include recommended language that requires that the evidence sought and collected during an investigation of a psychologist be related to established ethical standards, which are intended to be enforceable, not those that are expressly intended to be aspirational (as per APA Code which states, “General Principles, in contrast to Ethical Standards, do not represent obligations and should not form the basis for imposing sanctions.”) 

9.   NHPA also recommended that the rules provide language that reflects the purpose and scope of the BMHP to include an obligation to “be an independent and fair arbitrator of justice in its role as protector of the public receiving mental health services. This might require statutory change and thus may not have been within the scope of these rule revisions.

10. Finally, NHPA also requested that complainants be provided with an "informed consent" about the implications of the complaint process. Specifically, clients should be told that the investigation of their complaints might expose their treatment record to some degree of public scrutiny, (i.e., if clinicians choose to defend themselves at a public hearing).  And, before formalizing the complaint with an informed consent signature, complainants should (under appropriate circumstances) be given the option of an alternative dispute resolution or mediation.  Although mediation has been added to the final draft of the rules as an option for action to be taken by the BMHP in response to findings of misconduct, the provision of an "informed consent" to complainants has not been included.

11. NHPA strongly recommended that a broader range of "non-disciplinary" means for remediation be identified and articulated in the rules.  This recommendation does not appear to be reflected in the new rules.