Court Overturns Incompetent Psychology Board Decision

The Oregon Court of Appeals today overturned a disciplinary action of the Oregon Board of Psychologist Examiners.

How bad was the psychology board’s original decision? Read on and decide for yourself.

The Board Does the Right Thing … Or Does It?

Justice at lastDavid T. Bice, a licensed psychologist, was disciplined in by the board in 2011 for improprieties that allegedly happened all way back in 2003. Dr. Bice appealed, of course, and the Oregon Court of Appeals supported him, slapping down the Psychology Board for an unbelievable number of mistakes, some of which were clearly deliberate.

I quote from the Oregon Court of Appeals decision (emphasis is mine; notes ending with ‘RP’ are also mine):

“In August and September 2003, SM, an 18-year-old woman, saw petitioner [that is, Dr. Bice —RP.] as a client for seven sessions. SM had decided to stop seeing her prior therapist because she did not like the advice she was receiving and began seeing petitioner, who had been her father’s therapist, to help her process her grief over her father’s sudden death, before she left the state for college. [SM turned 18 the day after her first session with petitioner.] SM’s mother filed a complaint against petitioner shortly after SM stopped treating with him based on allegations that petitioner had behaved in a manner that made SM uncomfortable, ‘indicating that [petitioner’s] behavior with SM was personal and physical without being overtly sexual.’ The board dismissed that complaint because SM told her mother that she did not want to pursue the complaint herself and did not sign a release for her records. The board, which it now admits was in violation of its own rules, deliberately decided not to notify petitioner about the complaint or the dismissal.
—From 281 Or App 623 (2016)

The Board manages to make the right decision, but breaks its own rules while doing so, as usual. And this is just one way they taint their later decision…

Tampering With Witnesses

karen berry accused obpe examiner
Karen Berry, OBPE’s “examiner.”

“… the board’s investigator, Berry, contacted another of petitioner’s female clients, DC, after DC’s father filed a complaint about petitioner’s billings. Berry told DC that her call had nothing to do with DC’s father and told DC that ‘several young women’ [in reality, zero young women —RP] had come forward accusing petitioner of inappropriate conduct. DC told Berry that petitioner was never inappropriate with her, but, in the course of the conversation, became very uncomfortable because Berry was being manipulative, kept trying to take her comments out of context, and insinuated that petitioner had done something wrong. As a result, DC filed a complaint with the board against Berry, which the board declined to pursue. Berry admitted that she had tried to press DC into saying that petitioner had acted inappropriately toward DC.

Berry’s behavior, which is worse than anything that Dr. Bice was accused of, seems to have the full approval of the Psychology Board.

“In 2009, the father of SC, a female client of petitioner, filed a complaint against petitioner based on two birthday cards and a high school graduation card petitioner had sent to SC, when SC was still a minor. SC did not provide a release of her medical records for the investigation. In an interview, SC stated that petitioner had never acted inappropriately toward her and called her father’s complaint an attempt at ’emotional revenge’ by her father who ‘wanted control’ and was opposed to SC seeking therapy.”
—From 281 Or App 623 (2016)

Déjà Vu All Over Again

“In 2010 [that is, seven years after the fact —RP], the board reopened the complaint involving SM  because SC’s father had filed his [known-bogus —RP] complaint. At that time, SM agreed to cooperate in an investigation against petitioner at the urging of Berry and her mother after Berry told her and her mother that the board had received a complaint involving a ‘similar situation.’ The board pursued this disciplinary action against petitioner based on the allegations relating to SM and SC.”

“A contested case hearing was held before the ALJ [“administrative law judge” —RP.] in November 2011. During that hearing, 14 witnesses testified, including petitioner, SM, SM’s mother, SC’s father, Berry, colleagues of petitioner, and expert witnesses. The ALJ also received many exhibits, including petitioner’s notes of his sessions with SM, diary entries made by SM during the time that she saw petitioner, Berry’s notes, petitioner’s investigator’s notes of a conversation with SC, the three cards that petitioner had sent SC, as well as other exhibits. The ALJ issued a 19-page proposed order that determined that the board had failed to prove that petitioner had violated professional standards in his treatment of either SM or SC.”
—From 281 Or App 623 (2016)

So the board failed to prove anything, Dr. Bice is not guilty, and the whole thing was just a waste of everybody’s time. Right?

Ignoring the Verdict

The board subsequently issued an amended proposed order that concluded petitioner had violated professional standards with regard to his treatment of SM and imposed sanctions, but agreed with the ALJ that it had not proved violations with regard to SC.”
—From 281 Or App 623 (2016)

Let this sink in for a while:

  • There was a hearing with witnesses, attorneys, evidence, a judge: everything.
  • Everything … except the members of the psychology board. They weren’t there.
  • The judge says, “Dr. Bice isn’t guilty,” and the Board says, “Oh, yes he is! Because … um … uh … but anyway, he’s guilty, guilty, guilty!”
  • Given the two bogus cases, the board chose to crucify Dr. Bice on the basis of the long-ago case of SM—a case they’d already dismissed once.
  • And because of the structure of Oregon Administrative Law, when the board (an unpaid, part-time, legally untrained, non-impartial body that didn’t even attend the hearing) disagrees with the administrative law judge, the board wins! No, seriously!
  • So the whole process turns out to be nothing but a pantomime: a meaningless kangaroo-court proceeding.
  • Dr. Bice appealed, as one must, because one’s first contact with an actual justice system is with the Oregon Court of Appeals.

The Appeal

As usual, Oregon Court of Appeals was deeply unimpressed by the psychology board. They said, in part:

“In particular, it is our assessment that the reliability of the evidence has been negatively affected by the board’s failure to properly inform petitioner of SM’s mother’s complaint when it was made, which resulted in petitioner not having recollections of the sessions with SM independent of his chart notes; the board’s significant delay in investigating that complaint and interviewing SM; SM’s inability to recall any details of her sessions with petitioner aside from details suggested by her mother’s 2003 complaint; and the manner in which Berry investigated the matters, which likely influenced SM’s recollections.”

In short, the Board was holding a great big bag full of nothing at all.

Changing the Record to Protect the Guilty

What if part of the board’s investigation was improper, because a release had not been signed? Why, alter the record, of course!

The court says:

“Berry had phoned Nancy Wernecke, a mental health practitioner for SC, and told Wernecke that ‘she had sent her a release, not mentioning that the release was signed by SC’s father and not SC,’ who was then 18 years old, so that Wernecke began telling the investigator protected information.”

In short, SC hadn’t been a minor since the day after her first session with Dr. Bice. Any release signed by her father after she turned 18 was worthless. Berry used the worthless release to swindle Wernecke into violating her patient’s confidentiality.

“The board modified that finding to find that the investigator could not remember whether she told Wernecke that she did not have a release signed by SC. On de novo review, we find that the investigator referred only to a “release” without telling Wernecke that the release was signed by SC’s father and not SC.
—From 281 Or App 623 (2016)

With Berry caught red-handed, the board simply altered their findings to conceal the truth.

An Infinity of Errors

And there’s more, oh, so much more. Let me just give you a few snippets from the Court of Appeals’ findings:

“Turning to the modified findings, we first reject the board’s modified finding …”

“We first reject without discussion the board’s preservation challenge…”

“We also reject the board’s argument that it did not modify the ALJ’s findings…”

“We reject the board’s contention that it did not make such a finding…”

“We first reject without discussion the board’s preservation challenge…”

“The board responds that it did not make that finding. We reject the board’s argument.”

“SM’s testimony is very different in character from the board’s finding; thus, we conclude that the board’s finding is not supported by substantial evidence in the record.”

What Next?

Oregon court of appealsThe Oregon Court of Appeals concludes:

“Having found that several historical facts are not as found by the board, we must remand for the board to reconsider, under a correct understanding of the facts, its conclusions that petitioner violated ORS 675.070(2)(d) (unprofessional conduct), Ethical Standard 2.01 (boundaries of competence), Ethical Standard 3.04 (avoiding harm), and Ethical Standard 10.01 (informed consent) in his treatment of SM. As a result, we do not reach petitioner’s other assignments of error, which challenge the board’s interpretation and application of those professional standards under the board’s view of the facts.

Reversed and remanded.”
—From 281 Or App 623 (2016)

What does this mean? It means that the decision has been reversed and the case has been returned to the Oregon Board of Psychologist Examiners with instructions amounting to, “Do it right this time.”

If the board runs true to form, they will exert themselves and come up with a new decision that’s even more incompetent than the old one. I know that this seems impossible, but trust me: they can do it. I can hardly wait.

8 thoughts on “Court Overturns Incompetent Psychology Board Decision

  1. Quality writing- easy to follow. Concise (the part I admire most).

    I am under the impression that for many years, the Court of Appeals did NOT require that agency rulings include clearly defined findings of “facts” decided (which support the rulings).
    So maybe it was worse in the past?

    1. Ralph,

      I’m not sure what the Court of Appeals required the boards to do. My impression is that the boards are simply too incompetent to live up to any kind of standards. Even their best friend wouldn’t be able to find anything praiseworthy in their actions, or even acceptable. You could pick any of their judgments at random and give them to first-year law students to pick apart, confident that they’d find plenty to complain about (and that they wouldn’t believe the examples were real).

      On the other hand, the Oregon Court of Appeals writes wonderful documents: clear, complete, readable (even by the layman), wise, unbiased, and obviously true.

  2. Robert, I believe you are in the right here. But, after reading the case of your friend Michaela, perhaps you should reconsider the degree to which you encourage people to tilt against this windmill. Reading your articles in part encouraged me to move to Oregon, so I could begin practicing in some capacity before attaining my degree. It turns out, as you demonstrated in this article and in the case of Michaela, this is professional suicide here. I agree that the Boards are wrong, and you are right about what should be. But, you are not helping people by encouraging this Oregon Mellow idea when it doesn’t really exist. Yes it sucks that evil people gain power by assuming government positions and ruin the healthy practice of something as natural as one person helping another for a fee. Why not regulate breathing? And they pretend to do so in the interest of “protecting” people, which is clearly a lie. But perhaps you need to take a look at yourself as well and add disclaimers to some of your articles. Elan

    1. Elan,

      Thanks for writing!

      I think it’s important for people to recognize that being 100% in compliance with the law is no guarantee that you won’t have to mount an expensive defense from time to time. It’s just one of those things.

      Here in Oregon, at least, therapy activities ARE exempted from licensing requirements by law, through the counseling exemption. This is not true in most states! So when the Psychology board hassles a practitioner, they’re typically in flagrant violation of the law, and this can be overturned.

      True, the Oregon Board of Psychologist Examiners (OBPE) is very un-Oregonian in its level of malice and incompetence. They’re the living embodiment of the Zimbardo “Guards and Prisoners” experiment. But this seems to be changing. Since I created this blog, they’ve been retreating step by step. They’ve admitted that the counseling exemption is real. They’ve backed off on their prosecutions of unlicensed folks. Their investigator (Karen Berry) has retired after the Oregon Court of Appeals ripped strips off her personally (and the board in general) when overturning the Bice case. The United States Supreme Court reaffirmed that licensing boards are violating federal law by prosecuting unlicensed competitors, except in circumstances that Oregon’s mental-health licensing boards don’t meet. The all-powerful COPACT lobbying group, representing counselors and family therapists, has once again come out as fully in favor of the exemption.

      My take is that unlicensed practitioners in Oregon are safer now than they’ve ever been. I don’t think that it’s a bed of roses yet, but only because the psychology board is … what’s the technical term? … let’s go with “dumb.” We have to accustom ourselves to the OBPE’s extreme slowness, and correct them over and over and OVER until they get the point. We’re getting there.

  3. Robert:
    Thanks for your astute observations and interpolation of the complicated process and sleight of hand moves by the OBPE, aka Karen Berry. You have the chronology correct and the prediction of outcome also accurate. Today is June 1st, 2017 and the COA ruled on 10 /19/16. To date the OBPE has had 4 meetings since the decision and, to my knowledge, the board has not acted to dismiss the complaint against me. In essence, the OBPE can just stonewall the COA in an apparent act of defiance toward the COA. The court does not follow up on their orders, so the agency can ignore the COA’s order with impunity. Apparently, to the OBPE, the notion of “contempt of court” is laughable. One point of order: the person referred to as DC was, at the time that Berry called her to solicit a complaint, a current, on-going client of mine. So much for the board protecting our clients!
    Thanks for your clarity and accuracy!

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