Grabau v. DEPT. OF HEALTH, BD. OF PSYCHO., 1D00-3027.
| Decision Date | 22 April 2002 |
| Docket Number | No. 1D00-3027.,1D00-3027. |
| Citation | 816 So.2d 701 |
| Parties | David Faustino GRABAU, Appellant, v. DEPARTMENT OF HEALTH, BOARD OF PSYCHOLOGY, Appellee. |
| Court | Florida District Court of Appeals |
Vance W. Kidder, Tallahassee, for Appellant.
Simone Marstiller, Tallahassee, for Appellee.
Dr. David Grabau appeals a final order of the Board of Psychology (Board) of the Department of Health (Department) revoking his license to practice psychology and imposing an administrative fine. As grounds for reversal, Dr. Grabau asserts 1) that the final order is based on a deposition erroneously admitted into evidence pursuant to section 90.803(22), Florida Statutes, chapter 98-2, section 1, Laws of Florida, which Dr. Grabau contends is an unconstitutional statute; 2) that competent substantial evidence does not support the findings that Dr. Grabau's acts constitute sexual misconduct in the practice of psychology as well as the failure to meet acceptable minimum standards of practice; and 3) that he was improperly required to pay an administrative fine. We reverse the final order and remand for further proceedings.
Before July 1, 1997, the Agency for Health Care Administration (AHCA) was the state agency charged with regulating the practice of psychology. Department, the appellee, is now charged with such regulation and was substituted as a party in this case. § 20.42-.43, Fla. Stat. (2001); chaps. 455 & 490, Fla. Stat. (2001). In mid-1997, ACHA filed an administrative complaint before the Board alleging that on or about April 11, 1995, while employed as the chief psychologist at the Counseling Center for Human Development (located on the campus of the University of South Florida), Dr. Grabau commenced counseling sessions with a female, K.R., and established a psychologist-client relationship with her. Counseling ended on or about August 7, 1995. The client intake summary indicates that the goals were for Dr. Grabau to assist K.R. in stabilizing her depression and clarifying her patterns and needs regarding her career choices and personal relationships. Eventually, a sexual relationship developed between the two and continued until December 1995, when K.R. discovered she was pregnant.
Count One of the complaint alleged that by engaging in a sexual relationship with a client, Dr. Grabau violated section 490.009(2)(q) & .0111, Florida Statutes (1995), and rule 59AA-16.003(2) & (5)(a), Florida Administrative Code, which proscribe "sexual misconduct." Count Two alleged that Dr. Grabau violated section 490.009(2)(k), Florida Statutes (1995), by committing any act upon a patient or client that would constitute sexual battery or sexual misconduct as defined in section 490.0111, Florida Statutes. Count Three alleged that Dr. Grabau violated section 490.009(2)(s), Florida Statutes (1995), 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 is not qualified by training or experience." Dr. Grabau contested the allegations.
On October 16, 1996, during the course of K.R.'s federal civil lawsuit against Dr. Grabau and the Florida Board of Regents, K.R.'s videotaped deposition (taken by counsel for Dr. Grabau) was begun, was scheduled to be continued at another date at the request of Dr. Grabau's lawyer, but was never completed because the civil lawsuit was settled. In February 1999, citing section 90.803(22), Florida Statutes, Department moved to introduce into evidence K.R.'s deposition, in lieu of her live testimony, in administrative proceedings. The affidavit of the attorney who had represented K.R. at the 1996 deposition indicated that K.R. would refuse to testify live, even if called, because of the perceived severe psychological impact of her remembering the events at issue. Having been held in abeyance, the administrative disciplinary proceedings were reactivated in October 1999, and the administrative law judge (ALJ) granted the motion to use K.R.'s deposition. Dr. Grabau's appointed qualified representative complained that the deposition was incomplete, that Dr. Grabau never had the opportunity to cross-examine K.R., and that section 90.803(22) as amended was inapplicable because it became effective after the disciplinary proceedings began. The representative advised the ALJ that Dr. Grabau had tried unsuccessfully to locate K.R. and to take her deposition in the administrative disciplinary proceeding.
The ALJ ruled, first, that section 90.803(22) applied as the procedural rule in effect at the time of the hearing. Second, the ALJ found that Dr. Grabau had been afforded an opportunity to cross-examine K.R., inasmuch as his attorney deposed her for eight hours before the deposition was scheduled to be continued during the prior civil litigation. After reconsideration of the arguments pro and con, the ALJ admitted K.R.'s videotaped deposition as well as the corresponding written transcript. Over Dr. Grabau's objection, the ALJ also admitted into evidence the January 7, 2000, deposition of Dr. George Rock-well, Jr., who was recognized as an expert in general psychology. The ALJ also admitted into evidence K.R.'s patient record.
In his findings of fact, the ALJ found that Dr. Grabau was employed as a licensed psychologist at the U.S.F. Counseling Center for Human Development during the period April 11, 1995—August 7, 1995. In that capacity, Dr. Grabau saw K.R. on several occasions and established a psychologist-client relationship with her. During the initial intake evaluation at his office, Dr. Grabau defined the goals of his continued treatment as follows: to assist K.R. in stabilizing her depression, and to clarify her needs and patterns regarding her career and relationships. On completing the intake procedures, Dr. Grabau referred himself to K.R. as her treating therapist. Between their initial meeting and the end of August 1995, Dr. Grabau and K.R. met approximately 13 times. Dr. Grabau's session notes disclose that they discussed K.R.'s relationships with men generally, her relationship with her parents, and her ability to deal with her emotions, her anxiety, and her depression. K.R. related that during many of their sessions, Dr. Grabau told her she had nice legs and was very sexy. He talked to her about his personal life, including his dissatisfaction with his marriage. It appears that, at some point, he also met with K.R. outside his professional office on a purely social basis. According to K.R., Dr. Grabau told her not to tell anyone about their friendship outside the clinic. The relationship culminated in their engaging in sexual intercourse resulting in her pregnancy, which was aborted. As a result of their relationship, K.R. filed a complaint against Dr. Grabau with the Board alleging the sexual nature of their relationship.
ACHA deposed Dr. Rockwell, a retired psychologist with a specialty in school psychology, who never met Dr. Grabau or spoke to him in any capacity. From his review of the file regarding the allegations against Dr. Grabau, Dr. Rockwell concluded that a psychologist-patient relationship had been established with K.R. The expert opined that such a relationship involves trust and the patient's belief that the psychologist has the skills and knowledge to assist the patient in dealing with her or his problems. The patient develops the ability to talk to a non-critical, nonjudgmental person in an effort to help her or him deal with the problems or concerns at hand. A psychologist has the responsibility to create an emotionally safe environment for the patient, who often is made vulnerable by the need to share sensitive matters. Dr. Rockwell opined it is unlikely a patient will work with a psychologist and not form a special relationship. This special relationship places certain responsibilities upon the psychologist toward the patient, including abiding by the laws and rules relating to the practice of psychology, having respect for the patient, and keeping all matters confided by the patient confidential. Additionally, the psychologist has the responsibility to comport himself or herself in a manner that will maintain a professional relationship and distance vis-a-vis the patient. Sexual relationships between a psychologist and a patient normally are prohibited as being beyond the boundaries that should not be crossed, and it is the psychologist's responsibility to set the limits on behavior so as to prevent an inappropriate relationship from developing. This applies even if the patient initiates sexual advances. These advances would not excuse the psychologist from professional responsibility toward the patient. If the psychologist detects what appear to be inappropriate sexual advances from the patient, there is a duty to discuss this with the patient, to talk about the nature of the psychologist-patient relationship, and to explain that such a relationship is inappropriate. The constrictors on the profession are even more specific where the psychologist finds himself or herself sexually attracted to the patient. In such instances, the psychologist not only must refrain from acting on those feelings, but also should evaluate the situation to ensure that those feelings are in no way interfering with the therapeutic relationship. Dr. Rockwell could envision no situation in which it would be appropriate for a therapist to engage in sexual relations with a patient, either during or after the termination of the therapy session. Inappropriate sexual contact between a therapist and a patient can have severe and deleterious effects on the patient. These effects can include feelings of guilt and depression based on the patient's belief that the inappropriate behavior was her or his fault. The patient also might feel embarrassment and reluctance to undergo further treatment....
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