Mississippi State Bd. of Psychological Examiners v. Hosford
| Decision Date | 29 April 1987 |
| Docket Number | No. 56540,56540 |
| Citation | 508 So.2d 1049 |
| Parties | MISSISSIPPI STATE BOARD OF PSYCHOLOGICAL EXAMINERS v. Robert L. HOSFORD. |
| Court | Mississippi Supreme Court |
Edwin Lloyd Pittman, Atty. Gen. by John T. Kitchens, Sp. Asst. Atty. Gen., Jackson, for appellant.
Dale Hubbard, Ferrell & Hubbard, Jackson, for appellee.
Before WALKER, C.J., and ROBERTSON and ANDERSON, JJ.
I.
This case presents sensitive questions regarding the authority of a state-created board, charged with the governance of a Substantially, the case involves a charge that a psychologist disclosed patient confidences without the patient's consent and in violation of his profession's confidentiality principles. The state board found that the violation had occurred and suspended the psychologist's license for ninety days. The Chancery Court reversed. As we regard the action taken within the authority and discretion of the Board, we reverse and reinstate the order of suspension.
learned profession, to interpret the canons of ethics of that profession and in accordance therewith to discipline a member of that profession. The case also presents questions regarding the scope of appellate judicial review of such disciplinary action.
II.
A.
Robert L. Hosford, Ph.D., holds a license issued by the Mississippi State Board of Psychological Examiners to engage in the professional practice of psychology in this state. Dr. Hosford maintains his offices in Jackson, Mississippi, and exercises his license by practicing in the field of clinical psychology. Dr. Hosford was the Respondent below and is the Appellee here.
The Mississippi State Board of Psychological Examiners (the Board) has been organized and exists via statutory enactment. Miss.Code Ann. Secs. 73-31-5, et seq. (Supp.1980). At all times relevant hereto the Board was authorized and empowered to conduct hearings upon complaints seeking the disciplining of psychologists it has licensed and, where violation be found, to revoke or suspend such license. Miss.Code Ann. Secs. 73-31-7(b)(4), (5) and 73-31-21 (1982). The Board is the Appellant here.
This case has its genesis in the psychologist-patient relationship between Dr. Hosford and Patricia F. Lindsey and her former husband, Jimmy G. Lindsey. That relationship came into being on December 31, 1981, when the Lindseys, then husband and wife, consulted Dr. Hosford in his professional capacity and sought counseling and advice regarding difficulties they were experiencing in their marital relationship. These consultations continued for a little over two months. During their course, from time to time Patricia Lindsey would meet with Dr. Hosford privately, at other times Jimmy Lindsey would meet with Dr. Hosford privately, and on still other occasions the Lindseys would jointly consult with Dr. Hosford.
In March of 1982 the Lindseys' marriage was clearly on the rocks as Patricia filed in the Chancery Court of Madison County, Mississippi, an action for divorce. Of immediate concern was the temporary custody of the parties' six-year-old son, Jon D. Lindsey. A temporary custody hearing was scheduled in Chancery Court for March 19, 1982. At that hearing Jimmy Hosford submitted an affidavit made by Dr. Hosford, dated March 18, 1982, setting forth the background of his professional relationship with the Lindseys and giving his opinion that temporary custody of the child should be placed with his father, Jimmy G. Lindsey. The giving of this affidavit has given rise to the present proceedings.
At some time prior to the temporary hearing Dr. Hosford talked with the attorney representing Jimmy G. Lindsey and furnished certain information to the attorney who then prepared a draft of the proposed affidavit. Dr. Hosford then reviewed the affidavit and made editing changes and corrections. The affidavit was then retyped in final form and was executed by Dr. Hosford on March 18, 1982, in the presence of a notary public.
In relevant part the affidavit states that Dr. Hosford counseled with Patricia Lindsey and Jimmy Lindsey both together and separately concerning their personal relationship as well as their respective relationships with their son; that during the course of these consultations Dr. Hosford reached conclusions regarding the "psychological traits of the parties including those which have a bearing on or relate to their respective concepts of parenthood in general and their respective responsibilities and roles as parents to their child in particular." The affidavit continued, making clear that the opinion to be given was "based upon his Patricia Lindsey did not consent to the giving of this affidavit. As the point is of some moment, we note the following colloquy between Dr. Hosford and counsel at the hearing before the Board.
[Dr. Hosford's] counseling with the parties, his observations of them...." In the affidavit Dr. Hosford then gave rather specific opinions regarding the parenting skills of the two parties, the details of which need not be recounted, except to say that the opinion of Patricia F. Lindsey was quite unfavorable. In the final analysis, Dr. Hosford gave his "professional opinion that the interest and welfare of the child will be best served and promoted by placing his care, custody and control with Jimmy G. Lindsey,...."
Q. Did you ever at any time call Mrs. Lindsey and ask her whether or not it was all right for you to give this affidavit?
A. I did not.
Q. Did Mrs. Lindsey ever authorize you to give this affidavit?
In the course of her testimony before the Board, Patricia Lindsey read the affidavit and stated that it was based upon information she had given Dr. Hosford in the course of her professional relationship with him and that she had not authorized him to release this information. If we understand the record correctly, Dr. Hosford stipulated before the Board that he "did not receive a signed waiver of the psychologist-patient privilege." 1
On March 9, 1983, Patricia F. Lindsey filed with the Mississippi State Board of Psychological Examiners a complaint against Dr. Robert L. Hosford wherein she charged Dr. Hosford with unauthorized, unprofessional and illegal disclosure of matters communicated to him and protected from disclosure by the psychologist-patient privilege. The matter came on for hearing before the Board on November 30, 1984. At that hearing Patricia and Dr. Hosford appeared personally and testified. Patricia established her prima facie case as recited above. Dr. Hosford defended on the alternative grounds that he disclosed no matters the confidentiality of which was protected or, in the alternative, that there was a "clear danger" to the child which created an exception to his profession's confidentiality principle and necessitated disclosure.
In due course on January 22, 1985, the Board rendered its final decision finding that Dr. Hosford had violated Principle 5 of the American Psychological Association's Ethical Principles of Psychologists 2 and Thereafter Dr. Hosford perfected his appeal to the Chancery Court of the First Judicial District of Hinds County, Mississippi. On the date of the hearing thereof, May 10, 1985, Dr. Hosford presented a motion to dismiss joined by Patricia Lindsey and claimed that the decision of the Board had become moot by virtue of Patricia's withdrawal of her claim. On the same day, apparently on the authority of the aforesaid motion and without examination of the record of proceedings before the Board, and ordered Dr. Hosford's license reinstated and all proceedings pertaining to the matter expunged.
further that this violation could not be excused under the clear danger principle, the Board finding "that the clear danger exception to Principle 5 pertains to only life and death situations." The Board exonerated Dr. Hosford from violation of the Mississippi statutory psychologist-patient privilege. Miss.Code Ann. Sec. 73-31-29 (1972). By reason of Dr. Hosford's violation of APA Principle 5, the Board ordered Dr. Hosford's license to practice psychology in the State of Mississippi suspended for a period of ninety days
The Board now appeals to this Court and asks reinstatement of its order of suspension.
III.
Dr. Hosford raises a number of pre-merits points in support of affirmance. First, he argues that the Board, as a quasi-judicial body, has no standing to prosecute this appeal. The point is without merit. A statutorily created board governing the practice of members of a profession in this state, when faced with an adverse decision of a Chancery Court via appellate review of the Board's action regarding one subject to the Board's authority, has clear standing to prosecute a further appeal to this Court. State Board of Psychological Examiners v. Coxe, 355 So.2d 669 (Miss.1978) (); Mississippi Real Estate Commission v. Ryan, 241 So.2d 667, 668 (Miss.1970); Mississippi State Board of Dental Examiners v. Mandell, 198 Miss. 49, 64, 21 So.2d 405, 498 (1945).
Dr. Hosford next argues that this matter is moot in that Patricia Lindsey has withdrawn her complaint against Dr. Hosford. She couples this with her argument that the Board has no standing to proceed. Patricia sought to withdraw her complaint after final decision by the Board, after that decision had been appealed to the Chancery Court, after she had settled her civil action 3 against Dr. Hosford and after she had recanted her testimony before the Board. In these circumstances, we consider her withdrawal ineffective to preclude the Board from proceeding further.
The Board's authority in such a context is analogous to that of the State of Mississippi when complaint is made by a citizen that someone has committed a crime. It may well be that as time goes by the complaining party loses interest in the matter or for other reason wishes to withdraw the charge. The State nevertheless has an interest in the...
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