Towbin v. Board of Examiners of Psychologists

• Decision Date: 23 July 2002
• Docket Number: (AC 20944)
• Court: Connecticut Court of Appeals
• Parties: ALAN P. TOWBIN v. BOARD OF EXAMINERS OF PSYCHOLOGISTS

71 Conn. App. 153

801 A.2d 851

ALAN P. TOWBIN v. BOARD OF EXAMINERS OF PSYCHOLOGISTS

(AC 20944)

Appellate Court of Connecticut.

Argued May 1, 2002.

Officially released July 23, 2002.

Lavery, C. J., and Schaller and West, JS.

Patricia A. King, for the appellant (plaintiff).

Paul J. Lahey, assistant attorney general, with whom were Henry A. Salton, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (board).

Opinion

WEST, J.

The plaintiff, Alan P. Towbin, appeals from the judgment of the trial court dismissing his administrative appeal from the decision of the defendant board of examiners of psychologists (board), which sanctioned him for negligent, incompetent or wrongful conduct in violation of General Statutes § 20-192.¹ On appeal, the plaintiff raises a number of claims that fall within several different categories, namely, that the court improperly dismissed his appeal because the board failed to base several of its findings on substantial evidence, sanctioned him where only one member of its hearing panel had heard witnesses testify, violated his constitutional rights to due process and to fundamental fairness, and imposed a penalty that is excessive and unsupported by good cause. We affirm the judgment of the trial court.

The record discloses the following procedural history and facts. In 1991, a woman² (complainant) filed a complaint against the plaintiff with the department of public health services (department).³ At the time, the plaintiff was a licensed psychologist providing psychotherapy services. The department investigated the complaint and concluded that there was probable cause to believe that the plaintiff had violated § 20-192. In 1994, the department presented the board with a statement of charges against the plaintiff.⁴ A hearing panel consisting of one professional and two public members of the board⁵ thereafter held a five day contested hearing in accordance with General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act (UAPA). The plaintiff was represented by counsel and given the opportunity to respond to the charges, to cross-examine witnesses, to present evidence, including his own testimony, and to present argument on all issues involved in the case.

In 1996, the board rendered a decision, concluding that the department had proved that the plaintiff had violated the standards of professional conduct and § 20-192 by engaging in dual relationships with the complainant. In addition to a professional relationship, the plaintiff and the complainant had social and sexual relationships. In response to the decision, the plaintiff filed an appeal in the Superior Court, pursuant to General Statutes § 4-183 (a), and petitioned the board to reconsider its decision. In support of his appeal and his petition, the plaintiff claimed that the decision was not supported by expert opinion evidence and that the board had no authority to require that the plaintiff receive psychotherapeutic treatment as a condition of probation. The board, on its own motion and on the basis of a petition by the plaintiff, granted the plaintiffs request for reconsideration.⁶

On May 13, 1997, the board ordered the record opened and informed "the parties that a majority of the [panel] who will render the reconsidered decision in this matter are psychologists and that the [panel's] experience, technical competence and specialized knowledge will be used in the evaluation of the evidence in accordance with [General Statutes] § 4-178 (8). Any motions relating to or resulting from this order must be received no later than May 30, 1997."

A reconfigured hearing panel, the majority of which were professional members of the board, reconsidered the department's charges against the plaintiff. Due to the panel reconfiguration, the board offered the plaintiff the opportunity to present additional expert testimony as to the standard of professional care of psychologists applicable to the facts of this case. The plaintiff took advantage of the opportunity and presented the testimony of two expert witnesses at the continued hearing. The panel, however, refused to let the plaintiff testify at the continued hearing. All new members of the panel received copies of the entire record and attested that they either had heard or had read the entire record.

On May 26, 1998, the board issued a proposed decision and gave the parties an opportunity to file exceptions and briefs, and to present oral argument with regard to the proposed decision. The board subsequently issued its decision on June 12, 1998. The board stated that the decision was based on the record and on the specialized knowledge of the board. The plaintiff appealed to the Superior Court.

The court concluded that the board properly found, on the basis of the evidence presented and the expertise of the board's professional members, that the plaintiff had provided professional psychological care and treatment to the complainant's older son, who was then a minor, between February and June, 1984. The boy stopped treating with the plaintiff in June, 1984. In March, 1985, another psychologist who was then treating the complainant's older son, asked the plaintiff to serve as a consultant at a meeting with the complainant, her husband and her two sons.

The plaintiff and the complainant thereafter developed and engaged in social and sexual relationships that lasted from about October, 1985, to March, 1986. There was substantial evidence that the plaintiff and the complainant stayed together in a Branford motel and in a Boston hotel. They also engaged in sex several times a week, sometimes in the plaintiffs office. The plaintiff presented the complainant with gifts. Prior to the termination of their social and sexual relationships, the complainant arranged for the plaintiff to conduct psychological testing of her younger son. After the testing took place, the plaintiff met with the complainant to discuss treatment for the younger son. This meeting took place within a few days of the plaintiffs and the complainant's termination of their nonprofessional relationships. The board found that care and treatment by a psychologist includes evaluation, diagnosis and involvement in subsequent psychotherapy or treatment or both. The board concluded that the plaintiffs contact with the complainant's sons therefore constituted care and treatment.

At the original hearing, David Greenfield, a psychologist, gave expert testimony as to the standard of professional care of psychologists. Greenfield opined, and the board agreed, that dual relationships are relationships where the contractual psychologist-patient relationship is complicated by adding other relationships that are not specifically related to therapy. Psychologists are ethically bound to avoid dual relationships, as such relationships could impair their judgment or increase the risk of exploitation of clients, patients or consumers.

Greenfield also opined, and the board agreed, that parents of minors being treated by a psychologist are consumers and that the plaintiff was ethically bound to avoid dual relationships with the complainant. Greenfield further opined, and the board agreed, that the plaintiff engaged in dual relationships with the complainant, including but not limited to social, friendship and sexual relationships. The plaintiff thereby violated the ethical standards of care in place for psychologists practicing in Connecticut in 1985 and 1986. The violation occurred despite the fact that the dual relationships took place after the complainant's older son stopped treating with the plaintiff and after the young man had reached the age of majority.

The board credited the complainant's testimony that she and the plaintiff had had a sexual relationship and found that the plaintiffs explanation of the nature of his relationships with the complainant was not credible. In concluding that the plaintiff violated § 20-192, the board found that the plaintiffs "conduct demonstrates a serious failure of judgment, as was also found by [the plaintiffs] expert, Ronald Ebert, [a psychologist]. [The plaintiff] continues to deny any wrongdoing and has offered an implausible explanation. Dr. Ebert acknowledged [the plaintiffs] denial of a sexual relationship with [the complainant], but conceded that if such relationship had occurred, it would have been even more reflective of poor judgment on the part of the [plaintiff]."

The board also found that with limited exceptions, "permitting [the plaintiff] to engage in any further treatment or therapeutic relationships as a psychologist, would present a danger to the public at this time. The [board found] that the [plaintiff] engaged in negligent, incompetent or wrongful conduct as a psychologist for the reasons" stated.⁷

The board ordered that the plaintiff be placed on probation indefinitely with the following restrictions and conditions. While the plaintiff is on probation, (1) he shall not render treatment to patients or clients in any setting except nursing homes, where he may provide individual and group therapy to nursing home patients and consult with nursing home staff regarding psychological issues, (2) after being on probation for at least one year, the plaintiff may ask the board to withdraw or to modify the terms of his probation, (3) in asking the board to withdraw or to modify the terms of his probation, the plaintiff may employ, but is not required to employ, the following procedure: (a) submit to a psychological evaluation conducted by an independent psychologist approved by the department; (b) if the independent psychologist determines that the plaintiff would benefit from individual psychotherapy, the plaintiff should engage in individual psychotherapy on a clinically recommended schedule for at least one year of his probation; and (c) prior to seeking the...