The California Board of Behavioral Sciences Seeks Biased Opinions from its Retained Experts

I recently testified on behalf of the respondent in a Board of Behavioral Science (BBS) case. The BBS regulates California Licensed Marriage and Family Therapists and Licensed Clinical Social workers.

At the administrative hearing, I discovered something shocking about the way the BBS uses their retained experts. These experts are licensed professionals who are asked to review consumer complaints along with all the investigative materials, including the written response and records of the clinician who has been accused of malpractice. Often, the facts are disputed. The complaining consumer says one thing occurred, while the responding clinician asserts an entirely contradictory set of facts. The dispute over the facts surrounding the consumer complaint will ultimately be resolved by the administrative law judge (ALJ) hearing the case.

My shocking discovery was that the BBS asks its experts only to offer a written opinion based on the information as stated in the consumer complaint. In other words, the expert is asked to write an opinion as if the consumer’s version of the facts is the only correct version. Even though the BBS’s expert reviews the clinicians response, the clinician’s records, and all the investigative materials, none of this is factored in to the expert’s opinion.

Here’s an example–oversimplified for the purpose of illustration. The consumer complained that the psychotherapist spent lengthy periods of time during each session talking about herself, in ways that had no apparent relevance to the clinical task at hand, thereby burdening the client with too much information about the clinician as well as wasting the client’s time and money. The psychotherapist absolutely denied this accusation and backed up her denial with detailed case notes that could only have been written had the psychotherapist been listening carefully to the client–rather than talking about herself–during the session.

The two versions of the facts were miles apart. Both could not be true. Obviously, one of the parties was not providing an accurate account of the facts. Assuming it is possible that either side of the story could be the correct one, why does the BBS only ask it’s experts to provide an opinion based on the consumer’s set of facts?

One possible explanation is that the BBS, upon receiving a complaint, would wish to determine whether the complaint is worthy of an investigation. Under that circumstance, it would appear perfectly reasonable to say to the Board’s expert, “We want to know whether to take this to an investigation. Assuming the consumer is telling the truth, has the standard of care been violated?” At the early stage of a complaint, it makes perfect sense for the BBS to seek guidance as to whether the complaint is worth investigating. Thus, if the consumer’s own version does not describe a breach of the standard of care, then no investigation would be necessary.

However, in the case in which I testified, the BBS only called in the expert after the investigation had been completed, after the responding clinician had provided her version of the facts, and after the clinician’s case notes had become part of the investigatory file.

It would seem that, at this point, the BBS would want an objective opinion by their expert. Since the expert does not know which version of the facts is the correct one, why wouldn’t the BBS ask the expert for three opinions in order the achieve objectivity: 1. an opinion predicated on the consumer’s version of the facts, 2. an opinion predicated on the clinician’s version of the facts, and 3. an opinion as to any information in the file that leads to professional conclusions regarding which party, consumer or clinician, is providing an accurate account of the facts.

Why would the BBS prefer a one-side, biased opinion from their expert prior to taking a case to an administrative hearing? The reasoning is unclear, although such a practice by the BBS only reinforces the notion that it’s enforcement policies are so biased in favor of the consumer that they do not even wish to consider the clinician’s side of the story. Certainly, this manner of employing testifying experts does nothing to increase the clinician’s confidence in the objectivity of their licensing board.