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Licensee has no right to challenge order for mental health evaluation

Licensed psychologists have no inherent right to challenge state psychology board orders that they undergo a mental health evaluation, the Court of Appeals of California for the Third District held November 21.

(Fettgather v. Board of Psychology)

The state has a compelling interest in making such orders in order to ascertain whether a licensee was suffering from an impairment resulting from mental illness, the court said. It noted that the appropriate challenge to such an evaluation would be to question its substance if it were used against a licensee.

After the California Board of Psychology began investigating psychologist Robert Fettgather in 2011, he repeatedly refused to cooperate with investigators until finally, in the fall of that year, the board issued an order to Fettgather to submit to a mental health evaluation.

After Fettgather skipped that as well, the board filed charges against him for failing to obey its order. Following a hearing, the board ordered Fettgather’s license revoked, and he appealed, with the case eventually reaching California’s Court of Appeals for the Third District.

In his appeal, Fettgather argued that the decision of the administrative law judge hearing his case to deny his attempt to challenge the board’s order violated his constitutional rights to due process. His right to practice his profession, Fettgather claimed, was impinged on by the board’s order and subsequent revocation without allowing him to challenge that order.

Under California law, the board is authorized to order a licensee to undergo a physical or psychological examination when it believes the licensee may be impaired. Failure to comply with such an order is grounds for a suspension or revocation. No explicit statutory or regulatory standard exists to create a threshold limitation on the board’s power to order an examination, and the administrative law judge hearing Fettgather’s case did not allow him to present any evidence to challenge the examination order.

The Court of Appeals, in an opinion by Justice Harry Hull, Jr., disagreed with Fettgather’s argument. “While Fettgather’s interest in his license was ultimately implicated by the proceedings to revoke for failure to comply,” Justice Hull wrote, “we find the appropriate balance between the private and public interest is struck through requiring Fettgather to submit to the . . . mental examination and challenge the results of that examination only after a formal accusation alleging mental illness is brought.”

“The issuance of the order itself,” continued the judge, “does not impact Fettgather’s right to practice . . . and his right to privacy implicated by that order is adequately protected by the statutory mechanism that keeps the investigation confidential up until the filing of an accusation charging incompetency on the merits.”

Additionally, noting that Fettgather had failed to cooperate with investigators at almost every step of the disciplinary process, Justice Hall wrote that those repeated refusals “undermine[ed] his claim that he was deprived of due process of law.”

Justice Hall also noted that the governmental interest in requiring compliance with such orders was compelling, as the authorizing legislation “was enacted for the express purpose of creating a mechanism to ensure that the licensing agency had the power to revoke the license of a healing arts professional who was mentally ill . . . The actual ability to investigate whether the medical professional is indeed mentally ill is paramount to that call.”

“The government’s interest would be severely impacted,” he wrote, “if licensees were permitted to delay investigations the licensee believed were unwarranted because it would unnecessarily delay the investigation and ultimate determination of mental fitness. Requiring compliance with a[n] . . . order, in fact, not only streamlines the procedure, but also protects a licentiate from groundless charges because it allows the board to initially and . . . confidentially determine that mental state prior to the bringing of any accusation to revoke a license.”

Having rejected Fellgather’s arguments, the court upheld the decision of the board.