Non-licensee may use “psychologist” title—if not soliciting patients

A January 15 decision by the United States Court of Appeals prevents the Texas State Board of Examiners of Psychologists from stopping unlicensed members of the public from representing themselves as psychologists and even giving advice, as long as they do not do so to solicit patients (Serafine v. Spinks, 810 F.3d 854 (2016)). The decision was made in a suit brought by a politician whose website refers to her as a psychologist.

In her 2010 campaign for the Texas Senate, Mary Serafine described herself, both on her website and in her campaign filings, as an attorney and psychologist. Although Serafine completed a four-year post-doctoral fellowship in psychology and even taught psychology at Yale and Vassar, she is not a licensed psychologist in any state.

Due to that fact, the board sent Serafine a series of letters ordering her to stop referring to herself as a psychologist and to refrain from offering “psychological services.” The board threatened prosecution.

Serafine complied with the request, removing the word “psychologist” from her website. However, she also brought a suit against the board claiming that the Texas Psychologists’ Licensing Act infringed her constitutional rights to free speech and equal protection. After a federal district court rejected her claims, Serafine appealed, and the case went up to the Fifth Circuit.

Although the board claimed that its restriction of the use of the word “psychologist” was incidental to its regulation of the profession, the justices disagreed.

Citing Supreme Court doctrine on the regulation of commercial speech, Judge Jerry Smith, writing for the court, noted that, while such regulation was permissible in the context of a professional-client relationship, “any interest the government can claim in protecting clients from manipulation or exploitation by a psychotherapist fails when the psychotherapist is no longer speaking to the client in her capacity as such . . . The professional speech doctrine is properly limited to the actual practice of the profession.”

Serafine’s reference to herself as a “psychologist” on her political website was not intended to attract clients and, therefore, was not commercial speech and was outside the scope of the board’s regulation, the court noted.

Assessing the constitutionality of the Texas statute used by the board when it threatened to prosecute Serafine, which states that the representation of oneself to the public as a psychologist is considered the practice of psychology, Judge Smith noted that, as a content-based restriction on political speech, the law was subject to a relatively-strict “exacting scrutiny” standard and must be “narrowly tailored to serve an overriding state interest.”

“Though protecting mental health may be a compelling interest,” Smith wrote, “the state has not narrowly tailored its laws to further that interest where it regulates outside the context of the actual practice of psychology.” The board “stepped far beyond the bounds of narrow tailoring” when it sent its letters to Serafine. The statute, as applied to her political speech, was unconstitutional.

In her appeal, Serafine also argued that the board’s definition of “practice” was overbroad because it included a significant amount of advice offered outside the purview of traditional psychological practice, including services provided by Alcoholics Anonymous, Weight-Watchers, and several other professions and groups who remediate various “psychological, emotional, mental, interpersonal, learning and behavioral disorders.”

The statute, the court agreed, was overbroad and allows board officials too much discretion in determining what is prohibited. “The ability to provide guidance about the common problems of life—marriage, children, alcohol, health—is a foundation of human interaction and society, whether this advice be found in an almanac, at the feet of grandparents, or in a circle of friends. There is no doubt that such speech is protected by the First Amendment.” Texas’s statutory definition of the practice of psychology was, therefore, in contravention of the First Amendment and invalid.

Having ruled the statute unconstitutional, the court remanded the case for further proceedings.

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Section 501.003(c) of the Texas Psychologists’ Licensing Act, defining “practice of psychology”:

1) includes providing or offering to provide services to an individual or group, including providing computerized procedures, that include the application of established principles, methods, and procedures of describing, explaining, and ameliorating behavior;

(2) addresses normal behavior and involves evaluating, preventing, and remediating psychological, emotional, mental, interpersonal, learning, and behavioral disorders of individuals or groups, as well as the psychological disorders that accompany medical problems, organizational structures, stress, and health;

(3) includes:

(A) using projective techniques, neuropsychological testing, counseling, career counseling, psychotherapy, hypnosis for health care purposes, hypnotherapy, and biofeedback; and

(B) evaluating and treating mental or emotional disorders and disabilities by psychological techniques and procedures; and

(4) is based on:

(A) a systematic body of knowledge and principles acquired in an organized program of graduate study; and

(B) the standards of ethics established by the profession.