ALJDEC

01A-20010002-BHE · Board of Behavioral Health Examiners · 2002-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 12, 2002. APPEARANCES: The Board of Behavioral Health Examiners was represented by Marc Harris, Assistant Attorney General. Sharon Katz represented herself. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this contested matter, the Board of Behavioral Health Examiners(hereinafter the Board) seeks sanctions against the license of Respondent Sharon Katz (hereinafter Katz), alleging violations of A.R.S. §32-3251 (9) (i) (committing an act of unprofessional conduct by engaging in any conduct or practice which is contrary to recognized standards of ethics in the behavioral health profession) and A.R.S. §32-3251 (9) (j) (any conduct, practice, or condition which impairs the ability of the certified behavioral health professional to safely and competently practice his profession). Based on the evidence adduced at the hearing, the following findings of fact, conclusions of law, and recommended decision are made. FINDINGS OF FACT 1. Katz became a certified social worker on March 1, 1994 after having applied for certification in July, 1993. 2. Prior to and immediately after becoming a certified social worker, Katz had served as a case manager to E.G. beginning sometime in 1992. Katz came into this role as an employee of the Arizona Center for Clinical Management. As case manager to E.G., Katz’ job was to follow up on services to be provided to E.G. and to check on E.G. when she was in the hospital. In this capacity, Katz had access to both personal and confidential information about E.G. 3. Katz eventually began to have personal feelings for E.G., sometime during early 1994. Katz and E.G. entered into a personal relationship at approximately the time that Katz became certified in 1994. 4. Because of concerns about the ethical propriety of having an intimate personal relationship with E.G., Katz terminated her professional relationship with E.G. in April, 1994, approximately one month after beginning her relationship with E.G. 5. At the hearing in this matter, Katz testified that she was aware of the potential ethical impropriety of entering into a personal relationship with clients or former clients. As a result, after she terminated her professional relationship with E.G., she sought direction from the Board as to ethical approaches to the situation of maintaining a personal relationship with E.G. despite the fact that E.G. was a former client. She was advised by the Board at that time that the Board could not give her any direction as to how to proceed. Katz also indicated that she recognized that she must evaluate whether there was a risk of harm or not to E.G. in continuing the personal relationship. To this end, she consulted a peer who also possessed a Masters in Social Work. She may have also consulted a psychiatrist who was familiar with E.G. She apparently also spoke to Anne Fisher, another Board certified professional who was, at that time counseling E.G. She also spoke to her father, a psychologist, about the situation. Katz conceded at the hearing that consulting Fisher and her father did not constitute an appropriate source of seeking independent professional judgment to gauge the propriety of having a relationship with E.G. following the termination of their professional relationship. 6. Katz’ also testified that she was very aware that an imbalance of power could exist in the relationship due to her former position as E.G.’s case manger and that such an imbalance of power could lead to exploitation of E.G. Katz further testified that, in accordance with the then existing ethical requirements of the Code of Ethics of the National Association of Social Workers (hereinafter NASW), she considered at least four factors in coming to the conclusions that she should continue to have a personal relationship with E..G. In addition to the considerations described in Findings of Fact Five above, Katz also considered E.G.’s capacity to understand the situation regarding the relationship. Katz stated that she found E.G. to be very independent in her thinking and capable of making informed decisions. To this end, Katz indicated that she spoke with E.G. about the imbalance of power in the relationship and that Katz and E.G. continued to discuss this imbalance over the course of their personal relationship. Katz indicated that she had a very open relationship with E.G. Katz indicated that the purpose of having the open relationship was to protect E.G. Katz indicated that she was aware that keeping the relationship a secret could provide a greater chance for Katz’ exploitation of E.G. Katz testified that she also took into consideration the applicable ethical considerations contained in the ethical considerations promulgated by NASW. 7. At the hearing, the Board argued that Katz fails to this day to appreciate that the ethical considerations promulgated by the NASW concern not only the actual harm that could occur to a former client in having a personal relationship with that client, but also the potential harm that could occur to a former client. This point was brought forth through the testimony of Barbara Downey Thompson, a certified independent social worker. Katz’ testimony contradicts this position. Katz’s testimony at the hearing clearly reveals that she does appreciate the ethical considerations at stake in this case and that those considerations fully contemplate that it is not just the actual harm but also the risk of harm to the client that must also be considered by the professional. Katz’ testimony demonstrates that she has and continues to take into account the potential risk of harm to E.G. in their apparently ongoing relationship. 8. The board also argued that Katz exploited her professional relationship with E.G. for personal advantage. The Board points to the fact that Katz terminated her professional relationship with E.G. in order to pursue a personal relationship and she immediately entered into the personal relationship without the benefit of a “cooling off” period. Ms. Thompson testified that it is prudent to have a cooling off period whereby the professional “stands back” to see if the feelings for the client will abate and the professional takes time to assess the situation. Katz agrees that, in hind sight, it might have been more prudent to engage in a cooling off period, and further indicates that she would do so now if she found herself in a similar situation. Katz does not believe, however, that her failure to undertake a cooling off period in this case amounted to a violation. Furthermore, as Katz correctly notes, the NASW code considerations did not at that time require a “cooling-off” period.[1] 9. Ms. Thompson further testified at the hearing that the code’s restrictions on dual relationships permits a decision to be made by the professional. There is no flat prohibition on engaging in a dual relationship. Ms. Thompson further indicated that it is better for the professional to set a “firm boundary” of not having a relationship with a present or former client. CONCLUSIONS OF LAW 1. In this contested agency action case, the Board has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 2. Arizona Revised Statute § 32-3281 provides that the Board may, after hearing, issue an order of censure, impose a civil penalty, impose probation or revoke a license upon a determination that a professional has engaged in “unprofessional practice.” ‘Unprofessional practice” includes (1) “Any conduct or practice which is contrary to recognized standards of ethics in the behavioral health profession or which constitutes a danger to the health, welfare or safety of a client” (A.R.S. § 32-3251 (9) (i)) and (2) “Any conduct , practice or condition which impairs the ability of the certified behavioral health professional to safely and competently practice his profession” (A.R.S. § 32-3251 (9) (i)) 3. The 1993 version of the NASW Code of Ethics (which the parties agree is the version of the code applicable to the conduct at issue here) provides in pertinent part that: II. The Social Worker’s ethical responsibility to Clients F. Primacy of Client’s Interests—the social worker‘s primary responsibility is to clients. * * * 2. The social worker should not exploit relationships with clients for personal advantage. * * * 4. The social worker should not condone or engage in any dual or multiple relationships with clients or former clients in which there is a risk of exploitation of or potential harm to the client. The social worker is responsible for setting clear, appropriate, and culturally sensitive boundaries.

4. Here, taking into consideration the language of the NASW Code of Ethics, the Board has failed to demonstrate by a preponderance of the evidence that Katz violated A.R.S. § 32-3251 (9)(i). The language of the 1993 code does not on its face prohibit dual relationships in all circumstances. Nor does it mandate a “cooling-off” period. Rather, it requires , as the Board’s expert agreed, an assessment by the professional of whether there is risk of exploitation of or potential harm to the client or former client. In this case, Katz took reasonable steps to identify whether any potential or actual risk of harm or exploitation existed. She weighed not only the advise of other professionals, but also the requirements of the ethical code and E.G’s ability to comprehend the situation. She also advised E.G. about the power imbalance in the relationship and maintained the relationship in an open manner. There has been no evidence presented to show that Katz did not properly weigh the considerations required by the ethical code. More importantly, Katz’ testimony demonstrates that in this case, no actual harm or exploitation or risk of harm or exploitation exists. Thus, there has not been a sufficient showing by the Board that Katz violated the ethical rules applicable at the time she engaged in the conduct which is the subject of this hearing. 5. Likewise, the Board has failed to sustain its burden with respect to the alleged violation of A.R.S. § 32-3251(9)(j). The evidence demonstrates that Katz reflected upon the proper and appropriate ethical considerations at the time that she acted. Her testimony at the hearing regarding her understanding of the potential dangers of maintaining dual relationships and her understanding that not only actual but potential harm and potential for exploitation must be considered does not demonstrate that she suffers from a condition that impairs her ability to practice in a safe and competent manner. At worst, her conduct in 1994 was a product of unclear ethical requirements. There has been no showing that her conduct in 1994 violated any ethical conduct and there has most certainly been no showing that she is incapable or unwilling to apply appropriate standards to those clients she comes into contact with in the future. The mere fact that she engaged in a dual relationship, in light of the language of the ethical code applicable at the time Katz engaged in the conduct at issue has not been shown to be sufficient in and of itself to constitute an ethical violation. Accordingly, the Board has failed to meet its burden to show the violation of A.R.S. § 32-3251(9)(j). / / /

RECOMMENDED DECISION Based on the foregoing, it is recommended to the Board that no sanctions be imposed against Katz’ professional license and that the complaint for disciplinary action in this matter be dismissed as the Board has failed to carry its burden to demonstrate that Katz violated applicable statute or regulation. Done this day, March 4, 2002.

______________________________________ Gregory L. Hanchett Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002 to:

Board of Behavioral Health Examiners Debra Rinaudo ATTN: Patricia Reynolds 1400 West Washington, Room 350 Phoenix, AZ 85007

By ___________________________

----------------------- [1] It is the undersigned’s recollection that the parties presented evidence at the hearing that the updated version of the NASW code now makes reference to this cooling-off period. As the parties agree, however, at the time of the conduct which is the subject of the instant disciplinary proceeding, no such “cooling-off” period was required.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826