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13F-1228-SYA · Board of Psychologist Examiners · 2014-06-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In The Matter Of: No. 13F-1228-SYA

Anthony H. Luick, Ph.D. ADMINISTRATIVE Holder of License No. 748 LAW JUDGE DECISION For the Practice of Psychology In the State of Arizona Respondent.

HEARING: May 20, 2013, and May 21, 2013, with the record held open until June 7, 2013. APPEARANCES: Respondent was represented by Tom Slutes. The Arizona Board of Psychologist Examiners was represented by Assistant Attorney General Jeanne Galvin. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. The Arizona Board of Psychologist Examiners (the Board) has the authority to regulate and control the licensing of psychologists in the State of Arizona pursuant to A.R.S. § 32-2061 et seq. The Board also has the authority to impose disciplinary sanctions against the holders of licenses for unprofessional conduct under A.R.S. § 32-2081. 2. Respondent Anthony H. Luick, Ph.D., was licensed as a psychologist in the State of Arizona in 1978. 3. On November 5, 2002, the Board entered a Decree of Censure and Order for Civil Penalty against Respondent due to improper billing and failure to maintain adequate records. 4. On July 16, 2012, the Board received a complaint from Linda Salik, formerly known as Linda Rakel, alleging that Respondent had engaged in an

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 inappropriate relationship with her son, R.L., and provided legal advice to help R.L. avoid punishment for a crime he had committed. 5. The Board referred the matter to the Office of Administrative Hearings, an

independent agency, for an evidentiary hearing.

6. The Board alleged in the Complaint and Notice of Hearing that

Respondent committed unprofessional conduct as defined by A.R.S. § 32-2061(13)(e);1

A.R.S. § 32-2061(13)(o);2 and A.R.S. § 32-2061(13)(dd),3 and by violating the Ethical

Principles of Psychologists and Code of Conduct of the American Psychological

Association, as adopted by the Board in A.A.C. R4-26-301,4 and as set forth in Ethical

Standard 3.05 relating to multiple relationships.5

A.R.S. § 32-2061(13)(e) defines “unprofessional conduct” to include “[g]ross negligence in the practice of a psychologist.” A.R.S. § 32-2061(13)(o) defines “unprofessional conduct” to include “[p]roviding services that are unnecessary or unsafe or otherwise engaging in activities as a psychologist that are unprofessional by current standards of practice.” 3 A.R.S. § 32-2061(13)(o) defines “unprofessional conduct” to include “[v]iolating an ethical standard adopted by the board.” A.A.C. R4-26-301 provides: A psychologist shall practice psychology in accordance with the ethical standards contained in standards 1.01 through 10.10 of the "Ethical Principles of Psychologists and Code of Conduct" adopted by the American Psychological Association effective June 1, 2003, the provisions of which are incorporated by reference. The Complaint and Notice of Public Hearing incorrectly identified A.A.C. R4-26-301 as A.A.C. R4-26- 303. Respondent did not raise any issue regarding notice of the allegation. 5 Ethical Standard 3.05 of the Ethical Principles of Psychologists and Code of Conduct adopted by the American Psychological Association effective June 1, 2003, provides:

3.05 Multiple Relationships (a) A multiple relationship occurs when a psychologist is in a professional role with a person and (1) at the same time is in another role with the same person, (2) at the same time is in a relationship with a person closely associated with or related to the person with whom the psychologist has the professional relationship, or (3) promises to enter into another relationship in the future with the person or a person closely associated with or related to the person. A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist's objectivity, competence or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists. Multiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical. 7. A hearing was held on May 20, 2013, and May 21, 2013. The Board submitted 13 exhibits and presented the testimony of four witnesses:6 (1) Respondent, (2) Ms. Salik, (3) Megan Martin, Deputy Director of the Board, and (4) Dr. David

McPhee, Board Consultant. Respondent submitted two exhibits, testified on his own

behalf, and presented the testimony of two witnesses: 1) Dr. Ralph H. Wetmore, II, and

(2) Dr. Bernard Engelhard.

HEARING EVIDENCE

8. Respondent began seeing R.L. as a patient in September 2011. R.L. had

issues with drug use, academics, and problems with his parents including Ms. Salik’s

alcoholism. At the time, R.L. was 17 years old. Ms. Salik refused to pay towards the

therapy because Respondent was not a provider covered by R.L.’s insurance.

9. After three sessions, R.L. withdrew from treatment for financial reasons.

9. In March 2012, R.L. was found to be in possession of marijuana in his car

at school. R.L. was not arrested at the time of the incident because R.L. was less than one month away from his 18th birthday, but the officer advised R.L. that after he turned 18, R.L. should turn himself in to be charged as an adult. 10. R.L.’s father determined R.L. should return to therapy with Respondent. 11. R.L. and his father explained the legal situation to Respondent. Respondent informed R.L. he should seek legal advice from an attorney. Respondent called an attorney he knew and asked if he would be willing to consult with R.L. with respect to the matter. R.L. and his father then spoke with the attorney. 12. Ms. Salik understood that Respondent told R.L. that he did not have to turn himself in when he turned 18 because the police officer did not give him any documentation to that effect. Ms. Salik also understood that Respondent had told R.L. that Respondent would be able to help R.L. avoid punishment if R.L. continued attending therapy. 13. According to Respondent’s notes, he spoke to Ms. Salik on March 29, 2012, regarding R.L.’s options with the marijuana charge. Ms. Salik indicated her

Emphasis added. desire that R.L. be arrested and put in jail to face the consequences of his actions. Respondent stated it was detrimental to R.L. for him to start his adult life in jail for a felony. According to Respondent, Ms. Salik became angry and “was almost in total

rage.” Respondent concluded there was “[n]o outlet to discuss options rationally with”

Ms. Salik. Exhibit 3 p. 147.

14. On April 3, 2012, R.L.’s father asked Respondent to speak to the police

officer involved regarding R.L.’s options. As R.L, was turning 18 on April 4, 2012,

Respondent agreed.

15. The officer informed Respondent that R.L. could be arrested on two

felony charges as he had drugs and paraphernalia within 1000 feet of school grounds.

Respondent informed the detective that R.L. was in therapy and that he was being

enrolled in a 30 day treatment program. As this was R.L.’s first involvement with the

legal system, the officer agreed not to process the arrest warrant as long as R.L. was

compliant with treatment. Exhibit 3 p. 148-50.

16. When R.L. turned 18, he refused to turn himself in to the police despite

Ms. Salik’s insistence that he do so.

17. During the course of his therapy, R.L. had made references to not being happy in his home life and wishing he could live with Respondent. Respondent testified it was not uncommon for children with a troubled home life to express a desire to live with someone else, including Respondent. 18. On July 9, 2012, R.L. called Respondent “in crisis” regarding a session with his father that was to take place the following day. 19. At the time R.L. called, Respondent had just returned from vacation to find that the electricity and phone lines at his office were not working properly. One phone line was out and one phone line had intermittent service. The electricity was working intermittently throughout his office and the air conditioning was not working. The office was over 90 degrees due to the lack of air conditioning. 20. Respondent told R.L. to meet at Respondent’s house that evening and they would address his goals regarding the upcoming session. Respondent also R.L. and R.L.’s father were both subpoenaed by the Board, but neither appeared at the hearing. advised R.L. to bring a change of clothes so he could spend the night at his father’s house rather than make the extended drive to and from his mother’s house that evening and the following morning for the session.7 Either Respondent was not clear or R.L.

misunderstood and believed Respondent invited him to spend the night at his house.

21. R.L. told his father that he was spending the night at Respondent’s house.

R.L. informed Ms. Salik that he was having dinner with Respondent.

22. R.L. left Ms. Salik’s home between 5:00 p.m. and 5:15 p.m. the evening of

July 9, 2012.

23. Ms. Salik was “alarmed” by the idea of R.L. having dinner with

Respondent. Ms. Salik contacted R.L.’s father and asked if he thought it was odd that

R.L. and Respondent were going to dinner. R.L.’s father responded that he thought it

was weird R.L. was going to spend the night at Respondent’s house.

24. When R.L. arrived at Respondent’s home, Respondent clarified that he

was not able to spend the night there due to the necessary boundaries to be

maintained between a therapist and client and that Respondent was suggesting earlier

that R.L. spend the night at his father’s house.

25. Respondent did not have any specific recollection as to when R.L. arrived at his home, but testified that they left to go to a restaurant “within minutes” of R.L.’s arrival. Ms. Salik testified as to her belief that R.L. was at Respondent’s home for approximately two hours on the evening of July 9, 2012, based on information she gathered from her cellular phone company. 26. Respondent took R.L. to his office to administer a drug test prior to going to the restaurant. The drug test was negative. 27. After Ms. Salik spoke to R.L.’s father, she began calling R.L. to determine his location. R.L. did not answer his cell phone, and Ms. Salik was unable to leave a voicemail message. 28. According to the transcribed text messages provided by Ms. Salik, she first texted R.L. at 6:37 p.m. that evening asking R.L. to call her immediately. Ms. Salik

7 The evidence established Ms. Salik lived closer to Respondent’s office than he believed at the time. texted R.L. three more time before R.L. responded at 7:46 p.m. that he and Respondent were “going to Pei Wei and working on [his] goals.” Exhibit 8. 29. When Ms. Salik asked if R.L. was going to spend the night at

Respondent’s, R.L. responded, “I’m not going to” and that he would “be home by 9:30.”

30. Ms. Salik continued sending text messages to R.L. throughout the

evening implying that Respondent was trying to take advantage of and to engage in a

sexual relationship with R.L. Ms. Salik also made statements including, “Tell him to

kiss his license goodbye,” and “The cops will be setting his appointment.” R.L. invited

her to the session the following day, but Ms. Salik refused. R.L. also stated that Ms.

Salik must be drunk to be drawing such conclusions.

31. Ms. Salik denied being intoxicated on the night of July 9, 2012.

32. R.L. attended the scheduled session on July 10, 2012. Following that,

R.L. attended a session on July 24, 2012. R.L. reported to Respondent that he was

unable to attend a session on July 31, 2012, because Ms. Salik would not let him out of

the house and had threatened to have him arrested.

33. R.L. did not use marijuana during the time he was in therapy with

Respondent from March 2012 through July 2012. Ms. Salik denied any knowledge of R.L.’s sobriety during that time. Ms. Salik admitted she was not aware of the reason R.L. was attending therapy because she and R.L.’s father “don’t speak.” 34. After leaving therapy, R.L. was using marijuana daily and was fired from his job in August 2012 when he was observed smoking marijuana in his car. 35. On April 1, 2013, R.L. returned to therapy with Respondent. At the time of the hearing, Respondent’s last session with R.L. was on April 8, 2013. 36. During the Board’s investigation, it reviewed Respondent’s records concerning R.L. 37. In reviewing email correspondence between Respondent and R.L., the Board identified additional concerns regarding Respondent’s relationship with R.L. 38. Specifically, Respondent closed an email to R.L. on June 25, 2012, with “Tuesday is Tony day. Love ya.” Exhibit 13 p. 238. In an email to R.L. after August 5, 2012, Respondent stated “If you have relapsed, I will totally understand given mom’s recent behaviors, but you need to step up and begin anew.” Exhibit 13 p. 240. The Board argued the emails and other correspondence indicated a longstanding pattern of Respondent improperly aligning himself with R.L. against Ms. Salik.

39. On April 30, 2013, Respondent submitted his Application for License

Renewal indicating he wished to retire by allowing his license to expire on April 30,

2013.

40. Respondent testified he had planned to retire since he last renewed his

license in 2011. Respondent has been gradually reducing his practice since that time.

Respondent testified he had accepted only one new client since September 2012.

41. The Board declined to accept Respondent’s retirement status pending the

outcome of this matter.

CONCLUSIONS OF LAW

1. This matter lies within the Board’s jurisdiction under A.R.S. § 32-2061 et

seq. 2. The Board bears the burden of proof and must establish cause to penalize Respondent’s license by a preponderance of the evidence. See A.R.S. § 41- 1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). 3. “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). A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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 1120 (8th ed. 2004). 4. As to the March 2012 marijuana incident, Respondent recommended R.L. seek legal counsel and provided a referral. Respondent admitted he made the initial contact with the attorney to determine his availability to assist R.L., but denied any further involvement with the attorney or providing any legal advice. Respondent’s notes indicate he contacted the officer at the request of R.L.’s father the day before R.L.’s 18th birthday for further information. However, that is not sufficient to establish that Respondent provided unnecessary services or engaged in a multiple relationship with R.L. that was harmful to R.L. 5. As to the session on July 9, 2012, Respondent testified regarding the

unique circumstances surrounding the events leading to R.L. coming to his home and

having a session in a restaurant. Respondent established that his office was

unavailable due to factors beyond his control.

6. Respondent may have been less than clear or R.L. may have

misunderstood Respondent’s suggestion to bring a change of clothes. The weight of

the credible evidence established Respondent never intended for R.L. to spend the

night at his home, but was attempting to provide R.L. an alternative to travelling long

distances over the two days in question based on his understanding of where R.L.’s

father and Ms. Salik lived at the time. Respondent cannot be held responsible for

R.L.’s misunderstanding.

7. Ms. Salik asserted her belief that R.L. was at Respondent’s home for

approximately two hours that evening, but nothing in the record supports her

conclusions and Respondent specifically denied the same. Respondent testified he

and R.L. left his home within minutes of R.L.’s arrival. 8. While Respondent may have shown poor judgment by inviting R.L. to meet at his home prior to going to a restaurant for their session, poor judgment does not equate to gross negligence or a multiple relationship. 9. Respondent’s emails to R.L. following the July 2012 incident were indicative of Respondent attempting to reengage R.L. in therapy and checking on his well-being. Although the Board characterized the emails as vilifying Ms. Salik throughout, the emails appear to give R.L. an opening to reestablish a therapeutic relationship with Respondent despite Ms. Salik’s obvious resistance to such. 10. No evidence was presented to establish that anything Respondent did during the course of his treatment of R.L. was harmful to R.L. In fact, during the four months R.L. was a regular patient of Respondent from March 2012 through July 2012, R.L. refrained from using marijuana. It was only after R.L. stopped attending sessions with Respondent that he relapsed. 11. The Board failed to establish Respondent committed unprofessional conduct as defined by A.R.S. § 32-2061(13)(e); A.R.S. § 32-2061(13)(o); or A.R.S. § 32-2061(13)(dd), or by violating the Ethical Principles of Psychologists and Code of

Conduct of the American Psychological Association, as adopted by the Board in A.A.C.

R4-26-301, and as set forth in Ethical Standard 3.05 relating to multiple relationships.

12. As such, the Board failed to establish cause to discipline Respondent’s

license under A.R.S. § 32-2081(L).8

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the

Board dismiss this matter.

In the event of certification of the Administrative Law Judge Decision by the

Director of the Office of Administrative Hearings, the effective date of the Order will be

five days from the date of that certification.

Done this day, June 27, 2013. /s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to: Cindy Olvey, Executive Director Board of Psychologist Examiners

A.R.S. § 32-2081(L) provides that if the Board finds that the licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license.