BUREAU OF HEALTH SERVICES V WILLIAM THOMAS MAINE
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STATE OF MICHIGAN
COURT OF APPEALS
BUREAU OF HEALTH SERVICES and
DEPARTMENT OF CONSUMER & INDUSTRY
SERVICES,
UNPUBLISHED
September 14, 2004
Petitioners-Appellees,
No. 247991
Board of Psychology
Disciplinary Subcommittee
LC No. 2001-000271
v
WILLIAM THOMAS MAINE,
Respondent-Appellant.
Before: Whitbeck, C.J., and Sawyer and Saad, JJ.
PER CURIAM.
I. Overview
Respondent William Maine appeals as of right the Department of Consumer & Industry
Services, Bureau of Health Services, Board of Psychology Disciplinary Subcommittee’s (DSC)
order determining that he engaged in the practice of psychology and violated a general duty
consisting of either negligence or failure to exercise due care under § 16221(a) of the Public
Health Code, MCL 333.1101 et seq. We affirm.
II. Basic Facts And Procedural History
This case arose when, in response to a request by a client, Maine wrote a letter to a circuit
court judge in which he characterized the actions of the client’s wife as “appear[ing] to be of a
person who was experiencing symptoms of schizoid, depressive or bipolar disorder.” At the time
Maine wrote this letter, he had not met his client’s wife. Rather, as the letter states, Maine’s
characterization was based on his client’s representations of the wife’s behavior. Maine signed
the letter with the designation L.L.P., the acronym for “limited license psychologist.”
The letter was submitted as evidence against the wife in divorce and child custody
proceedings between the couple. Maine claimed that at the time his client requested the letter, he
was unaware of any divorce or child custody proceedings between the couple. Maine testified
that his sole purpose for writing the letter was to encourage the judge to order an independent
evaluation of the family situation.
Although it is not clear from the record how the letter came to its knowledge, the
Department of Consumer & Industry Services, Bureau of Health Services filed a complaint,
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claiming that when Maine wrote the letter he was engaged in the practice of psychology, and in
doing so, he violated § 16221(a) of the Public Health Code. Maine, however, asserted that there
was no authority to investigate his activities because those activities were not “related to the
practice of” psychology.
An administrative hearing was held to address whether Maine violated the Public Health
Code as alleged in the complaint. At the conclusion of the administrative hearing, the hearing
referee issued a proposed decision and determined that Maine was not practicing psychology and
did not violate any ethical duties. Specifically, the referee found that Maine did not intend the
letter to persuade the judge to rule in favor of Maine’s client in any pending litigation, and he did
not intend the letter to be a forensic report. According to the referee, the language used in the
letter did not suggest that Maine was providing any professional assessment or diagnosis of his
client’s wife. The referee also concluded that using the “L.L.P.” designation did not, in and of
itself, indicate that Maine was engaging in the practice of psychology.
Subsequently, the DSC found that Maine was engaged in the practice of psychology and
violated § 16221(a) of the Public Health Code. Specifically, the DSC found that Maine
improperly commented on the potential behavior disorders of his client’s wife without having
properly investigated her condition. The DSC believed that Maine was aware that his letter,
when being submitted to a court, could have an impact on court proceedings. The DSC stated
that its decision was based on its conclusion that the testimony of Dr. Fabick, the DSC’s witness
at the administrative hearing, was more credible and compelling than that of Maine’s witness,
Dr. Bassos, in part because Dr. Fabick had more experience with family court matters. After the
DSC issued its final order, Maine filed this appeal.
III. The Authority Of The DSC
A. Standard Of Review
Maine argues that the DSC lacked the authority to discipline respondent for violating a
general duty. He asserts that under the plain language of § 18201(1)(b) and § 16221(a) of the
Public Health Code, he was not engaged in the “practice of psychology” when he wrote and
signed the letter addressed to the judge because he did not formally diagnose his client’s wife.
Rather, Maine asserts he was merely describing his own impressions based on his client’s
description of his wife’s behavior in order to encourage the judge to make an independent
evaluation of the family situation. Further, Maine asserts that the DSC failed to show that he
wrote the letter for purposes of diagnosis and assessment, and no evidence was submitted to
show that he employed any method of treatment.
An agency’s ruling must be affirmed if the decision is supported by substantial evidence
based on the whole record.1 “Courts should accord due deference to administrative expertise and
1
St Clair Intermediate School Dist v Intermediate Ed Ass’n Michigan Ed Ass’n, 218 Mich App
734, 736; 555 NW2d 267 (1996).
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not invade administrative fact finding by displacing an agency’s choice between two reasonably
differing views.”2
B. The Practice Of Psychology
MCL 333.18201(1)(b) defines the practice of psychology as:
[T]he rendering to individuals, groups, organizations, or the public of services
involving the application of principles, methods, and procedures of understanding,
predicting, and influencing behavior for the purposes of the diagnosis, assessment
related to diagnosis, prevention, amelioration, or treatment of mental or emotional
disorders, disabilities or behavioral adjustment problems by means of
psychotherapy, counseling, behavior modification, hypnosis, biofeedback
techniques, psychological tests, or other verbal or behavioral means.
Here, the DSC reviewed the content of Maine’s letter and compared the testimony of
both Dr. Fabick and Dr. Bassos. Dr. Fabick testified that given the contents of the letter,
including the diagnostic terminology used and the employment of the L.L.P. designation, Maine
had engaged in the practice of psychology. The DSC found that this testimony to be the more
credible because the witness was experienced in court matters involving family situations as they
relate to the practice of psychology. In this case, given the DSC’s administrative expertise, we
defer to the DSC’s choice between the alternative views of the two experts.3
IV. Substantial Evidence
A. Standard Of Review
Maine argues that the DSC erred in rejecting the conclusions of the hearing referee and
concluding that respondent violated the American Psychological Association’s (APA) Ethical
Principals of Psychology and Code of Conduct, §7.02 (Forensic Assessment), §2.01 (Evaluation,
Diagnoses and Intervention in Professional Context), and §2.05 (Interpreting Assessment
Results). Again, an agency’s ruling must be affirmed if the decision is supported by substantial
evidence to make findings of fact and conclusions of law based on the whole record.4
Substantial evidence is evidence that a reasonable mind would consider sufficient to support a
conclusion.5 If substantial evidence exists, a reviewing court must give deference to the
administrative agency.6
2
Dignan v Public School Employees Retirement Bd, 253 Mich App 571, 576; 659 NW2d 629
(2002).
3
Dignan, supra at 579.
4
St Clair Intermediate School Dist, supra at 736.
5
Id.
6
Dignan, supra at 576.
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B. The Evidence Before The DSC
Maine testified that he had written the letter in his capacity as an Employee Assistance
Coordinator and that he was not trained to provide forensic reports under § 7.02 of the APA. He
further argues that § 2.01 and § 2.05 should not apply to him because he did not perform a
psychiatric evaluation, diagnosis, or intervention, and did not complete an assessment of his
client’s wife. Dr. Bassos agreed, stating that Maine did not provide an evaluation for a patient
for the purpose of a legal proceeding. Dr. Bassos also agreed that §2.01 would not apply because
the letter was not an expression of an evaluation and that Maine did not violate §2.05 because the
letter did not indicate that respondent interpreted any assessment results. In contrast, Dr. Fabick
testified that although Maine’s letter was not in the format of a forensic report, the letter could
still be construed as forensic activity because Maine made diagnostic references of a person
exhibiting “bipolar, schizoid, or depressive” behavior. Additionally, Dr. Fabick testified that
Maine violated § 2.01 and §2.05 of the APA because he had a general duty as an L.L.P. not to
describe a patient he had not seen.
Based on the record as a whole, we conclude substantial evidence was presented to
allowed the DSC to make findings of fact and conclusions of law that were contrary to the
hearing referee’s proposed decision. Accordingly, we defer to the administrative agency’s
decision that Maine violated the Ethics Code standards.
Affirmed.
/s/ William C. Whitbeck
/s/ David H. Sawyer
/s/ Henry William Saad
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