In Re Dawn Chadwick VS Louisiana Licensed Professional Counselors Board of Examiners
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 0562 IN RE DAWN G CHADWICK VERSUS LOUISIANA LICENSED PROFESSIONAL COUNSELORS BOARD OF EXAMINERS Judgment Rendered December 21 2012 x Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No 596 Section 27 330 The Honorable Todd Hernandez Judge Presiding x Steven E Adams Counsel for Defendant Appellant Baton Louisiana Licensed Professional Rouge Louisiana Counselors Board of Examiners Pamela J Lormand Counsel for Plaintiff Appellee Todd J Bialous Dawn G Chadwick New Orleans Louisiana BEFORE CARTER C GUIDRY J AND GAIDRY JJ GAIDRY J In this suit for judicial review of a licensing board decision the board appeals a judgment modifying its order revoking a license For the reasons that follow we reverse FACTS AND PROCEDURAL HISTORY Dawn Chadwick a licensed professional counselor was appointed by the district court in September of 2006 to perform a custody evaluation in a suit for custody of a minor child where there were allegations of sexual abuse of the minor child by the child mother and her boyfriend now s husband Ms Chadwick met with the parties on many occasions in 2006 and 2007 Because the mother and her husband were displeased with their sessions with Ms Chadwick they purchased a digital recording device and began recording the sessions A custody evaluation was also performed by another counselor at their request On July 23 2007 the mother and her husband filed a complaint with the Louisiana Professional Counselors Board of Examiners the Board alleging professional misconduct and violations of the Louisiana Licensed Professional Counselors Code of Ethics by Ms Chadwick Specifically they alleged that she conducted a custody evaluation despite the fact that she already had a counseling relationship with the child and one of the parents in violarion of LAC 46 F and H disclosed 1 A 2103 LX 1 ac Lx2ios r46 1 a Primary Responsibility The primazy responsibility of counselors shall be to respect the dignity and to promote the welfare of clients LAC 46 1 F 2103 LX Avoid When Possible Counselors shall be awaze of their influential positions with xespect to clients and they shall avoid exploiYing the trust and dependency of clients Counselors shall make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients Examples of such relationships include but are not limited to familial social financial business ox close personal relationships with clients When a dual relationship cannot be avoided counselors shall take appropriate professional precautions such as informed consent 2 confidential information in violation of LAC 46 and C 1 1 A 2103 LX and 2105 5 6 7 B and D and 5 engaged in 1 A 2 2 unprofessional behavior when interviewing the child and his mother and her husband for the custody evaluation in violation of LAC 46 1 A 2103 LX consultation supervision and documentation to ensure that judgment is not impaired and no exploitation occurs 3 LAC 46 I 2103 LX Multiple Clients When counselors agree to provide counseling services to two or more persons who have a relationship such as husband and wife or pazents and children counselors shall clarify at the outset which person or persons are clients and the nature of the relationships they will have with each involved person If it becomes apparent that counselors may be called upon to perform potentially conflicting roles they shall clarify adjust or withdraw from roles appropriately 4 Lac 46 i c 2to3 Lx Disclosure to Clients When counseling is initiated and throughout the counseling process as necessazy counselors shall inform clients of the purposes goals techniques procedures limitations potential risks and benefits of services to be performed and other pertinent information Counselors sha11 take steps to ensure that clients understand and implications of diagnosis the intended use of tests and reports fees and billing arrangements Clients have the right to expect confidentiality and to be provided with an explanation of its limitations including supervision and treatment team professionals or to obtain clear information about their case records to participate in the ongoing counseling plans and to refuse any recommended services and be advised of the consequences of such refusal s r46 2ios AC Lx A i Respect for Privacy Counselors shall respect their clients right to privacy and avoid illegal and unwazranted disclosures of confidential information 6 LAC 46 s a 2ios Lx Court Ordered Disclosure When court ordered to release confidential information without a client spermission counselors shall request to the court that the disclosure not be required due to poYential harm to the client or counseling relationship Lac 46 a Lx2ios Minimal Disclosure When circumstances require the disclosure of confidential information only essential information shall be revealed To the extent possible clients aze informed before confidential information is disclosed Lac 46 A Lxzlos Explanation of Limitations When counseling is initiated and throughout the counse ing process as necessazy counselors shall inform clients of the limitations of confidentiality and identify foreseeable situations in which confidentiality must be breached y LAC 46 2 B 2105 LX Family Counseling ln family counseling information about one family member shall not be disclosed to another member without permission Counselors shall protect the privacy rights of each family member 10 r46 ac Lx21os 2 2 Confidentiality of Records Counselors shall be responsible for securing the safety and confidentiality of any counseling records they create maintain transfer or destroy whether the records are written taped computerized or stored in any other medium LAC 46 s Lx2ios Disclosure ar Transfer Counselors shall obtain written permission from clients to disclose or transfer records to legitimate third pazties unless exceptions to confidentiality exist as listed in 2105 Steps shall be taken to ensure that receivers of counseling A records are sensitive to their confidential nature 3 3 C and E and 2 and made false statements regarding court 1 documents in violation of LAC 46 and 2107 and 1 E D 2105 LX 3 F The Board conducted a hearing on the complaint on July 16 2010 In addition to reviewing the audiotapes of the sessions recorded by the mother the Board heard testimony from the mother and her husband the father the investigator who looked into the complaints against Ms Chadwick Dr Rafael Salcedo a forensic psychologist Alicia Pellegrin the counselor who evaluated the parties after Ms Chadwick and from Ms Chadwick After the hearing the Board made the following findings Ms Chadwick had no significant specific training as a custody evaluator or a family therapist although Ms Chadwick was hired to perform a custody evaluation her sessions clearly went beyond pure evaluation and took on the status of a counseling relationship Ms Chadwick actions of having s the mother and child in the counseling room at the same time was clearly LAC 46 3 C 2103 LX Inability to Give Consent When counseling minors or persons unable to give voluntary informed consent counselors shall act in these clients best interests LAC a6 E Lx2io3 Personal Needs In the counseling relationship counselors shall be aware of the intimacy and responsibilities inherent in the counseling relationship maintain respect for clients and shall avoid actions that seek to meet their personal needs at the expense of clients 14 Lac 46 z 2io3 x r Pexsonal Values Counselors shall be aware of their own values attitudes beliefs and behaviors and how these apply in a diverse society and shall avoid imposing their values on clients LAC 46 1 D 2105 LX Requirement of Records Counselors shall maintain records necessary for rendering professional services to their clients and as required by laws regulations or agency or institution procedures t6 LAC 46 3 E 2io x r Reports to Third Parties Counselors shall be accurate honest and unbiased in reporting their professional activities and judgments to appropriate third parties including courts health insurance companies those who are the recipients of evaluation reports and others LAC 46 3 F 07 2 LX Clients Served by Others When counselors learn that theix clients aze in a professional relationship with another mental health professional they sha11 request release trom clients to inform the other professionals and strive to establish positive and collaborative professional relationships 4 improper Ms Chadwick serving in the dual roles of custody evaluator s and sex abuse evaluator was improper Ms Chadwick sinterview methods were improper and although no disciplinary charges were brought on this infraction it appeared that Ms Chadwick improperly billed the parties insurance for counseling while performing a custody evaluation The Board concluded that Ms Chadwick violated the rules applicable to counselors against dual relationships and conflicts of interest because she clearly had a therapeutic as weli as evaluator relationship with the parents and child The Board observed that Ms Chadwick has a totai lack of awareness of the ethical issues and does not appear to recognize the difference between her roles as an investigator evaluator and therapist The Board also found that Ms Chadwick violated the rules against unprofessional behavior by interviewing the mother with the child in the room and by suggesting that the mother did not love the child in front of the child The Board found there to be no mitigating factors to consider based upon its observation fhat Ms Chadwick testimony and demeanor at the s hearing reflected a total lack of awareness of the complex ethical issues entailed and a complete lack of remorse for her actions and the harm which resulted Far those reasons the Board unanimously found that Ms Chadwick violated the rules applicable to counselors by clear and convincing evidence and ordered her license revoked The Board further ordered that Ms Chadwick could reapply for licensure after two years Ms Chadwick filed a petition for judicial review of the Board decision in the 19 Judicial s District Court in accardance with La R 37 S 1105 E After a review of the proceeding before the Board the district court found that while Ms Chadwick may have violated the rules prohibiting 5 counselors from providing counseling to a family while also preparing an evaluation the court found that it was not done in bad faith or with any intent to break rules The court rendered judgment modifying the Board s decision revoking Ms Chadwick license to instead provide far a tl s ree month suspension of her license retroactive to the date ofthe revocation by the Board The Board appealed the district court judgment asserting that the s court applied an incorrect standard of review and thus erred in setting aside the Board sanction and substituting its own judgment for that of the Board s DISCUSSION The Board is a statutorily entity within the Louisiana created Department of Health and Hospitals La R 37 The Board was S 1104 created for the purpose of regulating the activities of persons who render mental health counseling services to the public La R 37 It has the S 1102 authority to license mental health counselors and may also take disciplinary action against licensed counselors including revoking or suspending any license issued by it La R 37 Pursuant to the mandate of La S 1105 E S 1105 R 37 the Board adopted the Code of Ethics of the American D Counseling Association lt has also adopted rules and regulations which set out the procedures to be followed by the Board when disciplinary hearings are held The Louisiana Mental Health Counselar Licensing Act provides that the Board shall withhold deny revoke or suspend any icense issued or otherwise discipline a licensee upon proof that the licensee has violated the code of ethics adopted by the Board La R 37 S 1110 3 A Any person aggrieved by a ruling of the Board may appeal to the district court for the parish of East Baton Rouge La R 37 The S 1105 E district court conducts its judicial review pursuant to La R 49 et S 950 6 seq the Administrative Procedure Act APA That review is confined to the record but upon request the court shall hear oral argument and receive written briefs La R S The agency decision can only be F 964 49 reversed or modified by the reviewing court if substantial rights of the appellant have been prejudiced because the administrative findings inferences conclusions or decisions are 1 In violation of constitutional or statutory provisions 2 In excess of the statutory authority of the agency 3 Made upon unlawful procedure 4 Affected by other error of law 5 Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise ofdiscretion or 6 Not supported and sustainable by a preponderance of evidence as determined by the reviewing court In the application of this rule the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirery upon judicial review In the application of the rule where the agency has the opportunity to judge the credibility of witnesses by first observation of demeanor hand on the witness stand and the reviewing court does not due regard shall be given to the agency determination of s credibility issues La R 49 S 964 G An arbitrary decision shows disregard of evidence ar the proper weight thereof while a capricious decision has no substantial evidence to support it ar the conclusion is contrary to substantiated competent evidence Cedyco Corp v Dept of Natural Resources 07 p 6 1 Cir 2500 App La 08 7123 993 So 271 275 2d Where the law allows for the agency or tribunal to exercise discretion the statute plain language concludes that s such exercise must be neither abusive nor clearly unwarranted Id In modifying the Board decision on judicial review the district court s did not make a finding as required by La R 49 that the Board S 964 s conclusions were arbitrary or capricious or an abuse of discretion Rather the court found that while Ms Chadwick appeared to have violated the rules 7 she did not seem to have done so intentionally or in bad faith However La S 1110 R 37 provides that the Board shall withhold deny revoke or 3 A suspend a license upon proof that the licensee has violated the code no mention is made of good or bad faith We find ample evidentiary support in the record for the Board findings and conclusions and the Board s s exercise of discretion in revoking Ms Chadwick slicense was well within their statutory authority as provided by La R 37 Thus the S 1110 3 A district court erred in modifying the Board sdecision on judicial review CONCLUSION The judgment of the district court modifying the Board decision s revoking Ms Chadwick license to instead provide for a three s month suspension is reversed Costs of this appeal are assessed to Ms Chadwick REVERSED 8
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