Update: Minnesota Court of Appeals Decision on Duty to Warn Moves to the Minnesota Supreme Court
Angelina M. Barnes
On May 27, 2015, the Minnesota Board of Psychology (Board)’s Executive Director, Angelina M. Barnes, JD published on the Board’s website a blog entry entitled, “Minnesota Court of Appeals Opines Immunity Conferred in Minnesota Law Does Not Apply to Mental Health Therapists Not Licensed by the Board of Psychology.” This blog entry was published in response to a decision of the Minnesota Court of Appeals in a case entitled: State of Minnesota v. Jerry Expose, Jr. No. A13-1285, 2015 WL 8343119 (Minn. Dec. 9, 2015) to raise awareness about the Courts’ decision and to encourage thoughtful consideration of its potential ramifications on the supervision of unlicensed individuals facing situations where typical duty to warn statutes may be implicated in Minnesota.
In an Order of the Minnesota Supreme Court dated July 21, 2015, the Court granted the request to review the Minnesota Court of Appeals decision in State of Minnesota v. Jerry Expose, Jr., all proceedings were put on hold pending the final decision in the case by the Minnesota Supreme Court.
Access the /boards/assets/2015%2007%2021%20Exp_Order_Grant%20and%20Stay_tcm21-202566.pdfCourt Order dated July 21, 2015
Subsequently in an Order dated January 19, 2016, the Minnesota Supreme Court vacated the stay (its own decision to put the case on hold) and granted the petitions of both Nina Mattson and Thad Wilderson & Associates, P.A. for further review of the Minnesota Court of Appeals decision as to limited issues and directed the parties to proceed by briefing the issues.
Access the /boards/assets/2016%2001%2021%20Exp_Order_Grant%20and%20Vacate%20Stay_tcm21-202567.pdfState of Minnesota In Supreme Court Order dated January 19, 2016
Following the Minnesota Supreme Court’s decision to grant review, the Board’s Administrative Committee, comprised of the executive officers of the Board Drs. Scott A. Fischer, Ph.D., LP, Board Chair, Raja David, Psy.D., LP, Board Vice Chair, Amelia Versland, Ph.D., LP, Board Secretary, convened an Emergency Special Meeting on February 2, 2016.
Access the /boards/assets/2016%2002%2002%20Exp_Admin%20Committee%20Minutes%20Special%20Emergency%20Meeting_tcm21-202568.pdfMinnesota Board of Psychology, Minutes of the February 2, 2016 Emergency Special meeting of the Administrative Committee.
The Committee reviewed the legal status of the State of Minnesota v. Jerry Expose, Jr. case and was advised by Director Barnes that the Minnesota Supreme Court had granted review, which included issues related to the duty to warn. The Committee discussed the option to file an amicus brief with the Minnesota Supreme Court to weigh in on the issues related to duty to warn and immunity for those in training under supervision.
This is a significant and new course of action for a Minnesota health-related licensing board. A “amicus brief” is a legal document filed in an appellate court case by someone who is not a part of the litigation who has a strong interest in the subject matter. The briefs submitted are intended to advise the court of relevant, additional information or arguments that the court may wish to consider. The Administrative Committee on behalf of the Board determined that it has a very strong public protection interest in the current case, and that it should, in accordance with its mission, educate the court in the area of postdoctoral supervision, duty to warn, and the immunity implications.
During this meeting, Dr. Versland moved, seconded by Dr. David to request that the Office of the Attorney General file a motion on behalf of the Board with the Minnesota Supreme Court to allow the Board to participate in the matter by submitting an amicus curiae brief on the issues related to the duty to warn and the Board’s concerns related to public protection. By a roll call vote, the Motion carried. The Committee made the following findings:
- The Minnesota Board of Psychology has a statutory duty to, “educate the public about the requirements for licensing psychologists…and about the rules of conduct…” which the Committee found to include educating the Minnesota Supreme Court.
- A supervisee who engages in the practice of psychology under Minnesota Statutes, section 148.925, subdivision 6 who follows all statutory and administrative rule requirements for practicing under supervision, who makes a Duty to Warn report under Minnesota Statutes section 148.975 should be entitled to the protections of immunity under Minnesota Statutes, section 148.975, subdivision 4, which states, “good faith compliance with the duty to warn shall not constitute a breach of confidence, and shall not result in monetary liability or a cause of action against the licensee.”
- The Minnesota Board of Psychology protects the public through licensure, regulation, and education, to promote access to safe, competent and ethical psychological services.
- There is substantial risk that under the Minnesota Court of Appeals decision that a supervisee preparing for Licensed Psychologist (LP) licensure under proper legal supervision authorized to fully practice psychology under Minnesota Statute, section 148.925, subdivision 6, would be deprived of protections that were enacted by the Minnesota Legislature to facilitate the execution of the duty to warn.
- A provider authorized to fully practice as a supervisee under the Psychology Practice Act, and to provide psychological services must be assured that when exercising those responsibilities in good faith, they will not be intimidated or silenced by fear of litigation or monetary damages/liability from making their good faith report, which is in the best interests of the public. To find otherwise exposes both supervisees and supervisors to risk, liability, and fear.
- Supervisees and supervisors may be deterred from making a good faith report under duty to warn based on this decision which would negatively impact public safety in Minnesota for those who the Legislature intended to protect.
- The stop gap within the supervisor-supervisee relationship are the legal responsibilities conferred on the supervisor who is legally obligated to assume all clinical responsibility for the actions of the supervisee. See, Minn. R. 7200.2000, subp. 2, D., (stating, “In complying with Minnesota Statutes, section 148.925, the primary supervisor shall retain supervisory responsibility for all supervised professional experience. Supervisory sessions with the primary supervisor shall include discussions that incorporate the applicable ethical and practice standards of psychology.”)
- There is a “direct link between this and public safety,” as the Committee is “talking about whether someone has immunity to make a report intended to keep the public safe.”
- Public protection is “paramount,” and training sites are impacted.
- Individuals may opt to not pursue a career in mental health services, to provide supervision, or to take such a risk during a time when mental health services are critical to the State of Minnesota citizens.
- Filing an amicus curiae motion is “consistent with our mission, the court system cannot be expected to know about the practice of psychology as we do…it fits well without our mission, and our expertise as the Board of Psychology.”
- The Board may not be fulfilling its role and responsibilities if it did not file a brief to educate the courts about why these protections for executing a duty to warn are critical.
On February 3, 2016, the Board filed a Motion for Leave to File Amicus Curiae Brief and stated:
As the public body that oversees the practice of psychology, the Board has a strong public interest in the application of section 148.975, and it is in a unique position to assist the Court in resolving this issue.” If the motion is granted, the Board’s brief will suggest that the Court reverse the Court of Appeals on this issue and hold that immunity conferred by Minn. Stat. 148.975 applies to an individual preparing for licensure as a Licensed Psychologist, and authorized to fully practice psychology under Minn. Stat. 148.925, subd. 6.
Access the /boards/assets/2016%2002%2003%20Exp_Motion_Leave%20to%20File%20Amicus_BOP_tcm21-202569.pdfFebruary 3, 2016 Motion of the Minnesota Board of Psychology For Leave to File Amicus Curiae Brief.
In an Order dated February 5, 2016, Associate Justice G. Barry Anderson granted the motion of the Board to serve and file a brief as amicus curiae in the above-entitled matter in support of the appellants.
Access the /boards/assets/2016%2002%2005%20Exp_Order_Grant%20Amicus_BOP_tcm21-202570.pdfState of Minnesota In Supreme Court Order dated February 5, 2016.
The Board served and filed its Brief of Amicus Curiae In Support of Appellant Nina Mattson on February 25, 2016. In summary the Board argued:
- the term “licensee” in Minnesota Statutes 148.975 applies to an individual practicing under a licensees’ supervision;
- that because an applicant for licensure is required to practice under licensee supervision, a supervisee who is practicing in such an arrangement is, in effect, practicing pursuant to the license held by her supervisor and acting exactly as a licensee would;
- that the Board applies the confidentiality exceptions to supervisees and as such, applying Minnesota Statutes section 148.975 to unlicensed supervisees will be consistent with Board rules and the intent to protect the providers who are bound on one side by confidentiality and a duty to protect the public on the other;
- that affirming the Court of Appeals interpretation of Minnesota Statutes, section 148.975 will impede the supervision-based training regimen and could reduce the availability and quality of psychological care in Minnesota
Access the /boards/assets/2016%2002%2025%20Exp_Brief_Board%20of%20Psychology_Amicus_tcm21-202571.pdfBrief of Amicus Curiae Minnesota Board of Psychology In Support of Appellant Nina Mattson.
