Note: The remarks below are not intended to opine on the proper outcome or legal conclusions of the Court of Appeals case noted within. Rather, this blog entry is 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.
The Minnesota Board of Psychology (Board) requires individuals seeking a license to have completed one full year in a postdoctoral supervised psychological employment. Minn. Stat. 148.907, Subd. 2(7). Under this requirement individuals preparing to be Minnesota's future providers of psychological services work under the supervision of a Licensed Psychologist or qualifying supervisor to get that experience. The supervision empowers these individuals under the law to provide psychological services.
The law also requires that the supervision be conducted in a very specific manner. For example, a minimum of one hour (60 minutes) of supervision per month is required for 20 hours of psychological services delivered per month. For each additional 20 hours , an additional hour of supervision is required. Minn. Stat. 148.925, subd. 5. This amounts to two hours per week for full-time employment. The law is clear that supervisees, who are defined as, an individual whose supervision is required to obtain credentialing by a board of psychology may perform all of the functions described in the law as the definition of the practice of psychology, but only under qualified supervision. See, Minn. R. 7200.0110, subp. 33 (defining supervisee); See also, Minn. Stat. 148.925, subd. 6. While supervision is many things, it must at its core assure that the quality and competence of the activities supervised are performed at the minimum standard of prevailing and professional practice.
The ability to practice psychology in Minnesota without a license is limited to that practice conducted under a legally established supervisor-supervisee relationship. Supervisees derive their practice authority from the license of, or authority of their supervisor. Described another way, the authority of the supervisee only extends as far as the authority of the supervisor under the law and administrative rules of the Psychology Practice Act. There are many implications to be drawn from this supervisor-supervisee relationship. The most prominent is that the supervisor is required under law to take full responsibility for the actions of the supervisee. Specifically, the administrative rules of the Board state,
[i]n complying with Minnesota Statutes, section 148.925, the primary supervisor shall retain supervisory responsibility for all supervised professional experience. Minn. R. 7200.2000, subp. 2, D.
Given that the supervisor retains supervisory responsibility for the work of the supervisee, the supervisor in taking this role clearly assumes the liabilities and risks that accompany that role; including the requirement that the supervisor be held accountable to both third-party insurers and the Board for any and all conduct of the supervisee. It is in this way that the public is protected while individuals prepare for licensure. The Board is not in a position to discipline a supervisee who violates the Psychology Practice Act until that supervisee becomes an applicant of the Board. It is the supervisory relationship that provides the accountability for the unlicensed individual. The supervisee on their own holds no independent right to practice, as the supervisor retains the authority.
The Minnesota Court of Appeals recently made a decision that takes a plain reading interpretation of one of the Boards statutes, Minnesota Statute, 148.975, subdivisions 4 and 8. The law provides immunity to licensed psychologists who follow mandated reporting statutes. The Court found that the immunity conferred under the law does not apply to a mental-health therapist who is not licensed by the Board of Psychology.
Interestingly, the Court cites to Minnesota Statutes, 595.02, subd. 1(g) as creating the psychologist-patient relationship discussed in Expose. Applying the Courts logic, the privilege noted in this law would not be applied to unlicensed mental-health providers, either. It is worth noting that the statute that the Court derives the duty of confidentiality from, makes no mention of unlicensed individuals, it specifically lists out the individuals needed to create this protected relationship, and uses the term psychologist:
"A registered nurse, psychologist, consulting psychologist, or licensed social worker engaged in a psychological or social assessment or treatment of an individual at the individuals request shall not, without the consent of the professionals client, be allowed to disclose any information or opinion based thereon which the professional has acquired in attending the client in a professional capacity, and which was necessary to enable the professional to act in that capacity."
It seems logical that an individual is either practicing psychology and can do so under the supervision of a licensee and the duties and immunity flow from the supervisor-supervisee relationship, or they are not practicing psychology and therefore neither duty nor immunity apply.
It is difficult to reconcile the supervisor-supervisee structure for licensure preparation, specifically, the fact that a supervisor is clinically responsible for unlicensed persons, with the Court of Appeals decision which potentially undercuts the supervisory relationship and makes interns and applicants potentially vulnerable prior to obtaining licensure. It is also has a potential to have a chilling impact on an already diminished supervision pool, leaving supervisors exposed to liability and risk for mandated reports made by their unlicensed supervisees.
The Board has several options to consider with respect to this decision and is in the process of gathering additional information to make an informed decision regarding the issues raised.
/boards/assets/2015%2005%2004%20Court%20of%20Appeals%20Decision_tcm21-194855.pdfRead the Minnesota Court of Appeals decision here.
