Due Process and Your Professional License – Know Your Rights
Current or former clients who are dissatisfied with treatment or who feel they have been wronged by a licensed mental health professional can seek recourse in several ways. First, they can file a malpractice claim in a court of law. Such cases are expensive to file (and to defend) and are relatively rare in mental health contexts, perhaps due to factors such as the nature of the relationship between client and provider and the difficulties of proving causation and quantifying damages. Second, a client may choose to file a complaint with a professional organization such as the American Counseling Association or American Psychological Association. Such a complaint, even if proven, has little real impact on the professional’s practice other than dismissal from the organization. A third option is to file a complaint, or grievance, with the state licensing board. This course of action carries with it the potential for the provider to have her license suspended or revoked, potentially leading to an inability to practice in Colorado and requiring reporting of the violation(s) to boards in other states in which the licensee is licensed or wishes to obtain a license.
Although a grievance has the potential to have a serious impact on a mental health provider’s license, a licensee who is the subject of a grievance is not powerless at the hands of the licensing board. The concept of “innocent until proven guilty” applies in these situations, and licensees have constitutional rights related to their licenses which must be respected. According to the 14th Amendment to the U.S. Constitution, a state may not “deprive any person of life, liberty or property without due process of law.” The U.S. Supreme Court has recognized that a professional license is a property right for the purposes of due process(E1); thus, a state cannot deprive a licensee of a professional license without some level of due process. The process that is due to licensees may include several elements such as: adequate notice of the grievance; an opportunity for a hearing; a fair and impartial hearing panel; the opportunity to confront and cross examine adverse witnesses; a decision based on the evidence presented; a record of the proceedings; and an opportunity for appeal or judicial review of the decision.
The grievance process in Colorado is governed by the Colorado Administrative Procedure Act(E2) and allows for all of the above elements of due process. However, it is possible for a licensee to waive one or more of these rights, either inadvertently or intentionally, which would allow the Board to proceed with disciplinary sanctions without holding a hearing or following other procedural requirements. For example, if a licensee feels that a grievance is accurate and the proposed sanctions appropriate, he might intentionally choose to waive his right to a hearing and instead accept the settlement offer made by the licensing board. In contrast, a licensee may inadvertently waive the right to due process by immediately accepting a settlement offer from the Board without understanding that she has a right to a hearing before accepting the sanctions imposed by the settlement.
If a licensee feels that a grievance is not accurate and wishes to present her side of the story, it is important for her to understand that she has the right to be heard before a neutral decision-maker prior to the imposition of disciplinary sanctions. The only exception is if the Board feels that there is an emergency or a serious danger to the public health and welfare if the licensee continues to practice. In those situations, the Board may summarily suspend the license to practice pending a hearing on the matter. In order to avoid an inadvertent waiver of due process, a licensee who is notified of a grievance should consult with an attorney or another professional who understands the due process rights afforded to licensees in Colorado. This will allow the licensee to consider all available options and make an informed decision about whether to waive some of the process that is due or to take full advantage of the processes in Colorado related to licensure rights. Please feel free to contact me if you need assistance or additional information.
Endnotes:
(E1) Goldberg v. Kelly, 397 U.S. 254 (1970).
(E2) C.R.S. § 24-4-101 et seq.
For questions regarding this article please contact Jon Goodman.