The opinion
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STATE OF MAINE -- -
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. ,.. SUPERIOR COURT
CUMBERLAND, ss. -
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, .- CIVIL ACTION
DOCKET NO. AP-05-008 /'
Petitioner
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.,i ORDER ON
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j PETITIONER'S
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80C APPEAL
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THE BOARD OF SOCIAL 9
WORKER LICENSURE Q C ~11
Respondent ,,# .W.
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Petitioner appeals pursuant to 5 M.R.S.A. § 11001 and M.R.Civ.P. 80C
from the Board of Social Worker Licensure's (the "Board") decision, which found
that Petitioner had violated the Code of Ethics of the National Association of
Social Workers (the "NASW Code").
STATEMENT OF FACTS
Petitioner is a licensed clinical social worker. R. at 76. She obtained her
Masters Degree in Social Work in 1999, and began practicing part-time in
January of 2001, and then full-time in September of 2003. Id. She voluntarily
receives supervision in her practice from two other social workers. R. at 78.
Approximately two weeks before September 22, 2003, Petitioner received a
phone call from Melissa Whte, who is the mother of two boys, born in 1993 and
1995. I d . In this conversation, Ms. White told the Petitioner that she shares
custody of the two boys with her ex-husband, Jeff Bailey. She then explained
1
Petitioner did not ask for, and was not given a copy of Ms. White's and Mr. Bailey's December 2, 1997
divorce judgment. Over Petitioner's counsel's objection, the judgment was entered into the record at the
hearing. It states in part:
that the boys appeared "stressed out" after returning from their week with their
father, and that she thought somebody outside of the family should see them. R.
at 78-79. Based on this information, Petitioner scheduled an initial assessment
for the boys for September 22. R. at 79.
On September 22, Ms. White brought the boys to see Petitioner, and
Petitioner had her sign an informed consent form. R. at 93. Petitioner considered
this initial assessment as the beginning of her services to the children. Id. After
this initial assessment, the Petitioner scheduled a phone conference with Ms.
White for September 30,2003, and planned to obtain contact information for Mr.
Bailey at that time. R. at 82 and 94. However, Mr. Bailey called Petitioner on
September 29, and expressed his frustration that he had not been contacted
before Petitioner had seen the chldren. R at 66-67 and 82. The Petitioner and Mr.
Bailey disagreed about whether she should hand over to him a copy of her
progress notes from her session with the boys. See R. at 83. Although Petitioner
acknowledged Mr. Bailey's right to obtain a copy of these notes, she explained to
Mr. Bailey that she felt that turning over the notes to him would jeopardize the
therapeutic relationship. R. at 83. Based on Mr. Bailey's request for copies of the
progress notes, Petitioner informed Ms. White on September 30, at their
scheduled phone conversation, that she would not continue therapy with the
children. R. at 85.
The parties shall share parental rights and responsibilities with respect to the minor
children. Shared parental rights means that most or all aspects of the child's welfare
remain the joint responsibility and right of both parents, so that both parents retain equal
parental rights and responsibilities and both parents must confer to make joint decisions
regarding the child's welfare. Matters pertinent to the children's welfare include, but are
not limited to, education, religious upbringing, medical, dental and mental health care,
travel arrangements, child care arrangements and residence. Parents who share parental
rights and responsibilities shall keep the other informed of any major changes affecting
the children's welfare and shall consult in advance to the extent practicable on decisions
related to the children's welfare.
On November 13, 2003, Mr. Bailey filed a complaint with the Board stating
that Petitioner had interviewed his children and agreed to services without
seehng his input or agreement, and alleged that this violated his right as a
parent with shared parental rights to gtve consent for his chldren's therapy. R.
at 1.
The Board conducted a hearing on December 10, 2004, in order to
determine whether or not Petitioner's actions, which are factually undisputed,
were in violation of her ethical duties to obtain informed consent prior to
commencing services. 32 M.R.S.A. § 7059(1)(E)allows the Board to suspend or
revoke a social worker's license for any gross negligence, incompetency, or
misconduct in the practice of professional social work. 02-46 C.M.R. Chapter 4(3)
sets forth grounds for discipline of social workers. 02-46 C.M.R. 4(3)(3)(G)
includes within the definition of "gross negligence, incompetency, or
misconduct," engaging in conduct which violates the NASW Code. Section 1.03
of the NASW Code outlines a social worker's responsibility to obtain informed
consent. Subsections (a) and (c) of this provision are applicable to situations in
which the social worker is treating chldren. They state:
(a) Social workers should provide services to clients only in the
context of a professional relationship based, when appropriate, on
valid informed consent. Social workers should use clear and
understandable language to inform clients of the purpose of the
services, risks related to the services, limits to services because of the
requirements of a third-party payer, relevant costs, reasonable
alternatives, clients' right to refuse or withdraw consent, and the
time frame covered by the consent. Social workers should provide
clients with an opportunity to ask questions.
(c) In instances when clients lack the capacity to provide informed
consent, social workers should protect clients' interests by seelung
permission from an appropriate third party, informing clients
consistent with the clients' level of understanding. In such instances
social workers should seek to ensure that the third party acts in a
manner consistent with clients' wishes and interests. Social workers
should take reasonable steps to enhance such clients' ability to give
informed consent.
At the hearing, Petitioner stated that, from her training, she understood that
she did not need to obtain consent from both parents in order to begn services
for a child, but that consent from one parent would be sufficient. R. at 95. She
also stated that it was her understanding that, even when worlung with divorced
families, one parent cannot necessarily veto the decision of another parent if one
parent decides to make a decision about treatment of any lund. R. at 96-97.
The Board by a vote of 5-0 found that Petitioner's actions were in violation
of the above sections because she did not obtain Mr. Bailey's consent prior to
providing services to the children. R. at 35. Pursuant to h s finding, the Board
put Petitioner's license on probation and ordered her to attend and pay for six
hour-long sessions with a licensed clinical social worker on the topic of
professional ethcs.
On February 14,2005, Petitioner moved the Board for a stay of enforcement
of the Board's decision, which was denied by the Board on March 21, 2005.
Petitioner filed separately in Superior Court for a stay of enforcement, which
request was denied on May 9,2005.
On appeal, Petitioner contends that the Board's interpretation of the
NASW Code is erroneous as a matter of law, that the standards for informed
consent upon whch the Board based its decision were so vague as to violate
petitioner's right to due process of law under the Constitutions of the United
States and the State of Maine, and that the Board failed to adduce sufficient proof
of the standard by whch Petitioner's conduct in t h s matter was to be judged
such that its decision was unsupported by any substantial evidence in the record.
STANDARD OF REVIEW
The court reviews the findings of the Board "to determine whether the
board 'abused its discretion, committed an error of law, or made findings not
supported by substantial evidence in the record."' Connolly v. Board of Social
Worker Licensure, 2002 ME 37, ql 6; 791 A.2d 125, 127. The court's review is
limited to determining whether the agency's conclusions are unreasonable,
unjust or unlawful in light of the record. lmagineering v. Dqartment of Professional
€2 Financial Regulation, 593 A.2d 1050, 1053 (Me. 1991). An administrative
decision will be sustained if, on the basis of the entire record before it, the agency
could have fairly and reasonably found the facts as it did. Seider v. Board of
Examiners of Psychologists, 2000 ME 206, P[ 8; 762 A.2d 551, 555. The burden of
proof rests with the party seekng to overturn the agency's decision. Id.
DISCUSSION
The Board's decision included the following statements among its
"Findings of Fact":
[NASW Code 1.03(a)] requirets] that the consent of both legal
custodians be given in this matter for there to be 'valid informed
consent.'
in this instance, the words in paragraph c [of NASW Code 1.031
that are in the singular should be read as if in the plural-e.g.
[sic]--'hrd party' should be read as 'thrd parties.'
R. at 35.
At oral argument on appeal, the Board asserts that these statements are
conclusions of law, and that accordingly the court's review should be deferential
in light of the Board's expertise in the profession of social work. See lsis
Development, LLC. v. Town of Wells, 2003 ME 149, 9 3, n. 4; 836 A.2d 1285, 1287.
Whether findings of fact or conclusions of law, these statements are the bases for
the Board's ultimate conclusion that Petitioner violated the Code by not
obtaining the informed consent of the father of the chldren prior to providing
services to those children. See R. at 35. Because these principles underlie the
Board's decision, and their categorization as either findings of fact or conclusions
of law is ambiguous on the record of this case, the court will analyze their
sufficiency as both findings of fact and conclusions of law.
(1)As findings of fact
The court reviews the Board's findings of fact to determine whether they
are supported by substantial evidence in the record. Conizolly v. Board of Social
Worker Licensure, 2002 ME 37, 9 6. The court will reverse the Board's findings of
fact only if no competent evidence supports these findings. Seider v. Board of
Examiners of Psychologists, 2000 ME 206, <IT 8.
No evidence, except Petitioner's own testimony, was presented to the
Board on the application in practice of either "valid" informed consent or
"appropriate h r d party" under the NASW Code. Rather, the Board appears to
have based its findings regarding these terms on its own experience that it is the
practice of social workers to get the signature of both parents when treating
children of divorce. See R. at 128. Although the Board is presumed to be expert
in matters pertaining to social work, it is not entitled on that basis to supplement
the facts before it with its own factual conclusions, because this does not afford
the Petitioner an opportunity to cross-examine or refute them.2Rather, the Board
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Only after the evidence was closed, R. at 124, did the Board discuss the practice of clinical social workers
before commencing treatment of children of divorced parents. See R. at 127-129.
must base its findings of fact on evidence presented to it. The Board could have
properly based these findings of fact, for example, on testimony from a licensed
social worker that students of social work are taught in their ethcal training that
valid informed consent refers to consent from both parents in a shared custody
situation, or that "appropriate third party" is read in the plural where parents
have shared custody of chldren, and informed consent is sought. Accordingly,
insofar as these statements are findings of fact, the court finds that they are
unsupported by substantial evidence in the record. See Seider v. Board of
Examiners of Psychologists, 2000 ME 206, ¶ 8.
(2) As Conclusions of Law
The court also reviews the Decision of the Board to determine whether it
committed an error of law. Connolly v. Board of Social Worker Licensure, 2002 ME
36, 9 6. The court's review is limited to determining whether the agency's
conclusions are unreasonable, unjust or unlawful in light of the record.
Imagineering v. Department of Professional O Financial Regulation, 593 A.2d at 1053.
NASW Code 5 1.03(a)and (c) together state that social workers should
provide services based on "valid informed consent," and that, where clients lack
the capacity to provide informed consent, social workers should seek permission
from "an appropriate third party." The Board interpreted these provisions to
mean that Petitioner was required to seek permission from both parents of the
boys with whom she had begun treatment, i.e., that what is singular in the Code
should in fact be read as plural in this case. The Board, however, does not
support t h s conclusion with any explanation or analysis in its deliberations or
decision, and thus provides no basis to affirm a conclusion that contradicts the
plain meaning of the statute.
The plain meaning doctrine is a first principle of statutory interpretation.
See Grifin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982).Under t h s
doctnne, only in rare cases, where the literal application of a statute will produce
a result demonstrably at odds with the intention of its drafters, will a court not
apply the plain meaning of a statute. Id. Because the Board articulated no
analysis to support the conclusion that a literal interpretation of t h s section, in
the singular, would produce a result demonstrably at odds with the intention of
its drafters, the Board's interpretation of the Code provisions is not entitled to
deference. See id.
(3) NASW Code tj 1.03(a)and (c), as Interpreted by the Board, is an
Impermissibly Vague Standard of Conduct to Apply to Petitioner
Petitioner also raises serious concerns about the validity of the Board's
determination under the Due Process Clauses of the United States and Maine
Constitutions. Petitioner asserts that, under Balian v.Board of Licensure in
Medicine, sanctions with respect to her license are subject to due process
protections. 1999 ME 8, ¶ 11; 722 A.2d 364,367. Objections based on vagueness
under the Due Process Clause rest on lack of notice, and hence may be overcome
in any specific case where reasonable persons would know that their conduct is
at risk. Maynard v. Carfxuright, 486 U.S. 356,361 (1988). Vagueness challenges to
regulations not threatening First Amendment interests are examined in light of
the facts of the case at hand; the rule is evaluated on an as-applied basis. Id.
The NASW Code need not need to state on its face the prescribed conduct
in every factual scenario for it to be constitutionally applicable to a professional
withn the field. See Mitchell v. Maine Harness Racing Comm'n, 662 A.2d 924, 927
(Me. 1995); Cobb v. Maine Bd. of Counseling Professionals Licensure, 2003 Me. Super.
LEXIS 270, ¶5. It need only be reasonably interpretable by those professionals to
allow them to conform their conduct to its requirements. See id. However,
where, as here, the plain language of the NASW Code would lead a reader to
understand that informed consent for treatment of a minor must be obtained
only from one appropriate third party, more than a summary conclusion to the
contrary by the Board is required for t h s court to find that Petitioner did, in fact,
have adequate notice of the standard of conduct by which she was expected to
abide. See id. There is no evidence in the record to suggest that social workers
generally understand the applicable terms of the NASW Code as the Board has
interpreted them. Nor has the Board elaborated on the meaning and purpose of
the provisions, such that it would be apparent how the Board's interpretation
conforms with that purpose. Thus, the Board's determination that Petitioner was
in violation of NASW Code 5 1.03(a)and (c) is, in light of the record, an unlawful
imposition on Petitioner's due process right to fair notice. See Maynard v.
Cartwright, 486 U.S. at 361.
The entry is
The Board of Social Worker Licensure's decision is REVERSED. The matter is
remanded to the Board with instructions to dismiss the complaint with prejudice.
J
Justice, Superior Court