The opinion
Filed 2/28/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ROBERT GEFFNER, B322991
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22STCP00012)
v.
BOARD OF PSYCHOLOGY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mitchell L. Beckloff, Judge. Reversed with
directions.
Klinedinst, Earll M. Pott and Robert M. Shaughnessy, for
Plaintiff and Appellant.
Rob Bonta, Attorney General, Gloria L. Castro, Assistant
Attorney General, and Matthew M. Davis and Giovanni F. Mejia,
Deputy Attorneys General, for Defendant and Respondent.
Law Offices of Seth L. Goldstein, Seth L. Goldstein for
Amicus Curiae on behalf of Plaintiff and Appellant.
_________________________
The California Board of Psychology, Department of
Consumer Affairs (the Board) revoked Dr. Robert Geffner’s
license after it found he violated the American Psychological
Association’s Ethical Principles of Psychologists and Code of
Conduct (Ethical Standards)1 by evaluating two children for
suicidality without their father’s consent, evaluating the children
without consulting their existing therapist, making custodial
recommendations that went beyond the scope of an emergency
risk assessment, and delegating the duty to warn father that one
child had thoughts about killing him. Dr. Geffner petitioned for a
writ of mandamus to vacate the Board’s decision. The trial court
denied the petition.2 We now reverse the judgment denying his
petition.
1
Business and Professions Code section 2936 requires the
Board to “establish as its standards of ethical conduct relating to
the practice of psychology, the ‘Ethical Principles and Code of
Conduct’ published by the American Psychological Association
(APA). Those standards shall be applied by the board as the
accepted standard of care in all licensing examination
development and in all board enforcement policies and
disciplinary case evaluations.” (See also American Psychology
Assoc., Ethical Principles of Psychologists and Code of Conduct
(Ethical Standards) <https://www.apa.org/ethics/code [as of Feb.
28, 2024], archived at <https://perma.cc/4TQ8-MZYN>.)
2
The Board also found that Dr. Geffner violated the Ethical
Standards by relying on a colleague’s interview of the children
rather than by interviewing them himself, but the trial court did
not uphold that finding.
2
BACKGROUND
I. Dr. Geffner’s evaluation
Mother and father have two children, Minor S. and Minor
N., twins born in 2004. The parents separated when the twins
were nine years old. A family court issued this order: “Both
parents shall have access to information about the health and
education of the children. Each parent shall be responsible to
contact the school and medical provider to receive the
information directly from the school and provider. Notification
of Medical Emergency: In the event either child receives
emergency medical treatment, the parent who arranges for this
treatment shall notify the other parent as soon as is reasonably
possible. Both parents shall place the name of both parents on
any listings for emergency contact with any educational,
activity, childcare, or medical provider.”3
In 2016,4 Dr. Geffner was a California licensed clinical
psychologist who had been in practice for about 45 years.
Although neither mother nor the children were Dr. Geffner’s
patients, mother called him on June 29 and told him that three
weeks earlier she had overheard the children, who were then 12
years old, discussing killing themselves or father in connection
with an upcoming court-ordered visit with father. Mother told
the children’s therapist, Lori Williams, about the children’s
threats, but Williams was going on vacation and said they could
3
Dr. Geffner asserts that the order, which also outlined a
course of reunification visits with father, violated the Family
Code. Whether it does is not before us and is irrelevant to the
issues on appeal.
4
Unless otherwise noted, all dates refer to 2016.
3
discuss it after the upcoming July 4 holiday. Dr. Geffner asked
mother basic questions, including about the children’s custody
arrangement. Mother reported that she and father had joint
legal custody, she had sole physical custody, the children had a
therapist, the family court had ordered the children to have
supervised visitation and reunification with father, and there
was an upcoming visit right after the holidays. Dr. Geffner
advised mother to contact Williams.
On June 30, mother called Dr. Geffner again and said
Williams had already left town. Dr. Geffner gave mother the
names of two psychotherapists in the Bay Area, where mother
lived.5 After they told mother they were unavailable, mother
again called Dr. Geffner, who contacted Dr. Juhayna Ajami, his
former postdoctoral fellow who was in the Bay Area. On July 1,
Drs. Geffner and Ajami agreed to collaboratively evaluate the
children.
The next day, Saturday, July 2, Dr. Ajami met the children
in person to evaluate them. Mother signed a consent form for the
evaluation. The doctors did not seek or obtain father’s consent.
Mother reported that Minor S. had told her just the night before,
July 1, that he was trying to figure out how to kill himself, but he
had ruled out using a knife.
Minor S. told Dr. Ajami that every few weeks he wanted to
kill himself and that seeing father triggered these feelings. He
denied having a plan to kill himself, but he had contemplated
stabbing himself or jumping off a cliff. One month earlier, he had
scratched himself because he “ ‘needed to hit something or
5
Dr. Geffner was in San Diego.
4
scratch something.’ ” After a visit with father, Minor S. took a
knife from a restaurant, intending to stab himself in the leg.
Minor N. said he first harbored suicidal thoughts when he
started visiting father, and he thought about suicide just the
night before, when father was mentioned in conversation. He
had thought about hiring a hitman to kill father, but his plan had
too many flaws; for example, “we would have to be in Los Angeles
or Florida so we wouldn’t be suspects.” Minor N. denied having a
current plan or intent to kill father. Instead, he said he would
probably kill himself by using a knife or jumping off a building if
he had to live with father. He thought that shooting himself
would be best, “ ‘but it would probably hurt.’ ” Still, Minor N.
wanted to live and go to college, and he cited other reasons he
would not commit suicide: his mother, grandparents, and
brother.
Dr. Ajami assessed the children using the Trauma
Symptom Checklist for Children, which measures posttraumatic
stress and related psychological symptomatology in children who
have experienced traumatic events. Both children’s scores on the
depression scale suggested “possible subclinical (but significant)
depressive symptomatology.” They struggled with sadness,
unhappiness, and loneliness; episodes of tearfulness; and
“depressive cognitions such as guilt and self-denigration.” Such
elevations “on this clinical scale may be associated with
suicidality or self-injurious behavior.” The children endorsed
wanting to hurt and to kill themselves “lots of times.” On
another assessment, the children endorsed statements about
being sad and unsure things would work out, not liking
themselves, feeling like crying many days, and feeling alone.
Further, Minor N.’s Posttraumatic Stress scale was clinically
5
elevated, which suggested he was preoccupied with past
traumatic events. His score on the anger scale suggested he was
having angry thoughts and behavior, and mother corroborated
that he lashed out at others. Minor N. endorsed wanting to hurt
other people, which was consistent with his homicidal ideation
toward father. And although Minor N. denied wanting to commit
suicide during the interview, he was close to Minor S. and said
they would commit suicide together. Therefore, “he should still
be considered at a high risk for self-harm due to his brother’s
reported suicidal ideation.” Both children reported increased
symptoms, particularly suicidal ideation, around the time they
are scheduled to see father.
The doctors prepared their Confidential Emergency
Psychological Evaluation on July 3 and 4 and emailed it to
mother on the evening of July 4. In addition to reporting the
above interview and test results, the doctors noted that “children
can have the intent to cause self-harm or death regardless of a
full comprehension of the lethality or finality of the act.
[Fn. omitted.] Therefore, they may engage in potentially
dangerous behavior in an attempt to alleviate their emotional
pain without fully understanding the consequences of their
actions. Furthermore, they may accidentally engage in
potentially lethal behavior towards themselves or others. As
such, their disclosures of self-harm and harm to others should not
be dismissed and should be taken seriously in order to ensure
both their safety as well as the safety of others.”
The doctors then made five recommendations: (1) the
children “cease contact” with father until they had “more
extensive treatment for their reported symptoms, and their risk
for self-harm and harm to others is eliminated. Since they are
6
performing well in school, report a positive atmosphere in their
maternal home, and the symptoms appear to be situation specific
and related to contact with their father, outpatient trauma
treatment at least weekly by a clinician specifically trained in
dealing with child trauma is recommended”; (2) the children have
more frequent treatment, at least once a week, and trauma-
focused psychotherapy; (3) the children should undergo another
risk assessment before reinstating contact with father and the
current report should be provided to the children’s therapist and
relevant parties; (4) the length of treatment was unpredictable;
and (5) within 24 hours father needed to be told about his
children’s feelings and statements about harming him—
otherwise, the doctors would report it. The report further stated,
“In addition, based upon this evaluation, it does not appear that
either boy is at risk for suicidal potential or harm to others if they
can be reassured that there will not be contact with their father,
as this appears to be the strongest risk factor at this time.”
During a family court appearance on July 5, mother gave
Dr. Geffner’s report to the court and father. Mother’s attorney
advised Dr. Geffner the same day that the report had been
provided to father.
On July 7, father’s lawyer informed Drs. Ajami and Geffner
that father had joint legal custody of the children, the doctors had
evaluated the children without father’s knowledge or consent, the
testing violated a court order, and father did not consent to the
doctors treating or having any further contact with the children.
Dr. Geffner had no further contact with the children.
Four days later, on July 11, Dr. Geffner wrote a follow-up
letter at the request of mother’s attorney. In that letter, he
responded to questions posed by mother’s attorney. The attorney
7
first asked whether a meeting between father and the children
fell within Dr. Geffner’s no-contact recommendation. In
response, Dr. Geffner clarified that the no-contact
recommendation would include a meeting with father and the
children in a reunification session. Dr. Geffner also expressed
concern about the trauma training and expertise of the therapist
and mediator who had recommended a reunification meeting
with father, suggesting that they “may be ignoring our
emergency evaluation interviews and assessment measures” by
forcing the children to meet with father. Second, the attorney
asked what mother should do if the children made any further
statements about harming themselves or others.
Dr. Geffner responded that mother should notify the children’s
therapist and take them to an emergency room or psychiatric
clinic. Third, the attorney asked why the children needed
specialized trauma treatment, and Dr. Geffner responded that
they had elevated trauma symptoms. Also, Minor N. had
“elevated his posttraumatic stress scale.”
II. The Board’s accusation, trial, and decision
In July 2017, father filed a consumer complaint with the
Board against Dr. Geffner. The Board then filed an accusation
against Dr. Geffner charging him with gross negligence, repeated
negligent acts, and violating the Ethical Standards, psychology
licensing law, or regulations.6
6
The Board also filed an accusation against Dr. Ajami, but
the proceedings against her are not at issue.
8
A. Hearing evidence
At the August 2021 hearing on the accusation, Dr. Geffner
and two experts testified, among others.
1. Dr. Geffner’s testimony
As to why he did not seek father’s consent, Dr. Geffner
testified that normally he would ask to see a custody agreement,
but this was an emergency given the children’s statements. In
his experience, the person having physical custody of a child can
seek appropriate treatment if an emergency arises. Further, it
was clear that father was the trigger, so it was important to
assess the threats. Dr. Geffner did not refer the children to an
emergency room because they had sufficient protective factors,
such as family support.
Dr. Geffner also testified that mother told him that she had
tried to contact the children’s therapist, but the therapist was
leaving town and was unavailable until after the holidays. He
asked mother to follow up with the therapist to let her know how
serious the situation was and to see if she could do an emergency
evaluation. Mother called Dr. Geffner back and again said the
therapist was unavailable, so Dr. Geffner gave her the names of
two Bay Area psychologists. Dr. Geffner confirmed that he did
not personally try to contact the children’s therapist because his
focus was on the emergency, on whether the children posed a
serious risk to themselves. Had he been conducting a general
forensic evaluation or general psychological evaluation, then he
would have contacted the treating team.7
7
In an interview Dr. Geffner gave to the Board before the
hearing, he similarly testified that when mother first contacted
9
Dr. Geffner did not consider his assessment of the children
to be a custody evaluation, which is a comprehensive evaluation
with the goal of recommending what is in a child’s best interests
regarding access and visitation. Instead, he performed a one-
time emergency evaluation or risk assessment. Given that this
was an emergency, mother had physical custody of the children,
and father triggered the children’s feelings, Dr. Geffner’s focus
was on assessing the seriousness of the threats.
Dr. Geffner also concluded that there was no necessity for a
child abuse report, given the children’s and mother’s denial of
physical or sexual abuse. Further, his understanding of his duty
to warn was there must be a serious risk of imminent violence to
an identified victim by an identified perpetrator. That was not
present here, because Minor N. did not have a realistic plan for
hurting father. The children also had protective factors; for
example, they did not want to die, they were doing well in school,
and they had friends. Although the plans to hurt themselves
were more realistic, the children’s thoughts of self-harm were
focused on seeing father. There was no risk “almost at all” if they
did not have contact with father.
2. Expert testimony
Two experts testified at the hearing. Dr. Lisa Davidson, a
clinical psychologist, neuropsychologist, and expert reviewer,
him, he had asked her to see if the children’s therapist could
conduct the emergency evaluation. However, mother reported
that the therapist was out of town, and mother could not reach
her. Dr. Geffner did not personally call the therapist to see if
they had an emergency protocol, but when he asked mother if the
therapist worked with someone else who could see the children,
mother indicated there was no one else.
10
testified for the Board. Dr. Eugune Roeder, a psychologist who
had been an expert reviewer for the Board for 30 years, testified
for Dr. Geffner. Both experts agreed that the purpose of an
emergency evaluation is to determine whether there is an
imminent risk of harm. They otherwise testified as follows.
3. Dr. Davidson’s testimony
As to informed consent, Dr. Davidson said that on having
received this referral, she would have determined the custodial
arrangement, because “you need to have both parents’ blessing to
proceed with their children.” The failure to obtain father’s
consent was an extreme departure from the standard of care.
Dr. Geffner’s failure to reach out to the children’s treating
professionals also was an extreme departure from the standard of
care. They could have provided a “well-rounded perspective and
a complete analysis” of the children. Dr. Geffner should not have
relied on mother’s representation that the children’s therapist
was unavailable because “you want to be sure that you were
doing your due diligence.”
Dr. Davidson testified that in performing an emergency
evaluation, the focus of the recommendations is on what will keep
the children “safe and keep others safe. So it’s the homicide and
suicide risk.” Dr. Geffner’s recommendation that the children
and father have no contact was inconsistent with an emergency
evaluation and instead was “a long-term ramification based on
limited information” and addressed more than the immediate
need. Dr. Davidson thus viewed the evaluation as a custody
evaluation. Similarly, Dr. Geffner’s July 11 follow-up letter was
outside the appropriate timeframe for an emergency
psychological evaluation.
11
Also, the emergency evaluation did not occur in an
appropriate timeframe, because mother called Dr. Geffner on
June 29 but the clinical interviews were not conducted until July
2, and the report was prepared the following day.
The standard of care requires psychologists to notify
someone if a threat of harm has been made against them.
Because the threat was to father, Dr. Geffner had a duty to warn
even if the threat was not realistic and there was no imminent
risk of violence. It was the psychologist’s duty to give the
warning, not mother’s.8
The standard of care also required Dr. Geffner to meet with
the children to conduct any purported emergency evaluation. He
could not rely on another psychologist to perform the clinical
interviews or other functions.
4. Dr. Roeder’s testimony
Dr. Roeder generally opined that neither Dr. Geffner nor
Dr. Ajami violated the Ethical Standards or engaged in any
extreme departure from a standard of care.
As to the specific issue of parental consent, Dr. Roeder
agreed that typically it is appropriate to inform both parents
before conducting an evaluation, except when there is an
emergency situation and doing so would not benefit the child.
Here, the concern with notifying father was that the children had
identified him as the trigger for their suicidal emotions. Further,
he disagreed that Dr. Geffner should have referred the children
8
Dr. Davidson also opined that a report of child abuse
should have been made against father because “basically the
outcome of the report yielded a result that would indicate that
the father was definitely doing some sort of harm to his children.”
12
to an emergency room, as this was more of a psychological
emergency. Also, his reading of the custody order required the
other parent to be informed within a reasonable time of the
children receiving emergency care, and here, the psychologists
required father be informed within 24 hours.
Next, he did not agree that Dr. Geffner performed a child
custody evaluation or made recommendations regarding custody.
A custody evaluation would be “dramatically more extensive” and
would include parenting history and abilities and recommend a
parenting plan.
Nor did Dr. Roeder agree that Dr. Geffner had an
obligation under the circumstances to consult the children’s
treatment team before or during his evaluation. While
Dr. Roeder agreed “it would definitely be best to consult with the
treaters” when conducting this type of evaluation, here, the
treaters were unavailable. Given that, Dr. Geffner’s lack of
contact with the treatment team was within the standard of care.
Dr. Roeder did not consider the child’s threat to hire an out-
of-state hitman to be a realistic threat of violence. A risk of
serious violence did not exist when the evaluation was done, but
it could occur if the children were forced to spend time with
father.
B. The Board’s decision
The Board issued a decision that became effective in
December 2021. The Board found that the experts agreed an
“emergency evaluation is performed to identify whether there is
an imminent risk of harm, and if so to identify what
interventions are necessary. An emergency evaluation is not a
custody evaluation and is not a comprehensive psychological
evaluation.”
13
As to the specific issues, the Board found Dr. Davidson’s
opinions more persuasive and consistent with the evidence.
Accordingly, the Board found that Dr. Geffner violated the
Ethical Standards in five ways.
First, Ethical Standards 3.10 and 9.03 require
psychologists to obtain informed consent before performing
assessments. The evidence showed that Dr. Geffner could have
obtained father’s consent because the evaluation was arranged
over several days “and was not of such an emergency nature that
Father could not have been contacted,” father had a right to be
contacted per the court order, and the doctor continued to be
involved in the matter (presumably by responding to mother’s
lawyer’s questions) after being told father did not consent.
Second, Dr. Geffner failed to consult the children’s existing
providers, in violation of Ethical Standard 3.09, which requires
psychologists to coordinate care with other professionals when
indicated and appropriate. Relying on Dr. Davidson’s opinion,
the Board found that Dr. Geffner unreasonably accepted without
question mother’s representation that the children’s therapist
was unavailable. The Board also noted that Dr. Davidson had
said most professionals have emergency protocols in place if they
are unavailable. And even Dr. Roeder agreed it was “ ‘best’ ” to
consult existing treating professions before performing an
evaluation.
Third, the report exceeded the scope of an emergency
evaluation, which is to identify an imminent risk. The report was
not limited to an imminent risk assessment and instead included
recommendations implicating parental visitation and future
treatment, akin to a custody evaluation. “The reports made
14
specific recommendations regarding parental contact that were
not appropriate for an emergency evaluation.”
Fourth, Dr. Geffner departed from the standard of care by
issuing two reports containing psychological assessments and
recommendations without personally assessing the children and
without making it explicit he had not done so.
Finally, Dr. Geffner had a duty to warn father personally of
Minor N.’s homicidal ideation, and the doctor should not have
relied on mother to warn father. His actions violated Ethical
Standard 3.04, which requires psychologists to take reasonable
steps to avoid harming patients to minimize foreseeable harm.
The Board accordingly found Dr. Geffner had committed
gross negligence. It revoked his license but stayed revocation and
placed him on five years’ probation on various terms and
conditions.
III. Dr. Geffner petitions for a writ of administrative
mandamus
Dr. Geffner petitioned for a writ of administrative
mandamus to set aside and vacate the Board’s decision. In June
2023, the trial court issued its judgment denying the petition.
Exercising its independent judgment, the trial court, as an initial
matter, rejected Dr. Geffner’s assertion that the Board’s decision
was legally insufficient because it did not explain the
administrative law judge’s reasoning. As to the Board’s five
findings, the trial court found as follows.
First, the weight of the evidence supported the finding that
Dr. Geffner conducted a psychological assessment of the children
when there was no “true emergency,” as evidenced by the
troubling statements having been made three weeks before
mother contacted the doctor. There was no evidence showing
15
that the doctor did not have time to contact father before
evaluating the children. That the doctor believed father was the
“trigger” did “not inform on whether [Dr. Geffner] should have
obtained Father’s consent to assess” the children, as the children
did not need to be told father had been informed.
Second, the weight of the evidence supported the finding
that Dr. Geffner failed to try to contact Williams and that this
failure was an extreme departure from the standard of care and
violated Ethical Standard 3.09. The trial court noted that
Dr. Roeder had agreed it would have been best to contact
Williams but excused Dr. Geffner’s failure to “do so in deferential
reliance on Mother’s statement of unavailability.” However, as
Dr. Davidson explained, Dr. Geffner should have independently
tried to contact Williams, given the contentious child custody
proceedings. “As a matter of common sense, independent
verification would effectively [ ] rule out any possibility of motives
related to [the] contentious child custody dispute.” Also,
Williams could have provided information that would have
informed Dr. Geffner’s evaluation.
Third, Dr. Geffner’s report went beyond a simple risk
assessment of dangers from the children’s homicidal and suicidal
ideations. Although not labeled as recommendations concerning
parenting or custody, the report recommended no contact with
father, which “is effectively a general and long-term
recommendation for complete physical custody with Mother
pending some further event; it addresses Father’s access to the
children. [Citation.] A recommendation of no contact with
Father is not merely about immediate risk and immediate need.
[Citation.] [Dr. Geffner’s] recommendations through an
emergency assessment that addressed more than the need to
16
cancel Father’s next scheduled visit because of risk to the Boys
breached the standard of care and the departure was extreme.”
Fourth, the trial court rejected Dr. Geffner’s argument that
he did not have a duty to warn father of Minor N.’s homicidal
ideation because the risk was not realistic. The argument was
inconsistent with the report’s recommendation that father be told
about it within 24 hours. The duty to warn was not delegable to
mother.
Fifth, the trial court reversed the finding that Dr. Geffner’s
failure to meet the children personally and reliance on
Dr. Ajami’s interviews breached the standard of care.
Dr. Geffner timely appealed.
DISCUSSION
I. Standard of review
In ruling on a petition for a writ of administrative mandate,
the trial court reviews the administrative record to determine
(1) whether the administrative agency exceeded its jurisdiction,
(2) whether there was a fair trial, and (3) whether there was any
prejudicial abuse of discretion. (Code Civ. Proc., § 1094.5,
subd. (b).) An abuse of discretion is established if the
administrative agency has not proceeded in the manner required
by law, the order or decision is not supported by the findings, “or
the findings are not supported by the evidence.” (Ibid.)
When reviewing an agency’s findings in a professional
licensing discipline proceeding, the trial court “ ‘exercise[s] its
independent judgment on the facts, as well as on the law . . . .’ ”
(Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811–812
(Fukuda), italics added; see also Estrada v. Public Employees’
Retirement System (2023) 95 Cal.App.5th 870, 881.) Under the
17
independent judgment standard, “ ‘ “[t]he findings of the [agency]
come before the court with a strong presumption of their
correctness, and the burden rests on the complaining party to
convince the court that the [agency]’s decision is contrary to the
weight of the evidence.” ’ (Fukuda, supra, 20 Cal.4th at p. 812.)”
(Front Line Motor Cars v. Webb (2019) 35 Cal.App.5th 153, 160,
italics omitted.) Nonetheless, while the trial court begins its
review with a presumption that the administrative findings are
correct, “ ‘it is only a presumption, and may be overcome.
Because the trial court ultimately must exercise its own
independent judgment, that court is free to substitute its own
findings after first giving due respect to the agency’s findings.’
(Fukuda, at p. 818.)” (Land v. California Unemployment Ins.
Appeals Board (2020) 54 Cal.App.5th 127, 139; see also Cassidy
v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 626
(Cassidy) [“ ‘The scope of the trial before the superior court is not
an unqualified or unlimited trial de novo, but the trial proceeds
upon a consideration of the record of the administrative
proceedings which is received in evidence and marked as an
exhibit’ ”].)
“ ‘On appeal from a decision of a trial court applying its
independent judgment, we review the trial court’s findings rather
than those of the administrative agency.’ ” (Yazdi v. Dental Bd.
of California (2020) 57 Cal.App.5th 25, 32.) We review the trial
court’s findings under the substantial evidence test and
determine whether substantial evidence supports the trial court’s
conclusions. (Fukuda, supra, 20 Cal.4th at p. 824; Yazdi, at
p. 32; Rand v. Board of Psychology (2012) 206 Cal.App.4th 565,
574–575; Cassidy, supra, 220 Cal.App.4th at p. 627.) However,
we are not bound by any legal interpretations made by the
18
administrative agency or the trial court; rather, we make an
independent review of any questions of law, such as whether the
agency failed to comply with required procedures or applied an
incorrect legal standard. (Rand, at pp. 574–575; Environmental
Protection Information Center v. California Dept. of Forestry &
Fire Protection (2008) 44 Cal.4th 459, 479.)
II. The Board’s decision is not ambiguous or conclusory
As an initial matter, Dr. Geffner contends that the Board’s
decision failed to comply with Code of Civil Procedure section
1094.5 because it was ambiguous and conclusory. We disagree.
Code of Civil Procedure section 1094.5 requires an agency
to set forth findings in its decision that bridge the analytic gap
between the evidence and the ultimate decision or order.
(Topanga Ass’n for a Scenic Community v. County of Los Angeles
(1974) 11 Cal.3d 506, 514–515 (Topanga).) This findings
requirement “serves to conduce the administrative body to draw
legally relevant sub-conclusions supportive of its ultimate
decision; the intended effect is to facilitate orderly analysis and
minimize the likelihood that the agency will randomly leap from
evidence to conclusions.” (Id. at p. 516.) Further, the “findings
enable the reviewing court to trace and examine the agency’s
mode of analysis.” (Ibid.; see also Oduyale v. California State Bd.
of Pharmacy (2019) 41 Cal.App.5th 101, 113 [agency must
provide reasoned progression from factual findings to justify
penalty imposed, including a statement of factual and legal basis
for the decision].) Although the findings need not be extensive or
detailed, mere conclusory findings without reference to the record
are inadequate. (Environmental Protection Information Center v.
California Dept. of Forestry & Fire Protection, supra, 44 Cal.4th
at p. 517.)
19
Citing Topanga, Dr. Geffner contends that the Board failed
to link its conclusions to the evidence. To support this
contention, he primarily cites evidence he thinks the Board
should have addressed and ignores evidence the Board did
address. But, as the trial court observed below, Dr. Geffner’s
contention rests on an incomplete reading of the Board’s decision.
On the issue of father’s consent, for example, the Board found
Dr. Davidson’s opinion more persuasive based on evidence that
the evaluation was arranged over several days, psychological
assessments were performed, and a court order gave father the
right to be informed of health matters. Thus, the Board
supported its conclusion (Dr. Geffner should have sought or
obtained father’s consent to the evaluation) with cited evidence
(timing of evaluation, nature of emergency, and court order).
Otherwise, Dr. Geffner’s contention that the Board’s
decision violates Topanga is largely an off-topic critique of
Dr. Davidson’s testimony, rather than a clear explanation of
where the supposed gaps between the evidence and the Board’s
conclusions lie. For example, he criticizes Dr. Davidson’s
background, faults the Board for not explaining why
Dr. Davidson’s alternative to treating the children (referral to an
emergency room) was superior to what he did (performing an
outpatient risk assessment), and argues he had no legal duty to
report father to Child Protective Services, was not required to
obtain father’s consent under the family court order, and had no
duty to warn father of Minor N.’s homicidal ideations.
Dr. Geffner concludes by calling Dr. Davidson’s testimony a
“sophomoric, internally inconsistent critique of Doctor Geffner’s
conduct, that misrepresented facts and misapplied the law.”
20
In short, Dr. Geffner attempts to relitigate evidentiary and
legal issues having nothing to do with Topanga’s procedural
dictates about what must be in an agency’s decision. Such issues
are better addressed in his substantive argument about the
sufficiency of the evidence and the law. We now turn to those
issues.
III. Father’s consent
The trial court found that Dr. Geffner violated Ethical
Standards 3.10 and 9.03 by failing to obtain father’s consent
before evaluating the children. Neither the Ethical Standards
nor the evidence supports that conclusion.
Ethical Standard 3.10 requires psychologists conducting
research or providing assessment therapy, counseling, or
consulting services to obtain “the informed consent of the
individual or individuals using language that is reasonably
understandable to that person,” except when consent is not
required by law or otherwise per the Ethical Standards. “For
persons who are legally incapable of giving informed consent,
psychologists nevertheless (1) provide an appropriate
explanation, (2) seek the individual’s assent, (3) consider such
persons’ preferences and best interests, and (4) obtain
appropriate permission from a legally authorized person, if such
substitute consent is permitted or required by law. When
consent by a legally authorized person is not permitted or
required by law, psychologists take reasonable steps to protect
the individual’s rights and welfare.” (Ibid.)
Ethical Standard 9.03, subdivision (a), provides that
psychologists must obtain informed consent as described in
Ethical Standard 3.10 “except when (1) testing is mandated by
law or governmental regulation; (2) informed consent is implied
21
because testing is conducted as a routine educational,
institutional, or organizational activity . . . ; or (3) [a] purpose of
the testing is to evaluate decisional capacity.”
These Ethical Standards thus require psychologists to
obtain informed consent before conducting an assessment.
However, they do not clarify who is a legally authorized person
whose consent must be sought where, as here, minors and
exigent circumstances are involved. The general rule as to
minors is a parent or guardian has authority to consent to
medical treatment for them. (See Cobbs v. Grant (1972) 8 Cal.3d
229, 244.)
In the present case, the trial court, parties, and amicus
agree that father’s consent was unnecessary if this was an
emergency. Stated otherwise, mother alone could consent if the
children’s suicidal and homicidal ideations constituted an
emergency. The trial court thus found that Dr. Geffner had to
obtain father’s consent because the circumstances were not an
emergency, stating, “[N]othing suggests when there is no
emergency—as here—[Dr. Geffner] could ethically proceed with
an assessment without both Mother and Father’s consent.”9 The
trial court further said that the weight of the evidence supported
the Board’s finding that Dr. Geffner “elected to conduct a
psychological assessment of minor children where there was no
true emergency.” (Italics added.)
Even though courts have recognized that it is hard to
define “emergency” and that what constitutes an emergency may
vary depending on the context, the trial court’s finding that no
9
The Board similarly characterized the situation as “not of
such an emergency nature that Father could not have been
contacted.” (Italics added.)
22
“true emergency” existed under these circumstances finds little
support in the law or evidence. Bryant v. Bakshandeh (1991) 226
Cal.App.3d 1241 considered what is an emergency in a medical
context. In that case, a physician claimed he was exempt from
liability for a patient’s death under Good Samaritan laws because
he provided medical care in response to a medical emergency.10
The court said that the test for determining the existence of an
emergency is an objective one, based on whether the undisputed
facts “ ‘establish the existence of an exigency of “so pressing a
character that some kind of action must be taken.” ’ ” (Id. at
p. 1247; see also Valdez v. Costco Wholesale Corp. (2022) 85
Cal.App.5th 466, 474 [undisputed facts established that fistfight
was an emergency under Good Samaritan law].) In a similar
context, Justice Croskey observed, “It would seem obvious that in
determining whether a patient’s condition constitutes such an
emergency the trier of fact must consider the gravity, the
certainty, and the immediacy of the consequences to be expected
if no action is taken. However, beyond observing that these are
the relevant considerations, the variety of situations that would
qualify as emergencies under any reasonable set of criteria is too
great to admit of anything approaching a bright line rule as to
just how grave, how certain, and how immediate such
consequences have to be.” (Breazeal v. Henry Mayo Newhall
Memorial Hospital (1991) 234 Cal.App.3d 1329, 1338.) Applying
10
The Good Samaritan law defines “ ‘emergency medical
services’ ” and “ ‘emergency medical care’ ” as those “medical
services required for the immediate diagnosis and treatment of
medical conditions which, if not immediately diagnosed and
treated, could lead to serious physical or mental disability or
death.” (Health & Saf. Code, § 1799.110, subd. (b).)
23
these standards, emergencies have been found where the
consequences of inaction ranged from an immediate certainty of
death to a high probability of future risk of serious injury. (Ibid.)
In this case, nobody testified that there was no risk of
serious injury to the children based on their suicidal and
homicidal ideations. Yet, in finding that no “true emergency”
existed, the trial court cited Dr. Davidson’s testimony, even
though she did not testify that exigent circumstances were
absent. To the contrary, she said, “So in this matter, I would
have—if there was homicide or suicide at all in this, any type of
risk, which we did determine from the notes that there—there
appeared to be, you know, risk factors there, then I would have
recommended that mother take them immediately to” an
emergency room or psychiatry program, “somewhere to get
properly evaluated. That’s an emergency evaluation.” (Italics
added.) On cross-examination, Dr. Davidson agreed that an
“emergency evaluation that involves homicide or suicide risk is
usually then sent out to that type of agency (emergency services)
if there’s imminent risk.” Finally, in her written report to the
Board evaluating Drs. Ajami and Geffner, Dr. Davidson
characterized the situation with the children as “an emergent
one,” noting that it was “unusual a comprehensive psychological
evaluation would be conducted in a time of emergency and need,”
and said that “[c]learly in this matter, an emergency
suicide/homicide situation for the . . . brothers appeared.” (Italics
added.)
Dr. Davidson thus agreed that the children exhibited risk
factors and that this was an emergency situation. At no time did
she say it was not an emergency. Instead, she said she would
24
have managed the emergency differently, by referring the
children to an emergency room and not preparing a report.
Dr. Davidson said that an emergency evaluation is an “on the
spot determination” and not “an emergency pscyh eval that has a
report attached to it like this.” She therefore did not agree with
how Dr. Geffner conducted the emergency evaluation. That is not
the same as concluding that 12-year-old children expressing
persistent suicidal and homicidal ideations do not present an
imminent risk of harm to themselves or others.
Dr. Geffner, however, was not disciplined for conducting an
outpatient emergency evaluation: he was disciplined for not
obtaining father’s consent. Dr. Davidson’s opinion that
Dr. Geffner should not have conducted an outpatient emergency
evaluation and instead should have sent the children to an
emergency room fails to speak to the consent issue and thus was
not substantial evidence supporting the trial court’s conclusion
Dr. Geffner violated the Ethical Standards by failing to obtain
father’s consent to the emergency evaluation.
As to the issue for which Dr. Geffner was disciplined,
Dr. Roeder testified that typically it is appropriate to inform both
parents before conducting an evaluation, except in an emergency
situation, which exists where there is some kind of imminent risk
of self-harm or harm to others. He said this was an emergency
situation and that the emergency evaluation could be conducted
on an outpatient basis. Neither his testimony nor Dr. Davidson’s,
therefore, supported the trial court’s finding that no true
emergency existed. To the contrary, the experts agreed an
emergency existed; their disagreement was about how to handle
it.
25
Nor does the other evidence the trial court cited support its
finding that this was not an emergency. The trial court
suggested this was not an emergency because Dr. Geffner waited
three days to evaluate the children. That is, mother first
contacted Dr. Geffner on June 29, several weeks after mother
heard the children discussing suicide and homicide, and the
evaluation didn’t occur until July 2. However, when mother first
called Dr. Geffner on June 29, he advised her to call Williams.
When Williams was unavailable, the doctor referred mother to
two Bay Area psychologists. After mother reported back to
Dr. Geffner that they too were unavailable, he agreed on July 1
to evaluate the children. The evaluation occurred the next day,
on July 2. It is unclear why this was not an immediate
evaluation or how the evaluation’s timing shows that the
circumstances were not exigent.
The trial court also suggested that this was not an
immediate, “on the spot” assessment because Dr. Geffner wrote a
report and did not recommend hospitalization. Although the trial
court’s reasoning is unclear, it apparently thought that a “true
emergency” does not allow time to write a report and requires
hospitalization. This analysis suggests that Dr. Geffner should
have known before he conducted his assessment the facts he
learned as a result of conducting it. Dr. Geffner was presented
with facts suggesting the children might be at risk of self-harm.
He therefore evaluated them within 24 hours and determined
they were not at risk of imminent harm so long as they had no
contact with father. That he ultimately decided there was no
imminent risk requiring hospitalization if the children did not
have contact with father and wrote a report detailing his
26
reasoning is not evidence there were no grounds for an
emergency evaluation in the first instance.
Also, nothing in the record shows and no party suggests
that had Dr. Geffner believed on July 1 when he was engaged or
on July 2 when Dr. Ajami evaluated the children that they were
at imminent risk of self-harm that he would have nonetheless
tarried even a minute to write the report instead of immediately
telling mother, for example, to take the children to an
appropriate facility. In fact, Dr. Ajami testified that they
determined the children were safe until they could see her on
July 2, and “we don’t send somebody to the emergency room or
call the police if there’s just suicidal ideation. There has to be
imminent harm or imminent risk of harm” because “it’s actually
quite traumatic to send anybody, let alone children, to the
emergency room.” As to this, amicus aptly observes that mental
health emergencies may require “swift action,” even if the
situation does not call for “ ‘code blue’ ‘lights and sirens.’ An
individual may be in such suicidal psychic pain on Friday night
that it is not reasonable to wait until Monday, but the situation
may be dealt with over the course of hours or a day or two and
still be an emergency.”
Further, the trial court appeared to connect the fact that
the children made the troubling statements several weeks before
mother called Dr. Geffner with the absence of an emergency.
There is no basis for such a connection. It is undisputed that 12-
year old children involved in a tumultuous familial relationship
had said they wanted to kill themselves, one child wanted to kill
father, and these sentiments were connected to an upcoming visit
with father. No party or witness at any time has suggested these
statements were, for lack of better terms, not serious, farcical, or
27
unworthy of being treated with the utmost gravity. To the
contrary, the Board’s expert agreed that the children exhibited
risk factors.
Moreover, the record shows that the children continued to
make troubling statements shortly before and during the July 2
assessment. Dr. Geffner reported that Minor S. told mother the
night before the evaluation that he would rather kill himself than
visit father, and he was trying to figure out a way to do it. The
trial court discounted Dr. Roeder’s testimony that the children’s
suicidal talk was ongoing, finding the foundation for it “unclear.”
But the foundation for the testimony was clear: it was in
Dr. Geffner’s report. In fact, the Board on appeal acknowledges
the evidence, albeit relegating it to a footnote.
And although the record does not show Dr. Geffner knew
when mother first contacted him that the children had more
recently expressed suicidal thoughts and had acted on them, the
July 2 interviews with them buttressed his initial assessment
that this was an emergency. Minor S. told Dr. Ajami he thought
about killing himself every few weeks, had contemplated suicide
by stabbing himself or jumping off a cliff, had engaged in self-
harm one month earlier, and had taken a knife from a
restaurant, intending to stab himself after a visit with father.
Minor N. similarly told Dr. Ajami he had last thought of suicide
the night before, when his father was mentioned in conversation.
As Dr. Ajami testified, any inconsistency about when the children
last expressed suicidal thoughts—whether “yesterday” or a “few
days ago”—did not change the “risk level,” when there was
consistency across all other data points.
Nor does Dr. Geffner’s July 11 letter show that the
situation was not an emergency. The trial court found it notable
28
that Dr. Geffner advised in the letter that mother should take the
children to an emergency room if they made any further suicidal
statement. That recommendation does not undermine the
exigent nature of the children’s circumstances when mother
contacted Dr. Geffner.
Although we do not agree with the trial court’s conclusion
that no true emergency existed, we do agree with the trial court
that the family court order is largely irrelevant to that issue. The
order simply established that mother and father had joint legal
custody of the children, meaning they shared the right and
responsibility to make decisions about their children’s health,
education, and welfare. (Fam. Code, § 3003; see also id., § 3083
[“In making an order of joint legal custody, the court shall specify
the circumstances under which the consent of both parents is
required to be obtained in order to exercise legal control of the
child and the consequences of the failure to obtain mutual
consent. In all other circumstances, either parent acting alone
may exercise legal control of the child. An order of joint legal
custody shall not be construed to permit an action that is
inconsistent with the physical custody order unless the action is
expressly authorized by the court.”].) The order therefore
generally gave both parents the right to make medical decisions,
but it did not require Dr. Geffner to obtain father’s consent before
evaluating the children. As the trial court found, the family court
order did not require consent from both parents for “emergency
medical treatment.” It required a parent—not Dr. Geffner—to
notify the other parent as soon as reasonably possible that a child
had received emergency medical treatment. That happened here:
mother gave the report to father on July 5, the day after it was
prepared.
29
Finally, we agree with the trial court that neither it nor we
have occasion to address whether the children could themselves
consent to the evaluation. (See generally Fam. Code, § 6924,
subd. (b) [minor 12 years of age or older “may consent to mental
health treatment or counseling on an outpatient basis” if in a
professional person’s opinion the minor “is mature enough to
participate intelligently in” the services and would “present a
danger of serious physical or mental harm to self or to others
without the mental health treatment or counseling”]; Health &
Saf. Code, § 124260, subd. (b)(1) [minor 12 years of age or older
may consent to mental health treatment or counseling if a
professional person opines that minor is mature enough to
participate intelligently]; see Fam. Code, § 6922 [citing
circumstances minors 15 years of age or older may consent to
medical care].) A petitioner in mandate must exhaust remedies
and issues at every level of the administrative process, and
failing to do so precludes petitioner from raising those issues
during judicial review. (Danser v. Public Employees’ Retirement
System (2015) 240 Cal.App.4th 885, 891; California Water Impact
Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th
1464, 1489.) Dr. Geffner did not raise the issue before the Board,
and it was not developed either legally or factually.11
IV. Failure to consult the children’s therapist
The Board and trial court found that Dr. Geffner violated
Ethical Standard 3.09 by failing to contact Williams, the
11
Dr. Geffner’s report did state that the “nature and purpose
of the evaluation was explained to both [Minor N.] and [Minor S.]
individually and assent was obtained.”
30
children’s therapist before seeing the children. We disagree that
there is sufficient evidence he violated that Ethical Standard.
Ethical Standard 3.09 provides: “When indicated and
professionally appropriate, psychologists cooperate with other
professionals in order to serve their clients/patients effectively
and appropriately.” (Italics added.) Further the Introduction to
the Ethical Standards note they are “written broadly,” and the
application of any Ethical Standard “may vary depending on the
context.” Also, the “modifiers used in some of the standards of
this Ethics Code (e.g., reasonably, appropriate, potentially) are
included in the standards when they would (1) allow professional
judgment on the part of psychologists.” (Italics added.)
The proper construction of the Ethical Standard is an issue
of law that we resolve de novo, applying the rules of statutory
interpretation. (See O’Brien v. Regents of University of California
(2023) 92 Cal.App.5th 1099, 1117 [applying general rules of
statutory interpretation to university’s Faculty Code of
Conduct].) We therefore give the Ethical Standard its plain,
commonsense meaning, reading it as a whole. (Ibid.) When
language is clear and unambiguous and not reasonably
susceptible to more than one meaning, there is no need for
further construction. (People v. Camarillo (2000) 84 Cal.App.4th
1386, 1391.)
The plain, commonsense interpretation of Ethical Standard
3.09’s opening clause—“[w]hen indicated and professionally
appropriate”—implicates some level of discretion. The
Introduction to the Ethical Standards as a whole confirms this
interpretation, because it provides that the word “appropriate”
refers to a psychologist’s ability to exercise professional
judgment. Thus, psychologists have discretion whether to
31
cooperate or to consult with other professionals based on whether
such consultation is indicated and professionally appropriate.
Dr. Roeder accordingly testified that generally the best practice is
to consult treating physicians, but here the children’s existing
treater was unavailable. Dr. Geffner similarly explained that
after mother told him the children’s therapist was unavailable,
he did not try to contact her personally because, unlike in a
forensic evaluation, his focus was on the emergency and whether
the children posed a serious risk to themselves. Also, mother had
told him the therapist was unavailable and there was no one else
who could see the children.
In contrast, the Board’s expert testified that a treating
doctor should be consulted in all circumstances, including
emergency ones, “[a]t the outset.”12 She therefore essentially said
that such consultation is always indicated and professionally
appropriate. In her view, Ethical Standard 3.09 affords
psychologists no discretion. But this view is contrary to the
opening clause in Ethical Standard 3.09 and the Introduction to
the Ethical Standards as a whole, which neither the Board’s
expert nor the trial court directly addressed. Stated otherwise,
Ethical Standard 3.09 is not reasonably susceptible to
Dr. Davidson’s interpretation of it. Given that Ethical Standard
3.09 does not require psychologists to consult treating doctors in
all situations and that Dr. Davidson said, to the contrary, that
such consultation is always required, there is insufficient
12
Dr. Davidson also testified that there was an initial
problem here because Dr. Geffner had to obtain father’s
permission to contact the treating team. We have already
rejected that father’s consent was required.
32
evidence to support the trial court’s conclusion that Dr. Geffner
violated the Ethical Standard.
V. Failure to limit report to emergency risk assessment
The experts agreed that a risk assessment should be
limited to identifying any imminent risk of harm and immediate
intervention and should not make long-term custody
recommendations. The trial court interpreted Dr. Geffner’s
report as going beyond recommending what was immediately
necessary to treat the children’s suicidal and homicidal ideations
by including custody recommendations, which violated the
standard of care.
The trial court focused on Dr. Geffner’s recommendation
that the children cease contact with father until they received
more extensive treatment for their symptoms and their risk for
self-harm and harm to others was eliminated. Adopting the
testimony of Dr. Davidson, the trial court described the no-
contact recommendation as practically a “general and long-term
recommendation for complete physical custody with Mother
pending some further event; it addresses Father’s access to
children. [Citation.] A recommendation of no contact with
Father is not merely about immediate risk and immediate need.
[Citation.] [Dr. Geffner’s] recommendation through an
emergency assessment that addressed more than the need to
cancel Father’s next visit because of risk to the Boys breached the
standard of care and the departure was extreme.”
To be sure, Dr. Geffner’s recommendation the children have
no contact with father until their suicidal and homicidal ideations
were eliminated (because father triggered those feelings)
implicated whether they should see father in the immediate and
perhaps longer term. But that does not make it a custodial
33
recommendation, i.e., a recommendation mother should be
granted sole legal and/or physical custody.13 Dr. Geffner was
evaluating whether the children were at imminent risk of self-
harm or of harming others. He found that seeing father made the
children want to kill themselves or father. How was Dr. Geffner
supposed to phrase his medical opinion that seeing father
triggered the children’s suicidal and homicidal ideations—that is,
placed them at risk of harm—without raising the inference or
implication they should not see father until those ideations could
be resolved? Was he supposed to simply state, “Seeing father
triggers the children’s suicidal and homicidal ideation?” If so,
how does that simple statement also not implicate or suggest
they should not have contact with father? In short, “no contact
with father” is substantively no different than saying there is an
imminent risk the children will harm themselves if they have to
see father.
We therefore conclude that there is insufficient evidence to
support the trial court’s finding that Dr. Geffner made custody
recommendations.14
VI. Failure to warn father of Minor N.’s homicidal ideation
Dr. Geffner contends he did not violate any Ethical
Standard by delegating a duty to warn father that Minor N. had
considered killing him. We agree.
13
Mother gave the report to the family court, which excluded
it.
14
We need not address Dr. Geffner’s other recommendations
because neither the Board nor the trial court found that they
violated the standard of care governing what may be in an
emergency risk assessment.
34
Here, the trial court found that Dr. Geffner breached a duty
under Ethical Standard 3.04 to warn father by delegating the
duty to mother. As an initial matter, Dr. Geffner did not delegate
any duty to mother. Instead, he stated in the report, “As
psychologists, we also have a duty to warn if potential harm may
occur to others. Therefore, we will need to be assured within 24
hours that [father] has been made aware of his son’s feelings and
statements with respect to possible harm to him. Otherwise, we
will need to report it. In addition, based upon this evaluation, it
does not appear that either boy is at risk for suicidal potential or
harm to others if they can be reassured that there will not be
contact with their father, as this appears to be the strongest risk
factor at this time.” (Italics added.) As the italicized language
shows, Dr. Geffner did not dictate that mother tell father, he just
said father had to be told.
In any event, having independently reviewed Ethical
Standard No. 3.04, we cannot conclude it required Dr. Geffner to
warn father of his son’s threat. Subdivision (a) of that standard
directs psychologists to (1) “take reasonable steps to avoid
harming” patients, and (2) “to minimize harm where it is
foreseeable and unavoidable.”15 The first clause thus prohibits
psychologists from inflicting harm themselves, but it does not
directly concern a duty to warn others of potential harm. The
second clause arguably includes a duty to warn third parties of
threatened harm by a patient, but only if such harm is
“foreseeable” and “unavoidable.”
15
Subdivision (b) forbids psychologists from harming others
by engaging in torture, thereby underscoring that the focus of the
Ethical Standard is on psychologists themselves not inflicting
harm.
35
The evidence before the trial court does not demonstrate
that harm to father was either foreseeable or unavoidable. The
undisputed evidence was that 12-year-old Minor N. thought
about hiring a hitman, apparently from Los Angeles or Florida,
but he abandoned his plan on realizing it was too flawed. Minor
N. denied having any current plan or intent to kill father.
Drs. Roeder, Ajami, and Geffner agreed that harm to father was
unrealistic. Dr. Davidson offered no opinion on the foreseeability
or realistic nature of potential harm to father, and she never
disagreed that there was no imminent risk that one of the boys
would harm father so long as the children had no contact with
him. Dr. Davidson instead took the position that the Ethical
Standard requires a psychologist to warn an individual of threats
against them regardless of the foreseeability of harm. That
position ignores and writes the words “foreseeable” and
“unavoidable” out of the Ethical Standard, and thus is
inconsistent with its plain language.
Thus, while we in no way discount the seriousness of Minor
N.’s feelings about father, there is no showing he had a realistic
ability to act on them or, more important, that he planned to act
on them such that there was a foreseeable, unavoidable risk of
harm. He denied such a plan, and Drs. Ajami, Geffner, and
Roeder agreed there was no risk if Minor N. did not have contact
with father. There was no evidence to the contrary. Thus, the
evidence did not support the trial court’s conclusion that Dr.
Geffner violated Ethical Standard 3.04.
For the same reason, we find no violation of any duty to
warn as articulated by our Supreme Court in Tarasoff v. Regents
of University of California (1976) 17 Cal.3d 425, 431. Tarasoff
broadly held that once a therapist determines or reasonably
36
should have determined that a patient poses a serious danger of
violence to others, the therapist has a duty to exercise reasonable
care to protect the foreseeable victim.16 But as we have said,
there was no evidence that either child posed a serious danger of
violence to father, and thus there was no duty to warn under
Tarasoff.
Otherwise, the trial court did not address foreseeability of
harm to father or evaluate it in the context of the Ethical
Standards. Instead, the trial court found that because
Dr. Geffner required father be told about Minor N.’s suicidal and
homicidal ideations, there necessarily was a duty to warn; that is,
the warning established the duty. The trial court also found
irreconcilable Dr. Geffner’s directive that father be told of the
children’s “feelings and statements with respect to possible harm”
with Dr. Roeder’s testimony that any risk to father was
unrealistic. But the two are not irreconcilable: even if the
children could not realistically hire a hitman to kill their father,
16
After the Tarasoff decision, the Legislature enacted
Civil Code section 43.92, which provides that a psychotherapist is
not liable for failing to protect against a patient’s violent behavior
unless the patient has told the therapist about a serious threat of
violence against a reasonably identifiable victim. Civil Code
section 43.92 was intended to limit Tarasoff and to strike “a
reasonable balance in that it does not compel the therapist to
predict the dangerousness of a patient. Instead, it requires the
therapist to attempt to protect a victim under limited
circumstances, even though the therapist’s disclosure of a patient
confidence will potentially disrupt or destroy the patient’s trust
in the therapist.” (Ewing v. Goldstein (2004) 120 Cal.App.4th
807, 817.) Civil Code section 43.92 governs civil liability, and
thus it is not relevant to our analysis.
37
it was still critically important that he, as a parent with joint
legal custody and visitation rights, be told that seeing him caused
the children to have harmful thoughts. This is what the final
sentence in Dr. Geffner’s recommendation is about: harm was
not foreseeable or unavoidable if the children did not have
contact with father.
We therefore conclude that while Dr. Geffner generally had
a duty to warn others of foreseeable and unavoidable harm, he
did not violate any duty owed to father.
DISPOSITION
The judgment is reversed with the direction to the trial
court to grant the petition for a writ of administrative mandamus
and to reverse the Board’s findings. Dr. Geffner may recover his
costs on appeal.
CERTIFIED FOR PUBLICATION
EDMON, P. J.
We concur:
EGERTON, J.
ADAMS, J.
38