Geffner v. Bd. of Psychol.

318 Cal.Rptr.3d 761

Robert GEFFNER, Plaintiff and Appellant,

v.BOARD OF PSYCHOLOGY, Defendant and Respondent.

B322991

Court of Appeal, Second District, Division 3.

Filed February 28, 2024

APPEAL from a judgment of the Superior Court of Los Angeles County, Mitchell L. Beckloff, Judge. Reversed with directions. (Los Angeles County Super. Ct. No. 22STCP00012)

Klinedinst, Earll M. Pott and Robert M. Shaughnessy, San Diego, 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, Irvine, for Amicus Curiae on behalf of Plaintiff and Appellant.

EDMON, P. J.

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.

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 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 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 traumat- ic events. Both children’s scores on the depression scale suggested "possible sub-clinical (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 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 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 first asked whether a meeting between father and the children fell within Dr. Geffner’s no-contact recommendation. In response,...