CALIFORNIA ASSOCIATION OF PSYCHOLOGY PROVIDERS v. CALIFORNIA HOSPITAL ASSOCIATION (1988)

 California Hospital Association, California Medical Association, California Psychiatric Association, Barton J. Blinder, M.D., William H. Boyd, M.D., Thomas K. Ciesla, M.D., Edward H. Liston, M.D., and Charles W. Portney, M.D., (“movants”) appeal ¹ from:

(1) the summary judgment ² dated January 17, 1986, in favor of plaintiffs the California Association of Psychology Providers, Stuart Wilson, Ph.D., Stephen Edward Berger, Ph.D., Lawrence N. Blum, Ph.D., Gary E. Bodner, Ph.D., Corey Douglas Fox, Ph.D., A. Steven Frankel, Ph.D., Lisa Pomeroy, Ph.D., Carlton W. Purviance, Ph.D. (“the plaintiffs”), and against defendants Peter Rank, Director of the California Department of Health Services, the Department of Health Services (“DHS”), Jesse Huff, Acting Director of the California Department of Finance, and the Department of Finance (“the defendants”);  and

(2) an order dated April 11, 1986, in favor of plaintiffs and against movants.

QUESTION PRESENTED

Does Health and Safety Code section 1316.5 ³ (“section 1316.5”) compel health facilities to allow their appointed clinical psychologists to render services without physician supervision?

FACTUAL AND PROCEDURAL STATEMENT

On June 20, 1984, plaintiffs filed a “Complaint For Writ Of Mandate, Injunctive Relief, And Declaratory Relief” pleading seven causes of action.

On August 16, 1984, the defendants answered the petition and complaint by denying the material allegations.

On May 28, 1985, plaintiffs moved for summary judgment on the seventh cause of action, which sought a declaration that the regulations embodied in Title 22, California Administrative Code (“CAC”), sections 70577, subdivision (d)(1) and 71203, subdivision (a)(1)(A) (“sections 70577(d)(1) and 71203(a)(1)(A)”) were contrary to law.   They challenged those regulations, which required a psychiatrist to be responsible for the diagnosis and treatment of all patients, on the ground such requirement unlawfully discriminated against clinical psychologists in violation of section 1316.5, which empowers a clinical psychologist to provide psychological services within the scope of their licensure without discrimination.

On July 1, 1985, defendants filed opposition papers controverting plaintiffs' claims.   Plaintiffs filed rebuttal papers on July 25, 1985.

Following a hearing on July 30, 1985, the court granted plaintiffs' motion for summary judgment on the seventh cause of action.

In the summary judgment filed January 17, 1986, the court declared:  The provision of psychological services by a psychologist referred to in section 1316.5 “includes ultimate responsibility for the psychological care of hospitalized patients and authority to admit and discharge patients provided that a physician shall be responsible for the necessary medical care of patients including completion of a physical examination upon admission of each patient.”

The court further declared that sections 70577(d)(1) and 71203(a)(1)(A), as written and in effect on July 30, 1985,⁴ were invalid, as conflicting with section 1316.5, for the reasons that those regulations prohibited psychologists from independently (1) admitting patients to health facilities and (2) diagnosing and treating patients within the scope of psychology licensure.

The court ordered DHS to amend sections 70577(d)(1) and 71203(a)(1)(A) to provide:  “Psychiatrists or clinical psychologists within the scope of their licensure and subject to the rules of the facility shall be responsible for the diagnostic formulation for their patients and the development and implementation of each patient's treatment plan.” ⁵

On March 21, 1986, the movants, as aggrieved parties, filed a motion to set aside and vacate the judgment filed on January 17, 1986, and to enter another and different judgment, i.e., that sections 70577(d)(1) and 71203(a)(1)(A), as written and in effect on July 30, 1985, were valid and did not conflict with section 1316.5.

In their opposition papers, filed on April 7, 1986, plaintiffs took the dual position that movants lacked standing to bring the motion and had failed to show that an incorrect or erroneous legal basis for the court's decision existed.

In their reply filed April 9, 1986, the movants again asserted that they had standing to challenge the judgment.

On April 11, 1986, after a hearing, the motion to vacate and set aside the judgment and enter another and different judgment was denied on the ground that the movants were without standing.

DISCUSSION

I. Does Section 1316.5 Compel Health Facilities To Allow Their Clinical Psychologists To Render Services Without Physician Supervision?

Movants argue that nothing in section 1316.5 requires a health facility, specifically, a general acute care hospital or an acute psychiatric hospital,⁶ to allow clinical psychologists to admit patients or to diagnose and treat patients without the supervision of a physician.   They further urge that the trial court erred in construing section 1316.5 to mandate that requirement.

From our review of the applicable law and legislative history of section 1316.5, we conclude that movants are partially correct.   The thrust of section 1316.5 is to ensure to clinical psychologists having patients in health facilities the right to practice their profession without discrimination.   On the other hand, section 1316.5 does not authorize clinical psychologists to perform health services which are beyond “the scope of their licensure”.

Pursuant to section 1316.5 clinical psychologists ⁷ are authorized to “hold membership and serve on committees of the medical staff and carry professional responsibilities consistent with the scope of their licensure and their competence, subject to the rules of the health facilities.”   The key phrase is “consistent with the scope of their licensure”.  Section 1316.5 further provides:  “If a health service is offered by a health facility with both licensed physicians and surgeons [“physicians”] and clinical psychologists on the medical staff, which both licensed physicians ․ and clinical psychologists are authorized by law to perform, such service may be performed by either, without discrimination.”   The key phrase here is “which [service] both ․ are authorized by law to perform.”

In order to determine the parameters of section 1316.5 we ascertain the meaning of those phrases.   To accomplish this we must first define certain operative words, i.e., “psychologist”, “psychology”, “psychiatrist”, “psychiatry”, “diagnose” and “diagnosis”.

A “psychologist”, which term includes a “clinical psychologist”, is an individual who holds a license to practice psychology pursuant to the “Psychology Licensing Law” (Bus. & Prof.Code, § 2900 et seq.).⁸

“The practice of psychology is defined as rendering or offering to render ․ any psychological service involving the application of psychological principles, methods, and procedures of understanding, predicting, and influencing behavior, such as the principles pertaining to learning, perception, motivation, emotions, and interpersonal relationships;  and the methods and procedures of interviewing, counseling, psychotherapy, behavior modification, and hypnosis;  and of constructing, administering, and interpreting tests of mental abilities, aptitudes, interests, attitudes, personality characteristics, emotions, and motivations.  [¶] The application of such principles and methods includes, but is not restricted to:  diagnosis, prevention, treatment, and amelioration of psychological problems and emotional and mental disorders of individuals and groups.  [¶] Psychotherapy ․ means the use of psychological methods in a professional relationship to assist a person or persons to acquire greater human effectiveness or to modify feelings, conditions, attitudes and behavior which are emotionally, intellectually, or socially ineffectual or maladjustive.”  (§ 2903.)

The above definition of the practice of psychology controls despite any existing statute to the contrary.  (§ 2905.)

On the other hand, “[t]he practice of psychology shall not include prescribing drugs, performing surgery or administering electro-convulsive therapy.”  (§ 2904.)

Psychologists must be distinguished from psychiatrists.  (See California State Psychological Assn. v. County of San Diego (1983) 148 Cal.App.3d 849, 853, 198 Cal.Rptr. 1.)   A “psychiatrist” is “[a] physician especially learned in psychiatry”.  (3 Schmidt, Attorney's Dictionary of Medicine and Word Finder (1988) p. P–361;  see also, 22 CAC, § 71053, subd. (16).)  “Psychiatry” is “[t]he branch of medicine dealing with disorders of the mind, emotions, and mental life, including conscious, subconscious, and unconscious manifestations.”  (3 Schmidt, Attorney's Dictionary of Medicine and Word Finder (1988) p. P–361.)   Unlike psychologists, psychiatrists are authorized “to use drugs or devices in or upon human beings and to sever or penetrate the tissues of human beings and to use any and all methods in the treatment of diseases, injuries, deformities, and other physical and mental conditions.”  (§ 2051.)

Although section 2903 authorizes a psychologist to diagnose psychological problems and emotional and mental disorders, the words “diagnose” and “diagnosis” are not statutorily defined in that context.   With regard to physicians, however, section 2038 defines the words “diagnose” and “diagnosis” to “include any undertaking by any method, device, or procedure whatsoever, ․ to ascertain or establish whether a person is suffering from any physical or mental disorder․”

 Given the broader scope of authority accorded physicians, we conclude that the above definition cannot be applied to a psychologist.   We hold, instead, that the words “diagnose” and “diagnosis” when referring to a psychologist mean any undertaking to ascertain or establish whether a person is suffering from a mental disorder discoverable by any method or procedure consistent with a psychologist's licensure.

 From the above it is clear that while a physician's function may encompass the practice of psychology (see § 2908), the converse is not true, i.e., a psychologist may not practice medicine.   It is this distinction and difference which lies at the heart of the issue.

Only a physician is authorized to render a diagnosis concerning a mental disorder organic in origin or nature.   Similarly, to the extent that a mental disorder is susceptible to treatment by drugs, surgery, or electro-convulsive therapy only a physician is authorized to create and implement such a treatment plan therefor.   Psychologists cannot make a medical diagnosis or devise and implement a treatment plan utilizing such means since those matters are not “consistent with the scope of their licensure”.   A gap in patient care arises if a physician does not have the initial and ultimate responsibility for a patient suffering from a mental disorder under those circumstances.   If the psychologist were accorded unfettered discretion to admit his or her patient to the health facility and to implement a nonmedical treatment based on a nonmedical diagnosis without the supervision of a physician, then the patient's health may be at risk.   Such was not the Legislature's intent.

 We further hold the Legislature intended to require health facilities to allow their appointed clinical psychologists the right to diagnose and treat their patients without interference or hindrance from a physician only in those instances where a physician has initially ruled out a medical basis for the patient's mental disorder and determined that it is not subject to medical treatment, and where the patient's mental disorder does not subsequently become susceptible to medical treatment after admission to the health facility.   Under such circumstances the functions of the psychologist and physician become coextensive in that either would be authorized to practice psychology.   In the words of section 1316.5 this would be a service “which both [physicians] and clinical psychologists are authorized by law to perform, [which] service may be performed by either without discrimination.”   On the other hand, to require the patient to be diagnosed and treated by a psychiatrist, or the psychologist to be supervised by a psychiatrist, after a medical diagnosis and medical treatment have been ruled out, would constitute the discrimination against the psychologist as proscribed by the Legislature.

II. Order Denying Motion to Vacate the Judgment

The record reveals that the court denied the motion solely on the ground that movants lacked standing.   That issue, however, has been determined in the latter's favor by our Supreme Court.   Accordingly, the order must be reversed for that reason.   Although the trial court did not pass on the merits of the motion, we conclude that a remand for it to do so would be counterproductive in view of our Supreme Court's directive.

Based on our above analysis on the merits of movants' position we remand this cause with directions to the trial court to reverse the summary judgment and enter a new judgment embodying the views set forth in this opinion.

This disposition obviates the need to address movants' contentions concerning the judgment itself.

DISPOSITION

The summary judgment and order appealed from are reversed.

The cause is remanded with directions to vacate the judgment and to enter a new judgment consistent with the views expressed in this opinion.   Each party to bear its own costs on appeal.

FOOTNOTES

1.   On July 1, 1986, we dismissed the appeal on the ground movants, who were not parties, lacked standing to challenge the judgment.   We reinstated the appeal pursuant to our Supreme Court's order dated October 16, 1986.

2.   On August 18, 1987, we again dismissed movants' appeal.   We first found that the “Order by Court under CCP § 437c” filed January 17 was an interlocutory partial summary judgment order, which is nonappealable, since it was directed solely to the seventh cause of action and six causes of action remained outstanding against defendants.   (Trani v. R.G. Hohman Enterprises, Inc. (1975) 52 Cal.App.3d 314, 315–316, 125 Cal.Rptr. 34;  accord, Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 557, fn. 1, 145 Cal.Rptr. 657.)Movants urged that we construe the January 17 order to be a final judgment based on their claim that the court had in effect disposed of all issues remaining to be adjudicated.   We declined.   The order on its face stated that the court disposed of only the seventh cause of action.   An appeal may not be taken from an order which disposes of less than all the causes of action between the parties.  (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 806, 94 Cal.Rptr. 796, 484 P.2d 964;  and see e.g., DeGrandchamp v. Texaco, Inc. (1979) 100 Cal.App.3d 424, 432–433, 160 Cal.Rptr. 899;  cf. Tenhet v. Boswell (1976) 18 Cal.3d 150, 155, 133 Cal.Rptr. 10, 554 P.2d 330;  Osmond v. EWAP, Inc. (1984) 153 Cal.App.3d 842, 846, fn. 1, 200 Cal.Rptr. 674.)We also found the April 11 order to be an interlocutory order.   We reasoned that since there was no final judgment the April 11 order denying the motion to set aside and vacate the judgment was not appealable as an order made after judgment.  (See Code Civ.Proc., § 904.1, subds. (a), (b).)On November 25, 1987 our Supreme Court granted movants' petition for review and transferred the matter to us with directions to vacate the dismissal of the above orders and to reinstate and hear the appeal on the merits, which we now do.

3.   Subdivision (a) of section 1316.5 provides in pertinent part:“The rules of a health facility may enable the appointment of clinical psychologists on such terms and conditions as the facility shall establish.   In such health facilities, clinical psychologists may hold membership and serve on committees of the medical staff and carry professional responsibilities consistent with the scope of their licensure and their competence, subject to the rules of the health facility.“Nothing in this section shall be construed to require a health facility to offer a specific health service or services not otherwise offered.   If a health service is offered by a health facility with both licensed physicians and surgeons and clinical psychologists on the medical staff, which both licensed physicians and surgeons and clinical psychologists are authorized by law to perform, such service may be performed by either, without discrimination․”

4.   Both of those administrative regulations provided:  “A psychiatrist shall be responsible for the diagnostic formulation for each patient and the development and implementation of the individual patient's treatment plan.”   Section 70577(d)(1) applied to general acute care hospitals while section 71203(a)(1)(A) applied to acute psychiatric hospitals.  (See 22 CAC, §§ 70005, 71005.)

5.   The court declared the term “subject to the rules of the facility” to mean the facility could formulate its own rules and regulations so long as they were consistent with the court's order and with California law.   DHS has amended those sections as ordered.

6.   A “ ‘health facility’ means any facility, place, or building which is organized, maintained, and operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, ․ or for any one or more of these purposes, for one or more persons, to which the persons are admitted for a 24–hour stay or longer, and includes the following types:  [¶] (a) ‘General acute care hospital’ means a health facility having a duly constituted governing body with overall administrative and professional responsibility and an organized medical staff which provides 24–hour inpatient care, including the following basic services:  medical, nursing, surgical, anesthesia, laboratory, radiology, pharmacy, and dietary services․  (b) ‘Acute psychiatric hospital’ means a health facility having a duly constituted governing body with overall administrative and professional responsibility and an organized medical staff which provides 24–hour inpatient care for mentally disordered, incompetent, or other patients referred to in Division 5 (commencing with Section 5000) or Division 6 (commencing with Section 6000) of the Welfare and Institutions Code, including the following basic services:  medical, nursing, rehabilitative, pharmacy, and dietary services․”  (Health & Saf.Code, § 1250.)

7.   “ ‘Clinical psychologist,’ as used in this section, means a psychologist licensed by this state and (1) who possesses an earned doctorate degree in psychology from an educational institution meeting the criteria of subdivision (c) of Section 2914 of the Business and Professions Code and (2) has not less than two years clinical experience in a multidisciplinary facility licensed or operated by this or another state or by the United States to provide health care, or, is listed in the latest edition of the National Register of Health Service Providers in Psychology, as adopted by the Council for the National Register of Health Service Providers in Psychology.”  (§ 1316.5, subd. (c).)

8.   All further statutory references, unless already designated, are to the Business and Professions Code.

DANIELSON, Associate Justice.

KLEIN, P.J., and ARABIAN, J., concur.