The Delaware Supreme Court affirmed the license revocation of a professional mental health counselor by the Delaware Board of Mental Health and Chemical Dependency Professionals Board.

Two incidents were involved

On December 18, 2000, when A.P. missed one of her appointments, Appellant called A.P. late at night. He told her that her body was beautiful and that he was thinking about her body while watching a pornographic film. He told her that he wanted to “eat” her body. A.P. made contemporaneous notes of this call.

Two days after the incident, A.P. reported Appellant’s conduct to the police. In January 2001, Appellant was arrested and, in March 2001, entered a plea of no contest to criminal harassment. He was placed on probation before judgment.

The March 2017 incident involved a different patient, D.S., age 70, who had a complicated medical history. D.S. had a caretaker, D.P (a woman in her thirties), who would drive D.S. to her appointments with Appellant.

At her first session with Appellant, D.S. signed a form directing that her confidential information could only be released to her husband and two of her  physicians. D.P. was not included on the form and D.S. did not give consent for of confidential information to D.P.

Nevertheless, Appellant sent D.P. a text message that contained confidential information about the treatment and diagnosis of D.S. Additionally, Appellant’s ensuing text message exchange with D.P. included personal comments to D.P. Appellant texted D.P. that she (D.P.) needs to “let go and be a woman”, she needs “companionship”, and he (Appellant) knows “what alone is like.” Appellant also wrote that D.P. should come to his office to talk “privately”. The text message exchange made D.P. uncomfortable and was inappropriate.

D.S. subsequently saw the text message exchange, discussed it with her psychiatrist, and her psychiatrist instructed her to report Appellant’s conduct to the Board.

The hearing officer’s proposed lesser sanction was rejected by the board, which unanimously imposed license revocation

Concerning the decision to revoke Appellant’s license instead of the recommended license suspension and probation, the Board considered Appellant’s disciplinary history since 2010 which consisted of probations and a previous suspension. The Board relied on the following facts: In 2010, Appellant was disciplined by the Board for revealing confidential information about a patient to her spouse (after the patient accused him of unprofessional conduct during a session) and he was placed on probation; while on this probation, there was a 2011 matter involving an inappropriate romantic relationship with a female patient; and also Appellant’s conduct to the while on probation, Appellant pled guilty, after arrest, to being inappropriately attired on a Delaware beach. Additionally, Appellant’s license had been suspended from August 2011 to October 2012.

The Board found that Appellant’s long-standing pattern of unethical behavior and conduct was “clearly outside of the bounds of appropriate counselor behavior.” As such, the Board determined that the Hearing Officer’s recommended discipline (another suspension and more probation) was insufficient and the Board unanimously voted to revoke Appellant’s license. Based on these facts, the Court finds that there is substantial evidence to conclude that Appellant violated the Ethics Code Directives and that license revocation was appropriate.

The court found no due process violation and no precedent to apply a laches defense to the earlier incident. . (Mike Frisch)