Metropolitan News-Enterprise


Thursday, September 27, 2012


Page 1


Appeals Panel Holds That Licensee May Be Ordered to Take Mental Competency Exam as Part of Investigation


By a MetNews Staff Writer


The First District Court of Appeal held yesterday that a professional licensing and disciplinary body has the authority to order a licensee to undergo a psychological or psychiatric examination when the person’s mental competence is being investigated.

The opinion was written for Div. Two by Justice James A. Richman. The case is Lee v. Board of Registered Nursing, A132197.

The opinion upholds a trial court decision denying a writ of administrative mandamus to Ophelia Lee, who contested a decision to fire her after she refused to be examined by a psychiatrist or psychologist.

Five doctors had previously examined her, two finding that she was delusional and unfit to work in a surgical unit.

Richman said that most disciplinary actions “will have the substantive component that the licensing agency has determined, following examination of the licentiate, that the licentiate’s ability to practice his or her profession actually has become impaired because of mental or physical illness” and impairment is found.

“Yet what if no definitive answer is available because the examination is never held due to the licentiate’s refusal to be examined?” he asked.

Providing the answer, the jurist wrote:

“The Board’s order for the examination was merely part of the investigative phase.  The examination order itself did not deprive Lee of any state or federal due process interest because there was no impairment of her right to practice her profession, which could only happen with a successful accusation leading to the Board imposing discipline….Nor were Lee’s privacy rights infringed…insofar as matters had not proceeded beyond the procedural….

“All that is relevant is that Lee did not comply with the Board’s order to submit to a mental examination.”

The legitimacy of the order cannot be doubted, Richman said, in light of the legislative mandate to board to protect the public.


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