The Dr. Phil Defense: If It Was Friendly, It Was Not Felonious

Today, Dr. Phil (as expected) redefined his role in the Britany Spears controversy, insisting that he visited the pop star as a pop friend, not a pop psychologist. It is a critical distinction that could determine whether Dr. Phil McGraw is charged with a felony.

McGraw’s comments came as part of his Monday show. He admitted that his public comments about Spears were a mistake: “Was it helpful to the situation? Regrettably, no, . . . I definitely think if I had it to do over again, I probably wouldn’t make any statement at all. Period.” Yet, he insisted that he acted as a friend and not a psychologist. For those statements, click here He specifically refused to apologize for trying to “help a family.”

I was interviewed for the Today Show about the legal charges here. It comes down to motive. Obviously, he can visit friends in a hospital. Using his training and skills, however, “to help this family” would likely cross the line. McGraw has long maintained this faux therapy line on his show that becomes much more serious when it carries over to an actual hospital.

The controversy was triggered by a complaint has been filed that McGraw’s rush to interject himself into the Britney Spears controversy constitutes practicing without a license. The complaint against Dr. McGraw was filed with the California Board of Psychology. It is a felony to practicing without a license in California. McGraw previously gave up his license in 2006. Notably, when they go on his show, participants sign a contract that includes a provision that he is not medically treating them. Notably, when his show began in 2002, the Board investigated whether he was practicing without a license. In what would be an insult to most true doctors, the Board found that Dr. Phil was not in violation because he was acting as an entertainer, not as a psychiatrist.

The problem of Dr. Phil began when he showed up at the Cedars-Sinai Medical Center in Los Angeles after Spears was involuntarily admitted. He was reportedly asked to visit her by her visit on a confidential basis. This visit is viewed in the complaint as practicing clinical psychology as well as violating the Health Insurance Portability and Accountability Act. Among other things, he is accused to shattering her professional confidentiality and relationship with her treating psychiatrist.

His greatest defense is found in Section 2903 of the California Business and Professions Code, which defines “The practice of psychology is defined as rendering or offering to render for a fee … any psychological service involving the application of psychological principles, methods and procedures … [such as] the methods and procedures of interviewing, counseling, psychotherapy, behavior modification and hypnosis.” He clearly was not acting for a fee. Yet, his best defense may be his old defense: he is really not engaging in real psychology.

Spears family was publicly outraged by Dr. Phil’s disclosure of the visit to the media and violating their trust. Of course, next time they may want to hire a real psychiatrist instead of trying to have their Pop star treated by a Pop psychologist. Notably, Dr. Phil’s controversial public discussion of his visit and dire predictions of Spears’ demise could be cited (and perhaps was intended) as evidence that he was acting as an entertainer rather than a clinical psychiatrist.

This is not the first time that Dr. Phil has been in trouble on ethics.

McGraw gave up his license in Texas before he completed disciplined measure meted out by the Texas State Board of Examiners of Psychologists in 1989. He was accused by a former therapy client of having an improper relationship with her. McGraw gave her a job but denied improper physical contact. He was nevertheless found guilty of violating professional rules and officially reprimanded. He then closed his practice completing the specific punishments.

It is difficult to get the full story on this earlier allegation. The Texas Board record for a Phillip C. McGraw states here that there was a charge of a “dual relationship/violation of code of ethics” for a Phillip C. McGraw. It states the punishment as “Supervised Practice (1 yr); 01/27/89, Violation of Code of Ethics Satisfactory Completion of Professional Ethics Course and Board’s, Board’s Jurisprudence Exam; Physical and Psychological Evaluations.”

The act of visiting a hospital is clearly different from the show itself since it was not filmed or done for public consumption. For McGraw, however, he might have to admit that he did not care a wink about Spears and was doing this (despite the understanding of the family) solely for ratings. Notably, unless there are criminal charges, it is unclear that the Board has any jurisdiction to punish McGraw even if he were found in violation.

Ironically, if he caused harm to Spears, he could be sued in tort. Under the common law standard, even if you are not a doctor, you are held to the same professional standard if you hold yourself out as a doctor. Obviously, McGraw is a trained but not licensed doctor. Once again, his saving grace is that Spears was already a car wreck and he merely came to gawk.

The law must also deal with our own faux judges, who seek to turn legal process into a form of sensation entertainment. Indeed, as noted in this column, these TV judges seem to have had an impact on real judges.Due to the fuzzy question of motive, McGraw probably has an advantage in the matter. It could come down to his specific conduct with Spears. It is difficult to make out a practice violation on a single visit unless there is evidence of substantive clinical work. This hardly excuses McGraw on a professional basis. However, the state board can do little beyond investigate and possibly issue a reprimand.

The case is perfectly bizarre as a pop star goes to a pop psychologist for help. I only hope that Dr. Phil will now retain Judge Judge to add a pop lawyer into the mix.

10 thoughts on “The Dr. Phil Defense: If It Was Friendly, It Was Not Felonious”

  1. Forgive me, for some reason, you can’t past more than one link at a time to this site…

    For your perusal. If you have never heard of or seen Dr. Doug Farrago, the written publication, Placebo Journal, is a hoot. And you can hold it in your hands – in bed, if you want!

    Laughter really is, in many ways, the best medicine.

  2. I beg to differ – there is you, x3 here, and JT.

    From a sociological point of view, ‘gossip’, for lack of a better word, is not a waste of time or bandwidth. It’s our, Society’s, way of checking with each other what’s appropriate and/or acceptable behavior.

    We have to get along and we have to be able to figure out who we can get along with, as well.

    The Hippocratic oath is interesting to read in all its versions – especially when dealing with physicians, today, and critiquing our health care system, isn’t it?

    There really are good docs out there. I hope you have great relationships with yours. If not, I can probably help you.

  3. There is in truth only one of me, but the gender is correct!

    I am no fan of the omnipresent Spears either. I was spoofing the absurd way she dominates our public discourse..even to law blogs. What a colossal waste of bandwidth…

    I promise not to be so larky again. She is after all a tragic figure.

    Thanks, Patty, for the expansion on the Hippocratic Oath. I have had more than my share of dealing with the medical profession but never read the oath they are bound to.

  4. Down, boys. I’m no big fan of BS -as you know, however in fairness, unless I miss my guess, there must be even more to ‘the story’,
    than usual!

    My guess is her psychologist was compelled to create a formal record with the State of CA Board of Licensing to protect his/her own license and reputation and probably not so much as to ‘invent’ aspersions to ‘Dr. Phil’.

    With “friends” like ‘Dr. Phil’, in this instance in particular, who needs mental illness? He should have known better from the “git-go”, as it were, and he, along with others, has done more harm. Even if Britany is the only one who says so. She has rights beyond confidentiality.

    The fact that Phil McGraw is no longer licensed does not excuse, in my view, his violation of the highest of Hippocratic ideals in the practice of patient care ie Do No Harm…


    From “Harvard Classics Volume 38″Copyright 1910 by P.F. Collier and Son.

    This text is placed in the Public Domain, June 1993.


    HIPPOCRATES, the celebrated Greek physician, was a contemporary of the historian Herodotus. He was born in the island of Cos between470 and 460 B.C., and belonged to the family that claimed descent from the mythical AEsculapius, son of Apollo. There was already along medical tradition in Greece before his day, and this he is supposed to have inherited chiefly through his predecessor Herodicus; and he enlarged his education by extensive travel. He is said, though the evidence is unsatisfactory, to have taken part in the efforts to check the great plague which devastated Athens at the beginning of the Peloponnesian war. He died at Larissa between 380and 360 B.C. The works attributed to Hippocrates are the earliest extant Greek medical writings, but very many of them are certainly not his. Some five or six, however, are generally granted to be genuine, and among these is the famous “Oath.” This interesting document shows that in his time physicians were already organized into a corporation or guild, with regulations for the training of disciples, and with an esprit de corps and a professional ideal which, with slight exceptions, can hardly yet be regarded as out of date. One saying occurring in the words of Hippocrates has achieved universal currency, though few who quote it to-day are aware that it originally referred to the art of the physician. It is the first of his “Aphorisms”: “Life is short, and the Art long; the occasion fleeting; experience fallacious, and judgment difficult. The physician must not only be prepared to do what is right himself, but also to make the patient, the attendants, and externals cooperate.


    1. Medicine is of all the arts the most noble; but, owing to the ignorance of those who practice it, and of those who, inconsiderately, form a judgment of them, it is at present far behind all the other arts. Their mistake appears to me to arise principally from this, that in the cities there is no punishment connected with the practice of medicine (and with it alone) except disgrace, and that does not hurt those who are familiar with it. Such persons are the figures which are introduced in tragedies, for as they have the shape, and dress, and personal appearance of an actor, but are not actors, so also physicians are many in title but very few in reality.

    2. Whoever is to acquire a competent knowledge of medicine, ought to be possessed of the following advantages: a natural disposition; instruction; a favorable position for the study; early tuition; love of labour; leisure. First of all, a natural talent is required; for, when Nature leads the way to what is most excellent, instruction in the art takes place, which the student must try to appropriate to himself by reflection, becoming an early pupil in a place well adapted for instruction. He must also bring to the task a love of labour and perseverance, so that the instruction taking root may bring forth proper and abundant fruits.

    3. Instruction in medicine is like the culture of the productions of the earth. For our natural disposition, is, as it were, the soil; the tenets of our teacher are, as it were, the seed; instruction in youth is like the planting of the seed in the ground at the proper season; the place where the instruction is communicated is like the food imparted to vegetables by the atmosphere; diligent study is like the cultivation of the fields; and it is time which imparts strength to all things and brings them to maturity.

    4. Having brought all these requisites to the study of medicine, and having acquired a true knowledge of it, we shall thus, in travelling through the cities, be esteemed physicians not only in name but in reality. But inexperience is a bad treasure, and a bad fund to those who possess it, whether in opinion or reality, being devoid of self-reliance and contentedness, and the nurse both of timidity and audacity. For timidity betrays a want of powers, and audacity a lack of skill. They are, indeed, two things, knowledge and opinion, of which the one makes its possessor really to know, the other to be ignorant.

    5. Those things which are sacred, are to be imparted only to sacred persons; and it is not lawful to impart them to the profane until they have been initiated into the mysteries of the science.

  5. And I can see a visibly troubled Sen Arlen Spector speaking for confirmation:

    “While this nominee is highly unusual in lacking legal background and even a college education, still the high traditions of our Senate show many such senators with similar lack of credentials who had illustrious careers and made significant contributions to our law.

    This nominee will give to the Court a unique perspective and perhaps balance the troubling tendencies of late to arid legalisms in pursuit of pre-determined results. This nominee has NO agenda and no discernable views on constitutional interpretation. None whatsoever! In fact she will bring to the Court a fresh sensibility uncluttered with the partisan biases that have paralyzed our government.”

    A no-brainer!!

  6. And of course the NYT would have to give Ms Greenhouse her walking papers and hire Nancy Grace as its Supreme Court correspondant…..

    Justice as entertainment…its only a matter of time.

  7. And I only hope that the next president nominates Ms Spears to the Supreme Court when a vacancy appears!

    Finally the masses will focus their dull attention to the workings of American constitutional law!! Decisions will no longer fly under the radar of public opinion. Cases will be high drama for everyone!

    “Justice Britany rules that federal pre-emption does not apply to rehab clinic tort cases!”

    “Justice Britany in dissent on controversial right to life case!”

    “Justice Britany strikes down state driver test requirements”

    American law will be transformed!

Comments are closed.