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.