01-002602PL Department Of Health, Board Of Psychology vs. John J. Schulte Status: Closed Recommended Order on Wednesday, November 28, 2001.

Summary: Respondent`s sexual involvement with patient dictates revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

PSYCHOLOGY, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2602PL

)

JOHN J. SCHULTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis held a formal

administrative hearing in this case on October 9, 2001, in

Jacksonville, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Mary Denise O'Brien, Esquire

Agency for Hea lth Care Administration

2727 Mahan Drive, Building 3

Mail Stop 39

Tallahassee, Florida 32308

For Respondent: Jesse Suber, Esquire

117 South Gadsden Street

Post Office Box 1049

Tallahassee, Flor ida 32301

STATEMENT OF THE ISSUE

The issue in the case is whether Respondent committed

allegations of Section 490.009(2), Florida Statutes, sufficient

to justify the imposition of administrative penalties with

regard to his licensure as a psychologist i n the State of

Florida.

PRELIMINARY STATEMENT

On May 8, 2001, the Agency for Health Care Administration,

Board of Psychology, filed an Administrative Complaint against

Respondent, John J. Schulte. Respondent is alleged to have

violated Section 490.009(2) (k), Florida Statutes, by committing

any act upon a patient which constitutes sexual misconduct;

Section 490.009(2)(v), Florida Statutes, by failing to maintain

in confidence a communication made by a patient or client; and

Section 490.009(2)(s), Florida Statutes, by failing to meet the

minimum standards of performance in professional activities when

measured against generally prevailing peer performance.

At the formal hearing, Petitioner presented the testimony

of three witnesses and eight exhibits. Res pondent presented the

testimony of three witnesses and six exhibits.

A Transcript of the final hearing was filed on November 16,

2001. Both parties submitted Proposed Recommended Orders which

have been reviewed and utilized in the preparation of this

Re commended Order.

FINDINGS OF FACT

1. At all times material to these proceedings, Respondent

held a license as a psychologist in the State of Florida.

2. Petitioner, through the Board of Psychology, is the

state agency that licenses and has regulato ry jurisdiction of

psychologists.

3. Respondent provided therapy to S.P. from June 1997

through November of 1999. He also provided therapy to M.R., a

friend of S.P.

4. S.P. sought the services of Respondent as a

psychologist on the recommendation of a rheumatologist treating

S.P. for fibromyalgia. S.P.'s sessions with Respondent started

out with her discussion of her childhood and her family.

Respondent used relaxation techniques to help lessen S.P.’s pain

from fibromyalgia.

5. During the two and a - half years that S.P. was treated

by Respondent, she also saw other psychologists and

psychiatrists where she was treated for panic attacks, anxiety,

bipolar disorder, borderline personality disorder, narcissistic

personality disorder, and histrionic personality disorder.

6. Approximately six months into S.P.'s treatment,

Respondent started becoming more physical with S.P. First, he

rubbed her hand and told her she had smooth skin. S.P.

testified that this made her feel good and felt as if she wer e

getting close to him. It made her want to be around him because

he made her feel safe.

7. Eventually, S.P.'s sessions with Respondent escalated

to the point in which Respondent started to use what he

described to S.P. as a healing - hands technique. Respondent told

S.P. that he had an aura that came out of his hands and he would

move his hands around her body, at first, without touching her.

Later, he used what was described as hands - on healing wherein he

touched her face and moved down her body. Th en his hands went

to her breasts and in between her legs. During these sessions

S.P. was wearing clothes. Over the next few weeks Respondent

engaged in more intimate touching and hugging.

8. Also during this period, Respondent started meeting

with S. P. outside of the office. They met at various places and

sat in his or her car or his truck and talked, hugged, and

kissed.

9. Office visits during this time with S.P. were scheduled

by Respondent two or three times a week, always at 8:00 p.m.

The re lationship between the two was consensual.

10. Respondent gave S.P. several gifts during this time.

The gifts included two stuffed bears, a cell phone and cover, a

children’s Christmas book, and an angel necklace that had been

worn by Respondent’s deceas ed sister.

11. When Respondent’s mother came to town for a visit,

S.P. sent her yellow roses and signed the card as if the flowers

had been sent by Respondent. S.P. charged this to her credit

card.

12. Respondent and S.P. had oral sex numerous times in his

office, in his truck and car, and in her car. When Respondent

traveled to Tampa for a seminar, S.P. also went to Tampa. They

also engaged in oral sex on that trip.

13. The first time Respondent and S.P. had sexual

intercourse was in an office, on the floor in front of the

receptionist desk. Later, Respondent was house - sitting and he

took S.P. to the house, they had wine, danced, and then had

sexual intercourse on the couch. Finally, just prior to a

break - up in October of 1999, they had interc ourse at

Respondent’s office.

14. In November of 1999, Respondent and S.P. thought S.P.

was pregnant. Also in November, Respondent’s wife found out

about the relationship. At that point Respondent decided to end

the relationship with S.P. To that end , he enlisted the help of

M.R., who was also a patient of Respondent and a friend of S.P.

The three of them had a three - way telephone conversation to

discuss the pregnancy issue and whether it should be terminated.

Respondent told M.R. that he and S.P. h ad been having sexual

intercourse. Respondent was scared and confused and did not

want to leave his wife. Respondent and S.P. met one more time

and then he never contacted her again.

15. During the three years that S.P. was seeing

Respondent, he would tell her that he was no longer going to

treat her and she would go to another therapist. However, she

always came back to Respondent. She never went for longer than

a week without seeing Respondent.

16. Testimony of Petitioner's expert establishes that a

patient seeing a therapist is vulnerable and often forms an

emotional attachment to their therapist. The therapeutic

relationship is based on trust and mutual respect, but involves

an unequal power relationship where there’s an expert with

advice and t raining who can help a patient. When a patient

develops feelings toward their therapist, it is often

transference of feelings from other significant people in their

life. It is the therapist’s responsibility to be aware when

transference develops and to use it to promote the therapy and

not to exploit the patient’s vulnerability.

17. It is never accepted treatment for a therapist to

encourage or to engage in sexual activity with a patient. This

is true even if the patient consents or encourages the co ntact.

18. Patients with borderline personality disorders and

bipolar disorders are difficult patients to treat. These are

people who have problems in their inner personal relationships

and with their own identity. They tend to be impulsive and

immatu re. Respondent’s expert testified that patients with

borderline personalities have relationships that tend to be

chaotic. Further, patients with borderline personality

disorders can also be flamboyant and tend to be very seductive.

While false accusatio ns of sexual misconduct are rare, when they

do occur these charges are generally made by persons with

borderline personality disorder.

19. Respondent’s expert also opined that it is not

appropriate for a therapist to get into a relationship with a

patient wherein the patient becomes, as in the instant case, the

therapist to the therapist. It is also not appropriate for a

therapist to give gifts to or engage in sexual acts with a

patient. Ultimate responsibility of the fiduciary relationship

falls on the therapist and he has to say no.

20. During the course of S.P.’s treatment, Respondent

discussed several of his patients with her. He talked about

"Charlie" who was seriously depressed and contemplated suicide.

This was very disturbing to S.P. Responde nt also talked about

two little girls who were involved in a custody/visitation

dispute. He also talked about M.R., who was his patient and

also S.P.’s friend.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the par ties to and the subject matter of this

proceeding pursuant to Section 120.57, Florida Statutes.

22. Section 490.009(2)(v), Florida Statutes, states:

(2) The following acts of a licensee,

provisional licensee, or applicant are

grounds for which the discip linary actions

listed in subsection (1) may be taken.

(k) Committing any act upon a patient or

client which would constitute sexual battery

or which would constitute sexual misconduct

as defined in s. 490.0111.

(s) Failing to meet the minimum standards

o f performance in professional activities

when measured against generally prevailing

peer performance. . . .

(v) Failing to maintain in confidence a

communication made by a patient or client in

the context of such services, except as

provided in s. 490.014 7.

23. Rule 64B19 - 16.003(2), Florida Administrative Code,

states:

It shall constitute sexual misconduct for a

psychologist, who is involved in a

psychologist - client relationship, to engage,

attempt to engage, or offer to engage the

client in sexual interc ourse or other sexual

behavior. Sexual behavior includes, but is

not limited to, kissing, or the touching by

either the psychologist or the client of the

other’s breasts or genitals.

24. Clear and convincing evidence exists that Respondent

engaged in a sexual relationship with S.P.

25. Respondent violated Section 490.009(2)(v), Florida

Statutes, by failing to maintain in confidence a communication

made by a patient or client in that Respondent discussed various

other patients with S.P. and discussed S.P . with M.R.

26. Respondent violated Section 490.009(2)(s), Florida

Statutes, by failing to meet the minimum standards of

performance in professional activities when measured against

generally prevailing peer performance. This was exemplified not

only by s exual misconduct but also by the gift giving and the

use of the patient to listen to the problems of the therapist.

27. Petitioner has met the burden of proving by clear and

convincing evidence that Respondent has violated the above

statute. Ferris v. Tu rlington , 510 So. 2d 292 (Fla. 1st DCA

1987).

28. Petitioner's disciplinary guidelines are set forth in

Rule 64B19 - 17.002, Florida Administrative Code. Those

recommended penalties provide that each violation of the sort

committed by Respondent in this m atter should be punished by

imposition of a fine of $1,000 and revocation of licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Board of Psychology enter a final

order finding Respondent guilty of the allegations set forth in

the Administrative Complaint, imposing an administrative fine in

the amount of $3,000 upon Respondent, and revoking Respondent's

license as a psychologist in the State of Florida.

DONE AND ENTERED this 28th day of N ovember, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of November, 2001.

COPIES FURNISHED :

Mary Denise O'Brien, Esquire

Agency for Health Care Administration

2727 Ma han Drive, Building 3

Mail Stop 39

Tallahassee, Florida 32308

Jesse F. Suber, Esquire

117 South Gadsden Street

Post Office Box 1049

Tallahassee, Florida 32302

Dr. Kaye Howerton, Executive Director

Board of Psychology

Department of Health

4052 Bald Cypr ess Way, BIN C05

Tallahassee, Florida 32399 - 1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A 02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the ag ency that

will issue the final order in this case.