On Petition for Review of a Decision of the District of Columbia Board of Psychology
Before Ruiz and Washington, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Ruiz, Associate Judge.
John W. Compton petitions this court for review of an order issued by the District of Columbia Board of Psychology ("Board") revoking his license to practice psychology for engaging in sexual harassment of a patient and failing thereby to conform to the standards of acceptable conduct and prevailing practice within his profession. He asks us to decide whether evidence almost exclusively hearsay in nature constituted the critical mass of "substantial evidence" required under principles of administrative law to sustain the Board's decision. After a measured examination of the record commensurate with our limited standard of review, we hold that the particular hearsay evidence at issue in this case, which formed the core of the accusation, was too insubstantial to support the revocation order. We accordingly reverse and remand the case for further proceedings.
Dr. Compton has been a practicing psychologist since 1969. In 1981, he commenced a joint practice with Dr. Doree Waldbaum Lynn providing individuals and couples group therapy. They also developed a successful mentoring program for young mental health professionals establishing their careers. The joint therapy practice and professional mentoring program continued for fourteen years until the autumn of 1995 when Drs. Compton and Lynn dissolved their professional relationship.
During its lifetime, the partnership grew into "one of the largest . . . in Washington, D.C.," propelling both doctors into successfully cross-marketed individual and joint practices. The instant case is an apt example. In 1986, Dr. Compton began treating F.M.K., a licensed professional counselor herself. Apparently pleased with the individual mental health services she received, F.M.K. commenced couples group therapy with her husband, which was co-led by Drs. Compton and Lynn. F.M.K.'s husband thereafter began a separate course of individual treatment with Dr. Lynn. Beginning in 1991, F.M.K. was additionally mentored by Dr. Compton, and to a lesser extent by Dr. Lynn, in the management of her own professional practice. While F.M.K.'s individual therapy with Dr. Compton concluded in 1993, both the couples group therapy and professional mentoring continued until 1995 when the joint practice dissolved.
In October 1995, two years after her individual therapy with Dr. Compton had ended but while her couples therapy and practice mentoring were still on-going, F.M.K. revealed to Dr. Lynn, apparently during a therapy session, that she "had some sort of sexual connection" with Dr. Compton, vaguely implying that he had engaged in sexual intercourse with her. Although the revelation was "muddled" and "confused," it prompted Dr. Lynn to write a letter to F.M.K. on December 18, 1995, shortly after the joint practice had dissolved, expressing concern about the allegations, urging F.M.K. to seek therapy on the matter, and suggesting that F.M.K. release Dr. Lynn from her duty of confidentiality so that Dr. Lynn could report the matter to the appropriate authorities. F.M.K. did not respond to the letter, and Dr. Lynn did not make a report to the licensing authorities.
Several months later, in February 1996, F.M.K. and her husband commenced a new treatment regime in the form of marital counseling with Dr. John Zinner. During these counseling sessions, they identified Dr. Compton's alleged sexual misconduct as the root cause of their marital discord. Thereafter, in August 1996, F.M.K. commenced individual psychotherapy with Dr. Susan Lazar and again revealed Dr. Compton's alleged sexual misconduct.
F.M.K. filed a lawsuit in 1997 in the Superior Court of the District of Columbia, alleging that Dr. Compton's sexual misconduct constituted medical malpractice and that Dr. Lynn had negligently failed to protect F.M.K. from the abuse. Both F.M.K. and Dr. Compton were deposed during discovery. The case ultimately settled before trial.
Thereafter, Drs. Zinner and Lazar filed on their own initiative a joint complaint with the Board regarding Dr. Compton's alleged misconduct. The Board acted on the complaint by issuing a notice of intent to bring disciplinary proceedings against Dr. Compton, charging him with engaging in sexual harassment of a patient*fn2 in violation of the standards of acceptable conduct and prevailing practice within the psychology profession.*fn3 Dr. Compton filed a timely request for a hearing, and the matter was assigned to a D.C. Department of Health administrative law judge ("ALJ").*fn4
During a preliminary hearing on March 19, 2002, the government moved to admit into evidence portions of F.M.K.'s deposition testimony from the 1997 civil suit. The government explained that it intended to call F.M.K. to the witness stand only in rebuttal, if at all.*fn5 Dr. Compton objected to substituting F.M.K.'s deposition for her live testimony, arguing that her designation by the government as a rebuttal witness established her availability, thus obviating ...