FILED DECEMBER 13, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
DARLENE A. TOWNSEND, Ph.D., ) No. 34754-1-III ) Appellant, ) ) v. ) ) UNPUBLISHED OPINION STATE OF WASHINGTON ) DEPARTMENT OF HEALTH, ) ) Respondent. )
PENNELL, A.C.J. — Darlene Townsend, PhD, appeals a superior court decision
affirming an administrative order suspending her license as a marriage and family
therapist for four years. We affirm.
FACTS
Factual background 1
This case arises from the therapeutic treatment of three members of the same
family. In April 2008, Darlene Townsend, PhD, a licensed family and marriage therapist,
began treating “Client A” at her local practice in Spokane. These therapy sessions
1 Dr. Townsend did not assign error to any of the findings of fact from her administrative hearing. Those findings are verities on appeal. Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 728, 818 P.2d 1062 (1991). This factual recitation is primarily drawn from the unchallenged findings of the health law judge (HLJ) and the administrative review officer. The one substantive difference between the findings of the HLJ and the review officer is noted near the end of the factual summary. No. 34754-1-III Townsend v. Dep’t of Health
continued until 2012, totaling approximately 170 visits. 2 Dr. Townsend provided Client
A with individual, marriage, and family therapy. In November 2009, Dr. Townsend
began seeing six-year-old “Client B.” Client A is Client B’s mother. Dr. Townsend’s
sessions with Client B continued until February 2012. In 2010, Dr. Townsend began
providing therapeutic treatment to Client B’s father (Client C). Client C was married to
Client A at the time. Dr. Townsend provided Client C with individual, marriage, and
family therapy. Dr. Townsend developed treatment plans for Client A and Client B in
June 2008 and December 2009, respectively. By the end of 2010, Dr. Townsend was
providing therapy to Client A (the mother), Client B (the child), and Client C (the father).
During the course of treating this family, Dr. Townsend provided Client A with
small gifts such as teas, herbal remedies, creams, books, and informational pamphlets on
herbal remedies. Dr. Townsend also loaned Client A “two garments described as a white
wool floor length cape and a red or orange floor length coat” that Client A intended to use
for a business venture. Administrative Record (AR) at 387. When Client A’s therapy
was terminated, Dr. Townsend sought Client C’s help in getting the garments returned
to her.
2 The names of Dr. Townsend’s patients that are the subject of the charges against her are confidential. We follow the practice adopted in the administrative and superior court proceedings of not referring to these individuals by their proper names.
2 No. 34754-1-III Townsend v. Dep’t of Health
During the course of treating Client A and Client B, Dr. Townsend suggested
Client B would benefit from antidepressants, including St. John’s Wort, an over-the-
counter supplement. Dr. Townsend had previously sold (at cost) a form of St. John’s
Wort to Client A, and Client A felt pressured by Dr. Townsend to provide the same
supplement to Client B.
In August 2011, Dr. Townsend sent a letter to Client B’s primary care physician
in which she recommended treatment, suggesting specific medications and dosages, for
attention deficit hyperactivity disorder (ADHD). Dr. Townsend also suggested that Client
B might need antidepressants in the future. The physician called Dr. Townsend to discuss
this letter. The physician expressed concern because he had “never received a letter from
a [psychotherapist] giving . . . suggestions for not only a certain class of medication, but
a brand name and dose.” AR at 421. The physician was also concerned that Dr.
Townsend’s suggested dosage was four times the recommended amount. The physician
was also wary of possible interactions between ADHD medication and Client B’s other
medications. When the physician brought up St. John’s Wort, Dr. Townsend stated it
was Client A’s idea. The physician then stated Client A had told him differently, and
Dr. Townsend replied that Client A was untruthful and difficult. Dr. Townsend then
began to describe, in detail, all of the difficulties she experienced with Client A. The
3 No. 34754-1-III Townsend v. Dep’t of Health
physician reminded Dr. Townsend of privacy obligations and redirected the conversation
back to Client B.
Also in 2011, Dr. Townsend attended a meeting at Client B’s school. Client A,
Client C, the principal, and other school staff were also in attendance. The purpose of the
meeting was to discuss Client B’s educational needs. Unprompted, Dr. Townsend began
discussing masturbation as a behavior associated with Client B. Client A and Client C
were shocked, embarrassed, and confused by this because they were not aware Dr.
Townsend would raise the topic of masturbation. The principal and school staff were
also shocked as they had never observed this behavior in Client B.
Near the end of 2011, Client A learned of a civil lawsuit against Dr. Townsend
that resulted in a significant money judgment. Client A was concerned she could lose
Dr. Townsend as a therapist and asked about the lawsuit. The relationship between Dr.
Townsend and Client A changed noticeably after this point, with Client A feeling as
though she was the “bad kid” or “in the dog house.” AR at 390, 1420. This deterioration
in the relationship continued and Dr. Townsend became suspicious that Client A was
trying to set up a lawsuit and obtain a money judgment of her own. Client A discontinued
treatment with Dr. Townsend during January 2012, but on February 5 Dr. Townsend sent
Client A a treatment termination letter and a treatment termination summary seeming to
4 No. 34754-1-III Townsend v. Dep’t of Health
suggest that Dr. Townsend had terminated therapy. Dr. Townsend also gave Client A
a discharge diagnosis of several personality disorders. These diagnoses were contrary to
what Dr. Townsend indicated in therapy and, coupled with the sudden loss of treatment,
had a profound effect on Client A’s mental state. Around this time, Dr. Townsend sent
another letter to Client B’s physician admonishing the physician and accusing him of
threatening her professional license, while also describing more of the issues she
experienced during the course of Client A’s treatment.
Procedural background
In May 2013, Client A filed a complaint against Dr. Townsend with the
Washington State Department of Health. The Department issued a statement of
charges, alleging Dr. Townsend had committed unprofessional conduct in violation
of RCW 18.130.180(4).
In a prehearing order, the health law judge (HLJ) outlined what evidence had been
accepted for the hearing. The Department was allowed to call the nine witnesses it
identified prior to the hearing, and Dr. Townsend was allowed to call the one witness she
identified. Dr. Townsend identified another witness late, and this witness was not
allowed to testify. Only five of the Department’s witnesses ultimately testified. The
Department was also allowed to introduce all of the documentary evidence it identified
5 No. 34754-1-III Townsend v. Dep’t of Health
prior to the hearing. The HLJ rejected an “[u]nknown number of unidentified exhibits”
that Dr. Townsend sought to admit during the prehearing conference. AR at 107.
However, most of the exhibits offered by Dr. Townsend were duplicative of those offered
by the Department.
Relevant to this appeal, Dr. Townsend, Client A, Client C, Client B’s school
principal, and an expert witness for the Department testified at the July 21-22, 2015,
adjudicative hearing. The HLJ found testimony from Client A, Client C, the principal,
and the Department’s expert witness to be persuasive and credible. Based on this
testimony and the documentary evidence admitted during the hearing, the HLJ found
that Dr. Townsend practiced below the standard of care by: (1) treating multiple family
members individually, causing role confusion and undermining objectivity,
(2) suggesting medication and dosages to Client B’s physician, (3) discussing the
masturbation behavior of Client B at the 2011 school meeting, (4) providing gifts and
loaning clothing to Client A during the course of treatment, and (5) failing to clearly
identify, define, and update a treatment plan for Client A.
The Department requested sanctions under “Tier B” of the sanction schedule for
practice below the standard of care. WAC 246-16-810. The Department also identified
several aggravating factors, including Dr. Townsend’s past discipline for similar conduct
6 No. 34754-1-III Townsend v. Dep’t of Health
and her refusal to acknowledge wrongdoing. WAC 246-16-890(2)(b), (3)(f). The HLJ
agreed that the facts underlying Dr. Townsend’s previous misconduct were similar to the
facts here, meaning the prior sanctions did not have a sufficient deterrent effect. The HLJ
found the Department had proved Dr. Townsend committed unprofessional conduct as
defined in RCW 18.130.180(4). 3 The HLJ suspended Dr. Townsend’s license to practice
as a marriage and family therapist for four years. Dr. Townsend was barred from seeking
reinstatement for four years, and she was required to complete 20 hours of training prior
to reinstatement. A 12-month probationary period would then follow.
Dr. Townsend appealed to an administrative review officer alleging numerous
errors in the hearing. The review officer considered and rejected those arguments. The
review officer then issued nearly identical findings of fact and conclusions of law as the
HLJ. The only substantive difference is that the review officer found Dr. Townsend’s
disclosure of confidential information about Client A to Client B’s physician also fell
below the standard of care. 4 The review officer otherwise made the same credibility
3 Due to uncertainty about the appropriate evidentiary standard, the HLJ found the Department had met both the preponderance standard and the clear and convincing standard. 4 The review officer also found that because the adverse civil judgment and resultant agreed order with the Department in the previous case of misconduct occurred in October and November 2011, it was not reasonable to expect Dr. Townsend to have learned from her experiences in that case in time to alter her behavior in the present case.
7 No. 34754-1-III Townsend v. Dep’t of Health
findings as the HLJ and imposed the same sanctions in the final administrative order.
Dr. Townsend then sought review in superior court. The review officer’s decision was
affirmed. Dr. Townsend now appeals to this court.
ANALYSIS
Substantial evidence
Dr. Townsend was charged with unprofessional conduct under the Uniform
Disciplinary Act (UDA), chapter 18.130 RCW. The UDA grants the Department of
Health the authority to discipline persons licensed as marriage and family therapists.
RCW 18.130.040(2)(a)(x), (3); see also former RCW 18.130.020(2)-(3) (2008). If an
investigation gives the Department reason to believe a therapist has committed
unprofessional conduct, as defined in RCW 18.130.180, the Department serves a
statement of charges on the therapist, and the therapist may request a hearing. RCW
18.130.090(1). This hearing is governed by the Administrative Procedure Act (APA),
chapter 34.05 RCW. RCW 18.130.100. If the hearing results in a finding of
unprofessional conduct, sanctions may be imposed such as a reprimand, probation,
suspension, or revocation of license. RCW 18.130.160. Under the APA, a license holder
may appeal an adverse finding to superior court and eventually to this court and beyond.
See RCW 34.05.514, .526.
8 No. 34754-1-III Townsend v. Dep’t of Health
In this court, when reviewing agency action, the standards of the APA are
applied directly to the agency record. Ames v. Dep’t of Health, Med. Qual.
Assurance Comm’n, 166 Wn.2d 255, 260, 208 P.3d 549 (2009). Relevant here, this
court may reverse an administrative order if it is not supported by substantial evidence.
Id.; RCW 34.05.570(3)(e). The party asserting invalidity of an agency action carries
the burden of demonstrating the invalidity. RCW 34.05.570(1)(a). This court’s task is
to determine if substantial evidence supports the findings of the administrative agency.
Ames, 166 Wn.2d at 261. “Substantial evidence is that which is sufficient ‘to persuade a
fair-minded person of the truth of the declared premises.’” Id. (quoting Heinmiller v.
Dep’t of Health, 127 Wn.2d 595, 607, 903 P.2d 433 (1995)). This court does not reweigh
the evidence. Univ. of Wash. Med. Ctr. v. Dep’t of Health, 164 Wn.2d 95, 103, 187 P.3d
243 (2008). Nor does this court disturb credibility findings when, as here, the credibility
findings of the HLJ and the review officer are not in conflict. See Hardee v. Dep’t of Soc.
& Health Servs., 172 Wn.2d 1, 19 n.11, 256 P.3d 339 (2011).
Dr. Townsend appears to argue that substantial evidence does not support the six
different findings of the review officer that she practiced below the standard of care in the
course of treating Client A, Client B, and Client C. To the extent Dr. Townsend makes
9 No. 34754-1-III Townsend v. Dep’t of Health
this claim, she is incorrect. The record contains substantial evidence to support each
finding against Dr. Townsend. Each finding is addressed in turn.
Treating multiple family members causing role confusion and blurring therapeutic objectives
Dr. Townsend testified that she simultaneously saw Client A, Client B, and
Client C for therapy between 2010 and 2012. From her own testimony, it is apparent
that Dr. Townsend was not cognizant of boundaries or a need for boundaries in these
overlapping therapies. Dr. Townsend never clearly delineated what the treatment
objectives were for each client or what steps she took to avoid blurring the lines between
each client’s individual needs. The testimony of Client A and Client C paints a similar
picture. In addition, the client testimony shows that Dr. Townsend frequently brought up
issues raised in Client B’s therapy with Client A and Client C during their own individual
and group sessions.
The Department called an expert witness to testify as to the standard of care for
marriage and family therapists in Washington and whether or not Dr. Townsend’s
treatment of Client A, Client B, and Client C met that standard. That expert had a
master’s degree and certificate in addiction treatment from Seattle University,
membership in two clinical professional organizations, 30 years of experience and
continuing education, and 22 years of experience in private practice. The expert also
10 No. 34754-1-III Townsend v. Dep’t of Health
reviewed approximately 700 pages of documents prior to testifying, including the
treatment records generated by Dr. Townsend. The expert testified that Dr. Townsend’s
actions in treating multiple family members created role confusion and undermined
therapeutic objectivity. The expert described how Dr. Townsend’s actions would have
made it extremely difficult to effectively treat the issues that Client A came to Dr.
Townsend for. The expert also described Dr. Townsend’s actions as creating a “severe
problem in the treatment of Client A.” AR at 1557. One of issues for Client A was her
inability to establish proper boundaries with other people, and by not establishing proper
boundaries between therapies for different clients, Dr. Townsend essentially compounded
the issue for Client A.
The combined testimony of Client A, Client C, and the expert witness constitute
substantial evidence that supports the finding that Dr. Townsend practiced below the
standard of care by treating multiple family members.
Recommending medication for Client B to his physician
The letter Dr. Townsend sent to Client B’s physician is part of the administrative
record. In this letter, Dr. Townsend suggests medication and dosages for ADHD, and
also suggests that Client B may need antidepressants in the future. Client A testified that
she remembered Dr. Townsend making this suggestion to the physician. The expert
11 No. 34754-1-III Townsend v. Dep’t of Health
witness testified that such action by a family and marriage therapist is not appropriate
because a therapist’s training does not quality them to prescribe medication or suggest
medication and dosages to a licensed medical doctor. Nor is it appropriate for a therapist
to send such a letter without obtaining a release of information from the client. The letter
and the testimony from Client A and the expert are substantial evidence that support the
finding that Dr. Townsend recommended medication and specific dosages for Client B to
his physician, and that this action fell below the standard of care.
Violating Client B’s confidentiality at the 2011 school meeting
Three witnesses testified about the 2011 school meeting: Client A, Client C, and
the school principal. All three witnesses testified that Dr. Townsend was present at the
meeting and, out of the blue, brought up masturbation behavior by Client B as a topic the
school officials needed to address or be aware of. The principal testified that this
disclosure left him and others present shocked, confused, and uncomfortable. Client A
and Client C had no advance warning that Dr. Townsend was going to make this
disclosure, nor did they authorize her to make it. Dr. Townsend’s doing so made both
parents feel very uncomfortable. The expert witness testified that this disclosure fell
below the standard of care, especially since none of the teachers had ever reported an
issue with Client B masturbating at school, and there was no release from the parents
12 No. 34754-1-III Townsend v. Dep’t of Health
giving Dr. Townsend permission to divulge treatment information to school officials.
Taken together, this testimony provides substantial evidence to support the finding that
Dr. Townsend practiced below the standard of care when she spoke about masturbation
behavior by Client B at the 2011 school meeting.
Violating Client A’s confidentiality in letters to Client B’s physician
In her phone call with Client B’s physician, Dr. Townsend disparaged Client A’s
character and labelled her as being untruthful, and described to the physician all of the
difficulties Dr. Townsend claimed to be having with Client A. A summary by the
physician of this phone call is part of the administrative record. Also, in her second letter
to the physician, Dr. Townsend continues to disparage Client A while also attacking the
physician. Dr. Townsend discusses Client A’s marital issues and explains how she
believes Client A is untruthful, irresponsible, and the cause of many of Client B’s issues.
Client A testified how these statements shocked her and created the impression that
Dr. Townsend was trying to cause Client A to lose custody of Client B. The expert
witness testified that the “language used and the confidentiality broken” in this letter
“was very surprising to [her] in its lack of [professionalism].” AR at 1569. She testified
that this letter could only serve to heighten Client A’s stress level and it fell below the
standard of care. The letter and testimony surrounding it are substantial evidence
13 No. 34754-1-III Townsend v. Dep’t of Health
supporting the finding that Dr. Townsend practiced below the standard of care when she
divulged confidential information about Client A to Client B’s physician.
Crossing therapist-client boundaries by providing gifts to Client A during treatment
Client A testified that Dr. Townsend provided gifts and loaned her multiple items
during the course of therapy, including two dresses that Client A then used for a business
project. After Client A ended treatment, Dr. Townsend asked for the dresses back and
sought help from Client C in getting them returned. The expert witness described this
action by Dr. Townsend as “dangerously below the standard of care.” AR at 1583. The
expert described how, given the length of the relationship between Client A and
Dr. Townsend, and Client A’s need for help in establishing appropriate boundaries, it
was highly unprofessional for a therapist to loan anything at all to such a client. This
testimony is substantial evidence that supports the finding that Dr. Townsend practiced
below the standard of care and crossed therapist-client boundaries when she loaned or
gifted items to Client A.
Failure to define and update Client A’s treatment plan
Last, the administrative record contains a single treatment plan for Client A that
was developed in June 2008. There is no updated treatment plan in the record. The
closest record resembling an update is a treatment termination summary that was
14 No. 34754-1-III Townsend v. Dep’t of Health
generated when Client A terminated sessions with Dr. Townsend. Dr. Townsend testified
that there was basically no change to Client A’s treatment plan over the nearly four years
that she saw her. Client A testified that Dr. Townsend never told her how her treatment
would develop, how progress would be measured, or what the treatment goals were. She
further testified that Dr. Townsend never really addressed the issues that originally led
Client A to seek therapy. The expert witness testified that Dr. Townsend’s failure to
develop a long-term treatment plan was “far below the standard of practice.” AR at 1555.
Overall, this testimony and the exhibits admitted by the HLJ are substantial evidence that
supports the finding that Dr. Townsend practiced below the standard of care by failing to
define and update Client A’s treatment plan.
Procedural unfairness
In various portions of her brief, Dr. Townsend alleges the administrative hearing
was unfair. She claims that the HLJ was biased against her, that she was not provided
ADA accommodations, and that she was not allowed to present certain evidence or
witnesses. Contrary to the requirements of RAP 10.3(a)(6), Dr. Townsend does not cite
to any legal authority and provides almost no citations to the record. Dr. Townsend’s
failure to comply with the rules of appellate procedure materially hinders this court’s
ability to review her claims. Accordingly, we decline to address Dr. Townsend’s
15 No. 34754-1-III Townsend v. Dep 't of Health
procedural arguments. Brownfield v. City of Yakima, 178 Wn. App. 850, 875-76, 316
P.3d 520 (2013).
CONCLUSION
The decision of the superior court is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Q Pennell, A.C.J. WE CONCUR:
~.J Fearing, J.