December 10, 2002

SUPREME COURT : STATE OF NEW YORK COUNTY OF NEW YORK : I.A.S. PART 25

In the Matter of the Application of Index No. :

118369/02

LISA LANCASTER, Petitioner, For a Judgment Pursuant to Article 78 of the CPLR,

-V-

THE AMERICAN PSYCHOANALYTIC ASSOCIATION,

Respondent.

DeGRASSE, J. :

Petitioner in this Article 78 proceeding seeks to compel respondent to provide copies of all records of hearings that it conducted regarding charges petitioner brought against her psychoanalyst.

FACTS AND PROCEDURAL HISTORY

Respondent The American Psychoanalytic Association ("American") is a not-for-profit professional organization of psychoanalysts. American is comprised of Affiliate Societies and Accredited Training Institutes located in cities throughout the United States.

American has adopted Principles of Ethics for Psychoanalysts ("Principles") and a sort of procedural code for enforcement of the Principles called Provisions for Implementation of the Principles of Ethics for Psychoanalysts ("Provisions"). The Principles are intended to guide Psychoanalysts in their professional conduct toward their patients. The Provisions set forth the manner in which American and its Affiliate Societies and Training institutes implement and enforce the Principles, including procedures for handling complaints against members for alleged breaches of the Principles.

Petitioner was a psychoanalytic patient during the approximate period 1992-99 of Daniel P. Greenson, M.D., a psychoanalyst and a psychiatrist. During the period that he was treating petitioner, Dr. Greenson was a member of American - - and of the San Francisco Psychoanalytic Institute and Society, an Affiliate Society and Accredited Training Institute ("San Francisco Institute").

On December 9, 2000, petitioner filed an ethics complaint against Dr. Greenson with the San Francisco Institute alleging that he* had committed violations of the Principles during the course of his treatment of her, including llsexual and non-sexual boundary violations" and breaches of confidentiality regarding other patients. The San Francisco Institute referred petitioner's complaint to American.

The matter was referred to American's Committee on Ethics. Dr. Greenson was notified of petitioner's complaint. The Committee on Ethics scheduled a hearing for May 3, 2001, and requested the presence of both petitioner and Dr. Greenson. In February 2001, several months prior to the hearing, petitioner was informed in a letter from American of the general contours of the hearing, including the fact that the Committee on Ethics might ask her to leave the hearing for a discrete period so that it could question Dr. Greenson confidentially. Subsequently, petitioner wrote twice to American to protest this procedure. A final letter from American dated March 19, 2001, reiterated that this confidential questioning of Dr. Greenson would go forward. At the hearing petitioner testified and also offered the testimony of witnesses. According to American Dr. Greenson responded to petitioner's allegations with petitioner present in the room. According to petitioner, Dr. Greenson made "sweeping admissions" of the accusations against him. However the Committee on Ethics also at some point during the hearing asked petitioner to leave the hearing room and then took testimony from Dr. Greenson without her being present. American avers, without any contradiction from petitioner, that petitioner left the hearing without protest.

Following the hearing, the Committee on Ethics determined that Dr. Greenson had engaged in "major and repeated sexual and non-sexual boundary violations, committed violations of confidentiality, and exploited the transference of petitioner in her treatment of her." (Answer 39.) The Committee on Ethics voted unanimously to permanently expel Dr. Greenson from American.

A tape recording of the hearing was made. Unfortunately much, if not all, of Dr. Greenson's testimony was not recorded properly and is inaudible on the tape. Petitioner requested a copy of the record of the hearing. American's interpretation of its Provisions is that it is required to provide a complainant with the record only of that portion of the hearing in which the complainant was present in the hearing room. Accordingly, it did not provide petitioner with the portion of the record in which Dr. Greenson addressed the Committee on Ethics in petitioner's absence.

As discussed at greater length below, it is this interpretation by American of the Provisions that petitioner challenges herein.

Dr. Greenson also requested and received a copy of the recording of the hearing. He protested that the absence of his testimony from this recording made it impossible for him to pursue the Provisions' appeals process.

The Committee on Ethics decided to rescind its sanction of Dr. Greenson, and to give him a second chance to testify at a IIlimitedIl hearing held solely for that purpose. A second hearing session was held on December 20, 2001. Petitioner was not invited to attend. Respondent avers, without contradiction from petitioner, that she did not protest her exclusion from this second hearing.

Following this second "limited" hearing, the Committee on Ethics again voted to expel Dr. Greenson from American, apparently on the same grounds that supported its previous expulsion. Dr. Greenson appealed this determination. As provided in the Provisions, an Executive Council Appeals Committee was appointed by officers of American to consider Dr. Greenson's appeal. Dr. Greenson testified before this Appeals Committee on May 15, 2002. American avers that complainants are llcustomarilyll not present at Appeals Committee hearings. Petitioner was made aware of the appeals hearing, but she was not invited to attend. Respondent asserts without contradiction from petitioner that she never requested to be present at the appeals hearing. The appeals hearing was recorded.

Apparently on the same day as the appeals hearing, the Appeals Committee voted to uphold the finding of the Committee on Ethics that Dr. Greenson had committed major and repeated violations of the Principles. It also upheld the expulsion of Dr. Greenson from American. American's Executive Council ratified the decision of the Appeals Committee on May 16, 2002.

Prior to the appeals hearing, petitioner requested American to provide her with copies of all the recordings of all hearing sessions before the Committee on Ethics. American responded that it had already provided her with all recordings to which she was entitled, and that she was not entitled to recordings of any portion of a hearing at which she was not present. Petitioner then brought this proceeding to compel respondent to provide her with a copy of the recording of Dr. Greenson's at the second, lllimited,lf hearing before the Committee on Ethics. It is not clear from her papers whether she also seeks the recording of the appeals hearing.

DISCUSSION

Petitioner relies on section VIII(A) ( 3 ) in support of her argument that she is entitled to a full record of the proceeding, including Dr. Greenson's confidential testimony to the Committee on Ethics. This sections states:

A. In all hearings:
***
( 3 ) A record of the hearing shall be kept, by summary minutes or by stenographic or tape recording. A copy of the record may be obtained by the either the complainant or the charged analyst upon payment of any reasonable charges.

This interpretation is bolstered by section VIII(A)(4) of the Provisions, which gives the complainant the right to cross-examine "any witness on any relevant matter." This section contains some limits on the charged analyst's right to cross-examine the complainant; there is no correlative limitation on the complainant's right to cross-examine the analyst. If the Provisions confer upon complainant a plenary right to cross- examine, it implies that the complainant shall also have a plenary right to be present for direct testimony.

American asserts that section VIII(A)(3) is limited by Section IV(B)(5)(a) which provides in relevant part that:

Attendance at the hearing shall be limited to the Committee members; the charged analyst; the complainant; counsel for the Association, for the charged analyst and for the complainant, each of whom may speak on behalf of his/her client; and witnesses, if any. Those present shall have such rights as are set forth below in VIII.

American argues that sections IV(B(5)(b) and VIII(A)(3), when read together, provide to those persons present at the hearing the right to obtain a copy of the recording only of the portion of the hearing at which they were present.

The court finds that American's interpretation of the plain language of the Provisions is somewhat attenuated. Section IV(B) ( 5 ) (b) could just as easily be interpreted to mean that anyone present at the hearing for any length of time shall have the rights provided in section VIII, including the right of the complainant to obtain a copy of the record. Moreover, section VIII(A) (3) does not delineate any portion of the record that is off-limits to complainants who pay the requisite fee for a copy.

However, an administrative body's interpretation of its own rules is entitled to "great weight." (Johnson v Schembri, 227 AD2d 179, 180; see LeHavre Tenants Ass'n v New York State Division of Housins and Communitv Renewal, 176 AD2d 877.) There are several reasons why American's interpretation of the Provisions cannot be said to be arbitrary and capricious.

First, section VIII(B)(5) of the Provisions states clearly that the "hearing committee shall not be bound by rules of law relating to examination of witnesses or presentation of evidence usually employed in legal proceedings, but may accept evidence that is deemed appropriate and pertinent." This flexible approach to evidence and procedure is appropriate in a limited proceeding that is designed to determine only if an accused has violated American's Principles, and, if so, what action American should take to sanction him. The proceeding is not a criminal trial, where open proceedings and myriad inflexible procedural and evidentiary rules are applied in order to ensure that a defendant is not wrongly deprived of his liberty. Nor is it a civil trial, where the compensation owed a victim of malpractice is a central question. The compelling reasons to bar confidential testimony in criminal and civil trials are not present in the instant administrative proceeding, where the central questions relate to the accused analyst's violation vel non of the Principles and his continued relationship with American.

Second, section VIII(A)(1) of the Provisions provides that the "fair process rights of all concerned parties will be observed in implementing these provisions." It is fundamentally - unfair for a tribunal to assure an accused that his testimony will be kept in confidence, take his testimony with that understanding, and then to breach that confidentiality.

Finally, petitioner was warned that the hearing would include the taking of ex parte testimony from Dr. Greenson. While she protested this aspect of the hearing in letters prior to the hearing, she nonetheless participated in the hearing which indicates an acquiescence to the hearing's procedures. For these reasons, the court finds that American's refusal to provide petitioner with the complete recordings of the relevant hearings was not arbitrary and capricious.

CONCLUSION

This Article 78 petition is denied and the proceeding is dismissed. This constitutes the decision and judgment of t h e court.

J.S.C.