Texas Legislature Takes Action to Better Protect Mental Health Patients

The Texas Legislature has passed bill HB3479 into law to provide mental health patients protection from sexual exploitation by government employees working in mental health and law enforcement. This legislation, which went into effect on September 1st, was authored by Rep. Sherri Greenberg and sponsored by Sen. Judith Zaffirini, is a significant step forward in state's sexual exploitation laws.

There are many circumstances where a person may find themselves in need of the assistance of a mental health service provider, whether it is due to a mental illness such as depression, or due to some crisis in their lives. People in need of such help often find themselves very vulnerable to the professional, trusting and depending on the professional to help them and not harm them. Inherent in this provider/client relationship is a great imbalance of power. This power imbalance can be used positively to help the patient, but if this power is abused; if a client's dependence on a professional is exploited, the client is almost always injured and the professional has betrayed the client's and society's trust. When a client is sexually exploited, the wounds can be particularly deep. It is a violation that goes beyond physical violation. As one victim expressed, "this abuse tears away one's ability to trust others and one's self. It destroys all sense of self, and violates to the very core of one's being; mentally, emotionally, physically, and spiritually." Whether or not a patient "consented" is not the issue. Either way, this is a serious violation of the client's trust and dependence on the professional.

In Texas, sexual exploitation of patients by mental health service providers is already a second degree felony, defined as a form of sexual assault. The Texas Civil Practices and Remedies Code permits a client to sue a mental health service provider who sexually exploits them.

Ironically, if the abusing professional is a law enforcement officer or is a governmental employee, there are some ambiguities in the present civil and penal codes in applying to some of these professionals. Bill HB3479 expands the definitions of "mental health services provider" and "patient" to clarify that these statutes are intended to apply to special peace officers for mental health assignment, such as Mental Health Deputies. These officers are specially trained and certified to assist clients in mental health crisis situations. The changes introduced by this Bill will help deter future abuse of mental health patients by Mental Health Deputies. Legislative focus on this issue is also prompting changes to training materials for such officers.

Gary Schoener, a Licensed Psychologist and Executive Director of the Walk-in Counseling Center of Minneapolis, Minnesota, is a leading international expert and author on this subject. He notes "Texas is one of 15 states to have created such statutes. In Minnesota where criminalization occurred in the early 1980's it has been reported that the incidence/prevalence of such misconduct has dropped."

Texas is one of the few states in the country to have this type of special unit in law enforcement agencies to assist clients in mental health crisis situations. Schoener points out, "people like mental health deputies who assist those with mental health problems and emotional breakdowns have the responsibility to carry out BOTH law enforcement (peace officer) and mental health functions. This brings considerable power and responsibility."

The National Alliance for the Mentally Ill, an active advocacy group for the mentally ill for the past 20 years, has been in the forefront in Texas in supporting the Mental Health Deputy program. Joe Lovelace, speaking on behalf of NAMI Texas in a public hearing regarding HB3479 stated about Mental Health Deputies, "They should be no different than a doctor, clergyman, licensed counselor, psychologist, social worker, and they should not get a free pass to molest, based upon their privileged access to a mental health patient, so we strongly support this bill."

Rep. Greenberg stated, "These officers provide valuable services to their constituencies. Unfortunately, there will always be some bad apples out there and its important that the law offer the public a measure of protection against abuse."

Schoener applauds this decision by the Texas Legislature, noting "Texas is unique in being the first state to specifically name mental health deputies. Other states may want to review their statutes with this in mind."

For the past two decades, sexual abuse of patients has been a leading cause of lawsuits against all types of psychotherapists and counselors, including clergy who are doing counseling. In the case of licensure boards, it is a leading cause of disciplinary actions, including license revocations, in psychology, psychiatry, and social work. It is also common in cases involving other types of health care professionals. Self-report studies, in which professionals are asked if they have ever had sex with a client or patient, have produced varying results, but between 5 and 15% of various psychotherapy professionals who respond to such surveys have admitted to sex with a patient. From one third to as high as 80% of those who admit to such conduct have indicated that it happened more than once.

Sponsored by Senator Judith Zaffirini, HB3479 was jointly authored by Rep Sherri Greenberg, Rep. Toby Goodman, Rep. Garnet Coleman, Rep. Kyle Janek, and Rep. Debra Danburg.