Can "They" Do That?

The lady was angry, upset, and visibly shaken. She had just left a meeting with the investigators of her licensing board. They accused her of being a drug addict. She could admit to being a drug addict and enroll in their impaired professional program or they would revoke her license to practice. She had denied having a drug addiction problem. The investigators showed her affidavits from four physicians in support of their contention that she had a drug problem. She grabbed the affidavits and stormed out of the Board’s office. She shoved the affidavits at me.
“I can’t understand why these doctors would say that I have a drug problem. They are friends of mine. We work together.”
I noticed that none of the affidavits had been signed. I called each of the four physicians. They denied even discussing affidavits with the investigators from the licensing board. I was able to get affidavits from the doctors in support of my client. None thought that she had a drug problem. The licensing board dropped the charges against her.
The experience reminded me of one of my favorite shows – The Closer. In it, Deputy Chief Brenda Lee Johnson wrangles confessions from criminal suspects. She lies to them and we all applaud her craftiness as the evil doers are hauled off to jail. But can the police use Deputy Chief Johnson’s tactics in real life? What about investigators for licensing boards? Do the laws restricting the activities of police apply to licensing board investigators?
The Constitution prohibits law enforcement from using coerced confessions. Police cannot beat a suspect. They cannot starve him, deprive him of sleep, or deny bathroom breaks. Water boarding is generally frowned upon. If officers interrogate a suspect in custody, they must first advise him of his Miranda rights. However the courts have allowed police to lie to suspects about the evidence they may have. They can claim to have found the suspect’s fingerprints at the crime scene. They can claim to have witnesses who will incriminate the suspect. They can claim that the suspect failed a lie detector test or that they found the victim’s blood on the suspect’s clothes. This is especially true when the suspect is not in custody during the interrogation.
Although the police have leeway when trying to obtain confessions, prosecutors and judges are bound by ethical obligations and cannot lie to suspects to get confessions. In a murder case from Carrboro, North Carolina, the police showed the defendant a letter that they claimed the District Attorney had written. In the letter, the DA supposedly said that he would seek the death penalty if the suspect did not confess to the murder. When the attorney for the defendant challenged his client’s subsequent confession, the DA denied having written the letter. The court ruled that the police had illegally obtained the confession by implicating the DA’s office.
So in the case with the four fake affidavits, it appears that the investigators for the licensing board did not violate the law. They did not beat, starve, or otherwise physically abuse my client. They only lied to her. As they are not members of law enforcement, they could not hold her in the interview room against her will. She obviously knew that she was free to leave at any time. They did not have to give Miranda warnings to her before asking questions because she was not in custody.
This is not the only case I’ve handled that involved questionable tactics used by licensing board investigators. In another case, my client was charged with exceeding her scope of practice. The investigator relied on a statement she had allegedly obtained from a physician to support the charges. When I contacted the physician, he denied having been interviewed. When faced with testimony from this physician, the Board dropped the charges against the licensee.
These cases make it clear that people who must have a license in order to work, such as physicians, dentists, pharmacists, nurses and others, should refuse to answer questions from licensing board investigators unless they have first retained legal counsel. The attorney can protect the licensee from many of the above abuses.
Most health care providers have malpractice insurance. Usually, those policies offer licensure defense coverage. These policies will reimburse the provider for many of the expenses involved in cases brought by licensing boards. If a licensing board contacts a provider concerning a complaint, the provider should contact his insurance carrier before responding to the licensing board. The insurance carrier will either assign one of its attorneys to defend the claim or will allow the licensee to obtain a lawyer of his or her own choosing. Once the licensee has retained counsel, the licensee should refer all calls from the board’s investigators to his or her lawyer. It is not appropriate for the investigator to continue to try to question the licensee once the licensee has notified the board that an attorney is handling the case. In another case I handled, when my client told the investigator that she had a lawyer, the investigator continued questioning the provider. She asked, “Why do you think you needed a lawyer?” “Did you do something wrong?” My client wisely hung up the telephone.
So, “they” can “do that”, but only if you let them. Be wise. At the first contact from an investigator, get a lawyer. Don’t try to handle the problem on your own. It will not go well.