CALIFORNIA ASSOCIATION OF PSYCHOLOGY PROVIDERS et al., Plaintiffs and Respondents, v. PETER RANK, as Director, etc., et al., Defendants and Respondents; CALIFORNIA HOSPITAL ASSOCIATION et al., Movants and Appellants.
No. S002524
Supreme Court of California
June 25, 1990.
51 Cal. 3d 1
Horvitz, Levy & Amerian, Horvitz & Levy, Ellis J. Horvitz, Grant Marylander and David S. Ettinger for Movants and Appellants.
Kirk B. Johnson, Sidley & Austin, Carter G. Phillips, Onek, Klein & Farr, Joel I. Klein, Munger, Tolles & Olson, Allen M. Katz, Davis, Cowell &
Licht & Bloom, Michelle H. Licht, Richard H. Bloom, Hogan & Hartsten, Clifford D. Stromberg and Barbara F. Mishkin for Plaintiffs and Respondents.
Jennifer & Block, Donald N. Bersoff and John Keiser as Amici Curiae on behalf of Plaintiffs and Respondents.
No appearance for Defendants and Respondents.
OPINION
BROUSSARD, J.—The issue before us is whether a hospital may permit clinical psychologists to take primary responsibility for the diagnosis and treatment of their hospitalized patients. Prior to 1978, regulations of the Department of Health Services (hereafter Department) declared that a psychiatrist must take charge of the diagnosis and treatment of all patients admitted to psychiatric wards or hospitals.1 In 1978, however, the Legislature enacted
When the Department in 1983 reissued its 1975 regulations prohibiting hospitals from permitting a psychologist to carry primary responsibility for the diаgnosis and treatment of patients, plaintiffs sued for declaratory relief. The trial court granted their motion for summary judgment, declared the regulations invalid, and directed the Department to issue new regulations permitting psychologists to take primary responsibility for the diagnosis and treatment of hospitalized patients. After a complex procedural history, recounted later in this opinion, the Court of Appeal reversed the trial court.
I. BACKGROUND AND HISTORY OF THIS LITIGATION
Following the enactment of
Plaintiffs, the California Association of Psychology Providers (CAPP) and several individual clinical psychologists, brought suit against the Department, the Departmеnt of Finance, and their directors. The complaint asserted seven causes of action. The first simply set out the facts recited previously in this opinion. The second cause of action sought mandamus on the theory that the regulations conflict with the statute. The third sought mandamus on the theory that the regulations were adopted in violation of the public hearing requirements of
Plaintiffs moved for summary judgment on the seventh cause of action. The trial court granted the motion, and entered a judgment declaring that under
The Department announced that it would not appeal the trial court order and, about a month after the oral statement of decision (and before the filing of the written judgment), adopted the regulations as directed by the court. The California Hospital Association, the California Medical Association, and the California Psychiatric Association, joined by individual doctors, moved to vacate the judgment. The trial court denied the motion for want of standing, and the moving parties appealed.
Plaintiffs moved to dismiss the appeal, contending that appellants were not properly parties to the action and that the Department‘s adoption of new regulations rendered the matter moot. The Court of Appeal granted the motion. In an order dated October 16, 1986, we granted appellants’ petition for review and retransferred the case to the Court of Appeal with directions to vacate the order of dismissal.
Upon retransfer, the Court of Appeal ruled sua sponte that the trial court judgment was not appealable. On November 25, 1987, we again granted review and retransferred, directing the Court of Appeal to vacate its dismissal and to hear the appeal on its merits.
Pursuant to our order, the Court of Appeal addressed the merits of the appeal and reversed the judgment below. It held that the Legislature intended clinical psychologists to hаve the right to diagnose and treat their hospitalized patients without supervision from a physician “only in those instances where a physician has initially ruled out a medical basis for the patient‘s mental disorder and determined that it is not subject to medical treatment, and where the patient‘s mental disorder does not subsequently become susceptible to medical treatment after admission to the health facili-
II. PRELIMINARY PROCEDURAL ISSUES
Our prior orders necessarily determined that the trial court ruling was appealable, that appellants have standing to appeal, and that the matter has not become moot. Those rulings are controlling under the doctrine of law of the case. (See Pigeon Point Ranch, Inc. v. Perot (1963) 59 Cal.2d 227, 230-232 [28 Cal.Rptr. 865, 379 P.2d 321].) Nevertheless, because our minute orders did not set out the reasoning of the court, and cannot serve as precedent to guide future decisions, we believe it appropriate to explain the basis for our decisions.
(a) Appealability.
The trial court entered summary judgment only as to plaintiffs’ seventh cause of action. The Court of Appeal originally concluded that because the judgment did not address plaintiffs’ other six asserted causes of action, appeal was barred by the one final judgment rule. (
(b) Standing to Appeal.
“‘Any aggrieved party’ may appeal from an adverse judgment. . . . [O]ne who is legally ‘aggrieved’ by a judgment may become a party of record and obtain a right to appeal by moving to vacate the judgment pursuant to
A review of prior cases indicates that this interest is sufficient to confer standing to appeal. (See County of Alameda v. Carlson, supra, 5 Cal.3d 730, which held that the California Welfare Rights Organization was aggrieved by a declaratory judgment striking down regulations that broadened eligibility for welfare grants; Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146 [154 Cal.Rptr. 676], which held supporters of a growth control initiative were aggrieved by a decision mandating issuance of building permits contrary to the terms of the initiative; Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158 [143 Cal.Rptr. 633], which held a homeowners group aggrieved by a judgment invalidating an initiative that removed their homes from a redevelopment plan.) We believe appellant physicians and psychiatrists have an interest adversely affected by the judgment (see Estate of Colton (1912) 164 Cal. 1, 5 [127 P. 643]) comparable to appellants in these cases.
(c) Mootness.
Plaintiffs contended that the case became moot when the Department complied with the trial court‘s order and adopted new regulations. But the Department did not adopt those regulations as a result of ordinary administrative proceedings, but instead in response to the trial court‘s judgment. So long as that judgment is in effect, the Department is not free to reconsider the regulations in question. We cannot assume that the Department would adopt the same regulations if the judgment were overturned.
The present case is thus comparable to County of Alameda v. Carlson, supra, 5 Cal.3d 730, in which the trial court rendered a judgment invalidating regulations that expanded eligibility for welfare grants and thе Department of Social Welfare then adopted an emergency regulation narrowing eligibility. We held that an organization representing welfare recipients could appeal from the trial court order, and decided the case on the merits.
III. DIAGNOSIS AND TREATMENT OF HOSPITALIZED PATIENTS
The Department‘s 1983 regulations, by providing that a psychiatrist must be responsible for diagnosis and treatment of all mental patients, prohibited
(a) The Scope of Review.
When a court inquires into the validity of an administrative regulation to determine whether its adoption was an abuse of discretion, the scope of review is limited. As we said in Pitts v. Perluss (1962) 58 Cal.2d 824, 833 [27 Cal.Rptr. 19, 377 P.2d 83], “[a]s to quasi-legislative acts of administrative agencies, judicial review is limited to an examination of the proceedings before the officer to determine whether his action has been arbitrary, capricious, or entirely lacking in evidentiary support, or whether he has failed to follow the procedure and give the notices rеquired by law.” (See Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Cal.3d 86, 92-93 [130 Cal.Rptr. 321, 550 P.2d 593].)5 When, however, a regulation is challenged as inconsistent with the terms or intent of the authorizing statute, the standard of review is different, because the courts are the ultimate arbiters of the construction of a statute. Thus, Morris v. Williams (1967) 67 Cal.2d 733, 748 [63 Cal.Rptr. 689, 433 P.2d 697], in finding that the challenged regulations contravened legislative intent, rejected the agency‘s claim that the only issue for review was whether the regulations were arbitrary or capricious. Our opinion explained that “[w]hile the construction of a statute by officials charged with its administration . . . is entitled to great weight, nevertheless, ‘[w]hatever the force of administrative construction . . . final responsibility for the interpretation of the law rests with the courts.’ [Citation.] Administrative regulations that alter or amend the statute or enlarge or impair its scope are void and courts not only may, but it is their obligation to strike down such regulations.” (See Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1388-1389 [241 Cal.Rptr. 67, 743 P.2d 1323]; Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 387 [216 Cal.Rptr. 733, 703 P.2d 73].) Although in determining whether the regulations are reasonably necessary to effectuate the statutory purpose we will not intervene in the absence of an arbitrary or capricious decision, “we need not
(b) The Plain Meaning of Section 1316.5.
“The rules of a health facility may enable the appointment of clinical psychologists on such terms and conditions as the facility shall establish. In such health facilities, clinical psychologists may hold membership and serve on committees of the medical staff and carry professional responsibilities consistent with the scope of their licensure and their competence, subject to the rules of the health facility.
“. . . If a health service is offered by a health facility with both licensed physicians and surgeons and clinical psychologists on the medical staff, which both licensed physicians and surgeons and clinical psychologists are authorized by law to perform, such service may be performed by either, without discrimination . . .”6
The meaning of
Does this section, by giving the psychologist authority to diagnose and treat psychological disorders, also confer primary responsibility for the diagnosis and treatment? The answer is apparent not only from the language but from the history and purpose of
In short, under
The second paragraph of
We conclude that
(c) The Legislative History of Section 1316.5.
Appellants’ principal argument is that, notwithstanding the wording of
Likewise, Senate Bill No. 1443 in 1980 originally proposed to amend
Finally, the dissent emphasizes that the 1983 Legislature defeated Senate Bill No. 181, which, in language virtually identical to the trial court‘s order, would have provided that “clinical psychologists . . . shall be responsible, within the scope of their licensure, for diagnostic formulations and the development and implementation of individual treatment plans. . . .” On the other hand, after the Department adopted regulations conforming to the trial court‘s order, the 1986 Legislature rejected Assembly Bill No. 3592 which would have overturned that order and restored the prior law. We note the parallel language of that bill and the Department‘s 1983 regulations:
| Assembly Bill No. 3592 | 1983 regulations |
| “A psychiatrist shall be responsible for the diagnostic formulation and the development and implementation of the treatment plan.” | “A psychiatrist shall be responsible for the diagnostic formulation for eаch patient and the development and implementation of the individual patient‘s treatment plan.” |
Appellants conclude from the Legislature‘s removal of specific language relating to diagnosis and treatment from the 1978 and 1980 legislation, and the defeat of the 1983 bill, that the Legislature did not intend to permit psychologists to diagnose and treat patients without psychiatric supervision. The defeat of the 1986 legislation, however, suggests the contrary conclusion. A number of other considerations also lead us to reject appellants’ theory of legislative intent.
First, in attempting to ascertain the legislative intent, the most significant source is the Legislature‘s own declaration of findings and purpose that accompanied the 1978 legislation. It stated in relevant part: “The interests of the people of this state demand that all appropriate resources, including inpatient facilities, be available to assist in the diagnosis, prevention, treatment, and amelioration of psychological problems and emotional and mental disorders. However, a branch of healing arts predominately concerned with such afflictions, psychology, is under present law, unduly restricted in its access to, and utilization of, health facilities. As a result, many patients under the care of a psychologist, when admitted to a hospital, cannot continue to receive care from the therapist оf their choice . . . . [] The Legislature further finds and declares that psychology is an independent health profession, as set forth and prescribed in the Psychology Licensing Law. The role of the psychologist as primary provider of mental health care has been repeatedly recognized at both the state and federal levels of government. In the institutional setting, psychologists play a vital role in the
According to this declaration the Legislature wanted to change “present law,” because that law restricted the utilization of psychologists in “inpatient facilities,” i.e., in hospitals. Since no statute then or now restricted the use of psychologists in hospitals, the Legislature‘s reference to “present law” must have referred to the Department‘s regulations requiring that a psychiatrist supervise diagnosis and treatment of all persons hospitalized for mental illness. We conсlude that the Legislature intended to bring about a change in those regulations.
Moreover, the Legislature identified a particular problem that required correction—that many hospitalized patients could not continue to receive care from their psychologist. The Department‘s regulations required the hospital to give primary responsibility to a physician with whom the patient may have had no previous relationship—a physician who would have the authority to decide that the patient should not receive treatment from the psychologist. Thus, we again may infer an intent to alter the existing regulations.
The legislative declaration that “psychology is an independent health care profession,” and its recognition of the psychologist “as primary provider of mental health care” seem designed to put the two professions—psychology and medicine—on as equal a level as possible within the scope of their respective licensures. The 1980 amendment, providing that where both professions have authority either may perform “without discrimination,” confirms this conclusion. The Department‘s regulations, however, establish a hospital hierarchy under which physicians outrank psychologists as to those functions for which both are licensed and qualified.
Second, after the 1978 bill was enacted, Senator Carpenter requested an interpretation of its language. The Legislativе Counsel responded in a written opinion that under
When the 1980 Legislature considered amending
“Opinions of the Attorney General, while not binding, are entitled to great weight. [Citations.] In the absence of controlling authority, these opinions are persuasive ‘since the Legislature is presumed to be cognizant of that construction of the statute.‘” (Napa Valley Educators’ Assn. v. Napa Valley Unified School Dist. (1987) 194 Cal.App.3d 243, 251 [239 Cal.Rptr. 395].) In Meyer v. Board of Trustees (1961) 195 Cal.App.2d 420 [15 Cal.Rptr. 717], the court found the Attorney General‘s construction of the teacher tenure requirements was decisive of the case, noting that “[a]s a contemporaneous construction, and because he was charged with the duty of rendering an opinion with respect to its meaning, the interpretation of the subject statute by the attorney general in 1936 is entitled to great respect. [Citations.] [] It must be presumed that the aforesaid interpretation has come to the attention of the Legislature, and if it were contrary to the legislative intent that some corrective measure would have been adopted . . . .” (Pp. 431-432.) Again in Ventura v. City of San Jose (1984) 151 Cal.App.3d 1076, 1080 [199 Cal.Rptr. 216], the court relied heavily on an Attorney General opinion concerning the preemptive effect of state fireworks regulation, stating that “We can presume that this five-year-old opinion has come to the attention of the Legislature, and that if it were a misstatement of the legislative intent, ‘some corrective measure would have been adopted.‘”
While we have found no cases extending that rule to constructions by the Legislative Counsel, the logic is the same. Indeed the rule is particularly compelling as to opinions of the Legislative Counsel, since they are prepared to assist the Legislature in its consideration of pending legislation.
Third, the rule of construction on which appellants rely is inapplicable to the present case. They assert that “[t]he rejection by the Legislature of a specific provision contained in an act as originally introduced is most persuasive to the conclusion that the act should not be construed to include the omitted рrovision.” (Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 607 [45 Cal.Rptr. 512].) That principle, however, cannot
In the present case, the language adopted by the Legislature—“scope of licensure” (1978 law) and “authorized by law to perform” (1980 law)—includes the authority to diagnose and treat patients, so we cannot infer an intent to exclude authority to perform such acts. And the 1980 provision barring “discrimination” against either profession would clearly prohibit a rule that members of one profession have supervisory authority over the other, so we cannot infer an intent to permit such practices.
Finally, it is well settled “that in attempting to ascertain the legislative intention effect should be given, whenever possible, to the statute as a whole and to every word and clause thereof, leaving no part of the provision useless or deprived of meaning.” (Weber v. County of Santa Barbara (1940) 15 Cal.2d 82, 86 [98 P.2d 492]; Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 478 [156 Cal.Rptr. 14, 595 P.2d 592].) Appellants seek to exclude any statutory interpretation that would give psychologists authority to diagnose and treat hospital patients comparable to their authority over outpatients, but offer no alternative interpretation that would give any significance or role to most of the statutory language. Yet the 1978 and 1980 enactments were intended to do more than simply authorize hospitals to admit clinical psychologists to their staffs; the first sentence of the 1978 law would have sufficed for that purpose. The additional provision authorizing psychologists to carry professional responsibilities consistent with their licensure would lack significance if they may only carry such responsibilities as a psychiatrist designates. The antidiscrimination provision of the 1980 law would be equally meaningless if it did not prohibit the most significant and burdensome discrimination—the rule that a psychologist could not take responsibility for the diagnosis and treatment of his patients.
In conclusion, it is evident to us that the purpose of the 1978 and 1980 legislation was to change existing regulations and practices that prevented hospitals from fully utilizing the services of clinical psychologists to diagnose and treat patients. In enacting this legislation, the Legislature replaced the specific language originally proposed with more general language—language that was less offensive to the medical profession, less likely to provoke
(d) The Court of Appeal Opinion.
The Court of Appeal also concluded that a psychologist could assume responsibility for diagnosis and treatment of patients, but held he or she could do so in a hospital only “in those instances where a physician has initially ruled out a medical basis for the patient‘s mental disorder and determined that it is not subject to medical treatment, and where the patient‘s mental disorder does not subsequently become susceptible to medical treatment after admission to the health facility.”
We perceive no statutory basis for this distinction between hospital practice and outpatient practice.
Appellants contend that hospital practice is different because hospitalized patients generally have more serious disorders. It is up to the Legislature, however, to decide whether and how to distinguish between outpatient and hospital practice, and whether any restrictions on the psychologist‘s hospital practice should take the form of law, administrative regulation, or hospital rule. The Legislature here has chosen to leave the matter to the discretion of each hospital. By authorizing hospitals to permit psychologists to carry responsibilities consistent with their licensure, it has given hospitals discretion to allow psychologists to assume the same responsibilities vis-à-vis their hospitalized patients as in an outpatient setting. Under
There is no bright line distinguishing conditions of physical from those of psychological origin. The ultimate cause of a patient‘s condition may be uncertain or unknown, and in some cases it may be unnecessary to determine that cause to treat him. Indeed, depending on one‘s view of theories concerning the possible genetic or chemical origin of various disorders, it may be impossible for a physician ever to “rule out” the possibility of an organic basis of the patient‘s condition. Thus, the authority of the psychologist cannot hinge upon a requirement that the patient‘s condition derive from a nonorganic cause.
The Court of Appeal‘s second condition—that the disorder is not subject to medical treatment—is also flawed. A patient may receive both medical and psychological treatment. Nothing in the statutes requires that if he receives both, the physician, in the words of аppellant‘s counsel, must be “the captain of the ship.” If it is necessary to designate one person as the “captain,” nothing in the law denies the hospital discretion to consider such matters as the relative importance of the treatment methods and the prior relationship of the practitioners to the patient.12
IV. CONCLUSION
A fundamental concern underlies the arguments of appellants, the regulations of the Department, and the opinion of the Court of Appeal. They fear
Such disputes over the competence of the professions must be decided by the Legislature, not the courts. By defining the licensure of psychologists, the Legislature has necessarily determined that psychologists are generally competent to practice within the scope of that licensure. The Legislature has not itself placed restrictions on that practice in a hospital setting, apart from the requirement in
We conclude that under California law a hospital that admits clinical psychologists to its staff may permit such psychologists to take primary responsibility for the admission, diagnosis, treatment, and discharge of their patients.14 The 1983 Department regulations requiring a psychiatrist to su
Mosk, J., Eagleson, J., and Stone (S. J.), J.,* concurred.
KENNARD, J.—I dissent.
In granting plaintiff psychologists primary responsibility for the admission, diagnosis, treatment and discharge of hospitalized patients, the majority grants by litigation what could not be achieved by legislation. In doing so, the majority fails to adhere to established standards of judicial review; disregards an eminently reasonable interpretation of the governing statute by the agency charged with its enforcement; and, through a strained interpretation of legislative history, converts legislative rejection into implied lеgislative acceptance.
Fidelity to established standards of judicial review, a fair reading of statutory language, and an analysis of legislative history, compel the conclusion that the Department of Health Services (Department) did not act in excess of its authority when it promulgated the challenged regulations.
DISCUSSION
A. The Challenged Regulations
This case involves the validity of regulations promulgated by the Department pursuant to a delegation of legislative power to license and regulate hospitals. (
The standard governing our review of the Department‘s regulations in this case is unambiguous. The regulations are not alleged to be arbitrary,
The majority invokes this legal standard but ignores its application. The majority accords no deference whatsoever to the Department‘s interpretation of the statutes it is charged with implementing and enforcing. Disregarding the Department‘s reasonable interpretation of the law, the majority substitutes its judgment for that of the rulemaking agency, in violation of
As demonstrated below, the challenged regulations are (1) consistent with
B. Statutory Analysis
The statutory language itself does not support the majority‘s holding.
The statute contains no express language granting clinical psychologists primary responsibility for hospitalized patients. The majority, however, insists that such a grant is implied in the statute‘s references to (1) the performance of services by clinical psychologists within “the scope of their licensure” and “without discrimination,” and (2) their eligibility for membership on a hospital‘s medical staff. I disagree.
1. Scope of Licensure
The Psychology Licensing Law is set forth in
As the majority points out,
The key word in the language of
How can primary responsibility for a hospitalized patient‘s care be exercised by one who lacks authority to consider the full range of possible
Patients do not necessarily enter hospitals with psychological conditions neatly divorced from biological, neurological, physiological or genetic disorders. The nature of an illness cannot be ascertained prior to diagnosis by a legally authorized professional. Physicians are legally qualified to provide comprehensive diagnosis and treatment; psychologists are not.
Unlike psychologists, physicians possess the legal authority to consider all possible causes of an illness. The State Medical Practice Act (
Unlike psychologists, physicians are authorized to use “any and all . . . methods,” including drugs and devices, in the treatment of physical and mental conditions. (
There is no support for the majority‘s assertion that the authority to diagnose and treat subsumes the authority to admit patients into hospitals. (Maj. opn., ante, at p. 13, fn. 7.) The assertion cannot be statutorily based; the statutes say nothing about who can admit patients to hospitals. The Department, not this court, has the expertise necessary to resolve this issue.
As demonstrated above, the authority of a physician to diagnose and treat is different and much broader than that granted psychologists. Because
The majority, albeit obliquely, concedes the difference. In a footnote at the very end of its opinion, the majority, without discussion, prior explanation, or citation of relevant authority, says: “Under the trial court‘s order, a physician must be available to examine the patient upon admission and provide medical treatment as needed.” (Maj. opn., ante, at p. 21, fn. 14.) This concession by the majority is inconsistent with the position it has maintained throughout its opinion that psychologists can take primary responsibility for the admission, diagnosis, and treatment of hospitalized patients.
2. Prohibition Against Discrimination
The antidiscrimination clause does not address the issue of who has primary responsibility for a patient. It simply requires that when psychologists and physicians are both authorized to provide the health service, one may not be preferred over the other. Thus, if psychological services are required as part of the treatment of a patient, a physician may not be selected to perform the services over a psychologist. The clause neither says nor implies that psychologists are to be given overall primary responsibility for the admission, diagnosis, treatment and discharge of hospitalized patients.
The majority asserts that the regulations violated the antidiscrimination language because a рsychologist performing psychological services would be subject to the supervision of a psychiatrist. (Maj. opn., ante, at pp. 13-14.) The majority‘s unarticulated assumption is that primary responsibility for a patient necessarily entails physician control over a psychologist‘s performance of psychological services. It does not. Primary responsibility may encompass a physician‘s decision to refer a patient for psychological evaluation; it does not follow, however, that the reference therefore includes control over the psychologist‘s performance. A physician may also decide,
Although the medical needs of a patient may require the psychiatrist to change the treatment plan, this court should not assume, as the majority does, that “when a psychiatrist refers a patient to a psychologist for psychotherapy,” the psychiatrist would exercise his or her authority to control the psychologist‘s performance. (Maj. opn., ante, at pp. 13-14, fn. 8.) Inherent in the concept of referral is a recognition of the particular competence and expertise of the health provider to whom the patient is referred. Heavy-handed supervision would be inconsistent with this recognition, whether the referral be to a radiologist or a psychologist.
3. Membership on Medical Staff
This provision does nothing more than afford a clinical psychologist on a hospital‘s medical staff a voice in the policymaking body of the hospital; it does not grant the psychologist primary responsibility for patients.
The analysis above mirrors the interpretation of the statute by the Department.
C. Legislative History
The legislative history of
1. Senate Bill No. 259
In 1978, Senator Carpenter introduced Senate Bill No. 259, which formed the basis for
This entire provision, however, was deleted before the Legislature‘s passage of the bill. (Sen. Amend. to Sen. Bill No. 259 (1977-1978 Reg. Sess.) Jan. 19, 1978.) As enacted in 1978,
It was not long before Senator Carpenter sought to amend
2. Senate Bill No. 1443
In 1980, Senator Carpenter introduced Senate Bill No. 1443, whiсh proposed amending
Not only did this language resemble that contained in Senator Carpenter‘s original version of Senate Bill No. 259, which I discussed earlier, but it
As relevant here, the amendment added the following language to the statute: “If a health service is offered by a health facility with both licensed physicians and surgeons and clinical psychologists on the medical staff, which both licensed physicians and surgeons and clinical psychologists are authorized by law to perform, such service may be performed by either, without discrimination.” (Sen. Amend. to Sen. Bill No. 1443 (1979-1980 Reg. Sess.) May 7, 1980; Stats. 1980, ch. 730, § 1, p. 2178.)
Almost three years later, Senator Carpenter again attempted, through Senate Bill No. 181, to expand the responsibility of psychologists over hospitalized рatients.
3. Senate Bill No. 181
Senate Bill No. 181, which Senator Carpenter introduced in January 1983, proposed adding a section 1316.7 to the Health and Safety Code to grant clinical psychologists primary responsibility for the diagnosis and treatment of hospitalized patients.
In April 1983, Senator Carpenter amended his bill by proposing that, instead of creating a new section, the bill‘s language be used to modify
There is a marked similarity between the language that the trial court ordered the Department to adopt and the language of Senate Bill No. 181
| Trial Court Order ¶8 | Senate Bill No. 181 |
| “The Department of Health Services is ordered to amend Title 22 Cal. Admin. Code §§ 70577(d)(1) and 71203(a)(1)(A) to provide as follows: ‘Psychiatrists or clinical psychologists within the scope of their licensure and subject to the rules of the facility shall be responsible for the diagnostic formulation for their patients and the development and implementation of each patient‘s treatment plan.‘” | “[C]linical psychologists as defined in |
The legislative history of
Nevertheless, the majority maintains the contrary. It claims that the 1978 statute‘s legislative declaration evidences an intent by the Legislature to expand the authority of clinical psychologists. (Maj. opn., ante, at pp. 15-16.) The majority has misread and mischaracterized the declaration, as I shall demonstrate.
Prior to 1978, the status of clinical psychologists on a hospital‘s staff was highly uncertain. Often, they were excluded from hospital privileges. Department regulations that were then in effect provided that the composition of the organized professional staff of a health facility would consist of physicians, dentists, and podiatrists.3 As the Department‘s Enrolled Bill Report to the Governor explained: “Existing law is silent on whether a health facility may grant staff privileges to a licensed clinical psychologist. While a number of hospitals in California have granted prescribed privileges to clinical psychologists, supporters of SB 259 maintain that the bill is necessary to make it explicit that clinical psychologists may be given such
Therefore, as set forth plainly in the legislative declaration to the 1978 statute and in the bill report to the Governor, the purpose of the statute simply was to ensure that clinical psychologists could become staff members of a hospital.
Equally misplaced is the majority‘s reliance on an opinion of the Legislative Counsel dated January 4, 1979, and an unpublished letter by the Attorney General of March 15, 1979. Both were in response to a request from Senator Carpenter for an interpretation of the 1978 statute, and both concluded that under the statute clinical psychologists were authorized to take primary responsibility for hospitalized pаtients. The majority argues that, because these opinions were rendered before the Legislature considered amending the statute in 1980, the Legislature had “the opportunity to correct matters” if the opinions were incorrect in their interpretation of the 1978 statute. The Legislature‘s failure to state to the contrary in its amendment of the statute, the majority reasons, indicates its acceptance of the statute‘s construction by the Legislative Counsel and the Attorney General before the statute‘s amendment. (Maj. opn., ante, at pp. 16-17.)
As a general principle of statutory construction, the rule of legislative acquiescence or inaction relied on by the majority is “a slim reed upon which to lean” when applied to precedential judicial decisions. (Quinn v. State of California (1975) 15 Cal.3d 162, 175; see also United States v. Price (1960) 361 U.S. 304, 310-311.) In this case, the majority‘s reliance on the rule is wholly unjustified. When a court has interpreted a statute and that construction is not altered by subsequent legislation, there is, in appropriate circumstances, a reasoned basis to presume that the Legislature may be aware of the judicial construction and approves of it. (See, e.g., Quinn v. State of California, supra, at p. 175; People v. Hallner (1954) 43 Cal.2d 715, 720.)
Although the Legislature is presumed to know of existing judicial decisions, its awareness of a statutory analysis by the Attorney General or the Legislative Counsel is more doubtful, and the relevant circumstances should be carefully evaluated. In this case, the majority relies on documents that wеre never published and were issued some four years before the Legisla
Moreover, even if the documents had been brought to the Legislature‘s attention, the Legislature was free to disregard them. A published decision of an appellate court construing a statute must be considered by the Legislature because it is binding on all of the trial courts in the state. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Unless abrogated by the Legislature or contradicted by another appellate court opinion, statutory construction by an appellate court is authoritative and “‘becomes as much a part of the statute as if it had been written into it originally.‘” (People v. Hallner, supra, 43 Cal.2d 715, 720.) By contrast, an analysis of a statute by the Attorney General, or by the Legislative Counsel, binds no one. (See, e.g., Napa Valley Educator‘s Assn. v. Napa Valley Unified School Dist. (1987) 194 Cal.App.3d 243, 251; People v. Vallerga (1977) 67 Cal.App.3d 847, 870.) If the theory of legislative acquiescence in a judicial construction is a “slim reed” (Quinn v. State of California, supra, 15 Cal.3d 162, 175), how are we to characterize the majority‘s reliance on interpretations by the Attorney General and the Legislative Counsel that the Legislature may not have known of and was in any event free to disregard?
Finally, the pertinent statutes were given another and different interpretation, which was published, that the majority ignores in its discussion of legislative acquiescence. The Department‘s construction of those statutes, which is entitled to great weight (Highland Ranch v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at p. 859; Meyer v. Board of Trustees (1961) 195 Cal.App.2d 420, 431), was embodied in the regulations it adopted on January 6, 1983. Senate Bill No. 181 was introduced the same month, amended in April 1983, and overwhelmingly rejected on September 14, 1983. If we are to assume anything about the Legislature‘s awareness of existing interpretations, we should assume that the Legislature was aware of, and acquiesced in, the interpretation of the Department.
In sum, to construe
CONCLUSION
Lucas, C. J., and Panelli, J., concurred.
Appellants’ petition for a rehearing was denied September 20, 1990, and the opinion was modified to read as printed above. Arabian, J., did not participate therein.