State Has Right to Bar Psychologist Prescribing

Over a year ago, two members of the California Assembly asked the state’s attorney general to issue an opinion on whether California’s prohibition against psychologists’ prescribing psychoactive medications was legal under the state constitution. On December 31 the attorney general delivered his verdict.

Agreeing with arguments made in a letter to him from the California Psychiatric Association (CPA), Attorney General Bill Lockyer concluded that the legislative ban on psychologist prescribing is legal and that the state’s Board of Psychology has no right to issue a regulation granting psychologists the right to prescribe.

It is irrelevant, he said, that some psychologists have received training in psychopharmacology. Such training is not designed to prepare them to replace psychiatrists and other physicians but “to improve the ability of clinical psychologists to collaborate with physicians,” Lockyer pointed out. “It is beyond dispute that the training of a clinical psychologist in the use of prescription drugs is not as extensive as that of a physician.”

In emphasizing that the Board of Psychology is not empowered to endow psychologists with the right to prescribe, the attorney general goes on to explain that the California legislature “has expressly prohibited psychologists from performing certain services,” and chief among these are “prescribing drugs, performing surgery, or administering electroconvulsive therapy.”

While Lockyer said that some clinical psychologists have received extensive education and training in pharmacology and that the Board of Psychology has developed a long list of curriculum topics in pharmacology and the biological basis of behavior, he noted that they are not a required licensing credential. The board “encourages” psychology trainees to take the relevant courses, but there should be no assumption that the training, even if it follows the psychology board’s guidelines, is equal to what physicians receive.

The attorney general also addressed the constitutionality of the state legislature’s ban on psychologist prescribing. Even if it is assumed that clinical psychologists have extensive training in prescribing psychoactive medications, Lockyer said, the constitution’s equal protection clause does bar lawmakers from enacting a statute “that treats different professions differently, where the two professions are not ‘similarly situated.’ ”

He emphasized that clinical psychologists are quite dissimilarly situated when compared with other professionals who have been granted prescribing privileges. He explained that psychologists’ training in pharmacology and biobehavioral issues are for the purpose of improving their “ability to collaborate with physicians” and not to prepare them for independent prescribing. This contrasts with the training dentists, optometrists, and podiatrists may receive, Lockyer noted; these professionals are specifically prepared to act as independent prescribers of the drugs that fall within their scope of practice.

In light of his determination that the statutory ban on psychologist prescribing in California is legal, the attorney general then concluded that were the Board of Psychology to try to give prescribing privileges to psychiatrists through the regulatory process would “conflict” with the legislature’s right to enact and put limits on scope-of-practice laws.

The psychologists failed to achieve their prescribing goal through the legislative route on several occasions in California, so they decided to try another approach, which they hoped would be spurred by a favorable decision from the attorney general, according to CPA President Renée Binder, M.D.

The attorney general’s determination “is another setback to the ill-advised efforts of the psychologists to gain prescriptive privileges without receiving the education and training that come with graduating from medical school,” Binder told Psychiatric News.

Many of the conclusions that Lockyer arrived at were consistent with arguments made by Daniel Willick, the CPA’s chief counsel. Willick’s letter to the attorney general and assistant attorney general, which he sent in February 2002, also pointed out that federal courts have generally concurred that the states’ ability to regulate the professions is protected from constitutional challenges. The CPA learned of the attorney general’s assessment through the California Medical Association.

Willick also included a comprehensive argument explaining why the California legislature made the right decision when it decided that allowing psychologists to prescribe would not be in the best interest of patients with mental illness. Willick focused on the substantial differences in education, training, and experience between psychiatrists and psychologists.

The attorney general came to the same conclusions. ▪