Dennis Saccuzzo, PhD, J.D.

Continuing Education Information

To meet entry level requirements for independent professional practice, mental health professionals are required to obtain relevant supervised experience under an experienced professional.1 For example, clinical psychologists in training programs approved by the American Psychological Association (APA) obtain a minimum of 400 supervised practicum hours of training (number of hours no longer specified in current accreditation standards) and a minimum of 1,500 hours (now specified as one year of full-time training) of pre-doctoral internship training to qualify for a doctoral degree.2 In addition, many states require an additional minimum of 1,500 hours of postdoctoral supervised training before the psychologist is eligible for licensure.3 Despite the necessity for extensive supervision of mental health practitioners, there have been relatively few lawsuits arising from the failure to supervise adequately mental health assistants, unlicensed practitioners and students.4 The relative lack of litigation in this area may be because attorneys, due to relatively little formal clinical training, may fail to notice the possibility of training related injuries.5 Nevertheless, the failure to supervise adequately may result in liability under a variety of legal theories.6

The purpose of this National Register Legal Update is to explore the various theories of legal liability under which supervisors and mental health professionals may be held. The starting point for assessing liability can be found in state licensing laws. In addition, there are a variety of legal theories of liability. In the subsequent National Register Legal Update we examine the underlying ethical basis for such liability. The practice of supervision is also guided by a variety of ethical documents and a rapidly growing professional literature. From an analysis of the basis of liability and the relevant literature, guidelines for a general standard of care are proposed. Finally, reform in this area must include methods for disseminating and promulgating appropriate standards of care.


In evaluating liability and defining a standard of care for supervision, it is useful to look at legislative mandates as well as relevant judicial decisions. Three major issues are: Who is qualified to supervise? What is supervision? Who is in need of supervision? With fifty different states and the District of Columbia each with its own regulations, there are many approaches to these issues. However, certain important patterns can be discerned. An analysis of the pertinent statutory schemes in Delaware, California, and Ohio illustrate these patterns.


For most states, a qualified supervisor is one who has practiced under a relevant license in the state. In Delaware, for example, the state licensing law for psychologists7 defines “supervising psychologist” as someone who has been licensed for two years.8 As in most states, Delaware defines supervision in terms of face-to-face consultation between the supervisor and supervisee (i.e., psychological assistant).9 In addition, Delaware law holds the supervisor responsible for ensuring that the “quality of the service rendered by the psychological assistant [is] consistent with the person’s education, training, and experience.”10 Thus, the supervisor is required to prevent the supervisee from functioning beyond his or her competence.

The requirement of ensuring that the supervisee does not practice beyond his or her competence has important implications. Implicit in this requirement is that the supervisor is familiar with the supervisee’s qualifications, training, and experience. Keeping supervisees within their level of competence also requires ongoing assessment of that competency as well as active monitoring. Further, to meet this responsibility, the supervisor must have sufficient control over the supervisee.

Failure to meet the standards of supervision may result in revocation of the supervisor’s license. In Masterson v. Board of Examiners of Psychologists,11 a Delaware licensed psychologist, Jill Masterson, appealed the decisionof the Board of Examiners of Psychologists to revoke her license to practice psychology. Masterson hadbeen supervising Susan Wellington, a psychological assistant. Wellington, in turn, was counseling a womanwith whom she had a social relationship and a common circle of friends. Such dual relationships are unethical,and in Delaware, the ethical standards for psychologists are specifically referenced in the Delaware law.12

The Delaware Psychology Board held that Masterson failed to monitor and/or control relationships involving her supervisee, Susan Wellington. It found that Masterson failed to properly supervise Wellington, such as to prevent the exploitation of her professional relationships. In affirming the Board’s decision to revoke Masterson’s license, the Delaware Appellate Court emphasized the supervisor’s responsibility for controlling the actions of the supervisee.13

Depending on the jurisdiction, violation of a statute may constitute negligence per se,14 in which negligence is presumed and cannot be rebutted.15 In jurisdictions such as California, violation of a statute creates only a rebuttable presumption of negligence.16 Thus, given a violation of the licensing statute in California, the burden shifts to the supervisor to prove that he or she was not negligent.


In California, the requirements of primary supervisors are codified in Section 1387 of the Code of Regulations.17 A qualified “primary supervisor” must be a licensed psychologist or board certified psychiatrist, with a minimum of three years of professional experience following licensure.18 A supervisor may not have a family or interpersonal relationship with the supervisee.19 In addition, a licensee may not supervise a supervisee who is, or has been, a psychotherapy client of the supervisor.20 Finally, a qualified primary supervisor must be engaged in the same work setting a minimum of 50% percent of the time, and at the same time as the person being supervised. 21 Presumably, this on site requirement will ensure that the supervisor has ample opportunity to monitor and control the work of the supervisee.

California law requires all supervisees to maintain written weekly logs of all hours of supervised experience. 22 California law further requires the supervisee to obtain the supervisor’s signature on the log, and to record the specific work setting in which the work took place, dates, the nature of the interaction (e.g., individual, group, facetoface), and the professional services or work performed.23 As in Delaware, a psychologist’s license may be revoked for inadequate supervision.24

An issue that has been a source of litigation concerns whether a psychological assistant can be considered an agent of a treating psychologist. In Bergenstal v. Workers’ Compensation Appeals Board,25 a licensed psychologist, Karl Bergenstal, conducted psychological testing and clinical evaluation of an injured worker. The psychologist then referred the worker to his psychological assistant to perform psychotherapy. Dr. Bergenstal argued that he complied with California’s statutory requirements for supervision because he formulated a treatment plan, worked solely with the patient on a number of occasions, interpreted test results, and used all this information to guide the supervised psychological assistant. Further, he was located on the premises and met on a weekly basis with the assistant to discuss treatment plans.

At issue was the defendant’s failure to reimburse for services provided by the psychological assistant. The court found that the assistant was qualified to treat the applicant pursuant to Section 2913 of the Business and Professions Code26 and opined that the supervisory activities described by Dr. Bergenstal met that standard. 27 The court held that the supervisor was eligible for reimbursement because the assistant can be considered an agent of the treating psychologist.28

As is the case in Delaware, the California supervisor has an implicit responsibility to monitor and control the supervisee. In California, the supervisor is responsible for ensuring that “the extent, kind, and quality of the psychological services he or she performed are consistent with his or her training and experience and. . . responsible for his or her compliance with the regulations of the Board of Psychology.”29 Moreover, while no case has expressly stated the standard of care of a psychological assistant, the Board of Psychology has generally held assistants to the same standard of care as their supervisors in terms of quality of patient care.30

The disclosure requirement is a critical feature of California law. Prior to the rendering of services by the assistant, the supervisor is required to inform each patient in writing that the assistant is unlicensed and supervised as an employee of the supervisor.31 Thus, by statute, supervisors of unlicensed psychologists in California are considered employers of the supervisees.

In addition to the psychology licensing law, which is regulated by the Board of Psychology under the Board of Medical Quality Assurance, California regulates marriage and family therapists (MFTs) through the Board of Behavioral Science Examiners.32 As with psychologists, MFTs are required by statute to obtain a minimum of 3,000 hours of supervised experience.33

However, the statutory supervision requirements for MFTs are somewhat different from those for psychologists. This difference helps to illustrate the variability in various statutory schemes. Requirements for MFT supervisors are more precise. Supervisors must have practiced psychotherapy for at least two years within the last five year period immediately preceding any supervision.34 To qualify as having practiced psychotherapy, the supervisor must have averaged at least five patient contact hours per week.35 Moreover, the supervisor must affirm that he or she is competent to supervise, i.e., has sufficient education, training or experience in the area of clinical supervision to supervise competently.36 The requirement of affirming competence to supervise is laudable, but not widely found in many statutory schemes.

Another interesting and innovative feature is the requirement that the supervisor inform the supervisee in writing, prior to the commencement of supervision, a signed responsibility statement for MFT interns.37 This disclosure requirement is an important step toward an informed consent process between supervisor and supervisee. Finally, the MFT rules on the nature of the supervisor-supervisee interaction are more narrowly defined than those for psychologists. For example, the supervisor is required to provide either one hour of individual (one-on-one) supervision or two hours of group supervision each week.38


The Ohio statutory scheme requires the supervisor to monitor the supervisee through a written treatment plan reviewed and signed by the supervisor.39 The Ohio statute also contains a general clause that requires the supervisor to exercise reasonable judgment, “consistent with the standards of the profession of psychology, when providing mental health worker supervision.”40

Steckler v. Ohio State Board of Psychology41 provides some insight into the Ohio courts’ interpretation of the “standards of the profession.” In Steckler, a licensed psychologist agreed to act as supervisor for an unlicensed counselor. The psychologist’s failure to meet with any of the unlicensed counselor’s clients was sufficient to establish that he violated the rules of professional conduct as a supervisor in psychology.

The facts showed that Steckler was paid an hourly fee for case review and test interpretation. However, he did not personally consult on all of the unlicensed counselor’s patients, and never actually visited the unlicensed counselor’s office. Nevertheless, Steckler signed insurance forms that stated services were to be rendered by the signatory or under his immediate supervision.

In reaching its holding, the court in Steckler cited the Ohio Code by quoting that the supervisor shall have “full direction, control, and responsibility for client welfare.”42 The court held that because Steckler never met with his supervisee’s clients, he did not have full control over their welfare.43 Thus, Steckler was found in violation of the rules of professional conduct, and the court affirmed a decision by the Board of Psychology to suspend his license for 60 days.

The court’s decision is noteworthy. Steckler was in violation of a statute; thus, any damages that can be proximately linked to his supervisory activities may be considered negligent per se, or create a rebuttal presumption of negligence.44

Other Statutory Schemes

Examination of state licensing laws makes it clear that supervisors are statutorily liable not only for their own negligence in failing to supervise adequately, but also for the actions of supervisees. The New Hampshire Code articulates this standard and leaves little room for interpretation: “The supervisor shall assume professional responsibility for the psychological assistant in a written agreement on record with the board. If the supervisor is a private practitioner, he must assume both professional and legal responsibility in the agreement.”45


In addition to statutory liability, supervisors, as well as any employee of a psychologist, whether supervised or not, can be liable under any one of several negligence theories. The theories can be divided into two main types, (1) vicarious liability in which the supervisor or employer is held liable for actions of the supervisee regardless of any fault on the part of the supervisor; and (2) direct liability in which the supervisor is held directly liable for his or her own negligence, such as negligent supervision and hiring.46

Vicarious Liability

Respondeat Superior: A supervisor may be held vicariously liable under the doctrine of respondeat superior, which holds that one who occupies a position of authority or control over another may be held legally liable for damages caused by the subordinate.47 In terms of clinical supervision, the doctrine of respondeat superior means that supervisors can be held legally liable for actions of supervisees.48 This liability attaches whether or not the supervisor breached a duty.49 Supervisors may be held liable under this doctrine as either the “master,” 50 or as an employer.51

Application of the respondeat superior doctrine varies widely across jurisdictions.52 In the context of an employer-employee relationship, three elements must be shown to hold the employer (principal) liable. First, the existence of an employeremployee relationship must be established.53 The existence of such a relationship is usually demonstrated by such factors as: selection and engagement of the employee, the power of dismissal, and the power to control the employee’s conduct.54

The second element that must be established is the act which injured the patient must be within the supervisee’s scope of employment.55 The scope of employment within the context of the supervisory relationship is not clearly defined. Adrian Tabangay has emphasized the right to control the supervisee as being the most critical factor.56

M.Janelle Disney and Anthony M. Stephens note five factors used by the courts to determine whether the supervisee’s acts fall within the scope of employment: (1) the supervisor’s power to control the supervisee; (2) whether the supervisee had a duty to perform the act; (3) the time, place, and purpose of the act; (4) the motivation of the supervisee in committing the act; and (5) whether the supervisor could have reasonably expected that the supervisee would commit the act.57

In general, and consistent with these five factors, courts tend to interpret scope of employment broadly. In fact, despite variations across jurisdictions, some courts have gone so far as to define a therapist’s sexual relations with a client as within the scope of employment. Thus, a supervisor has been held liable for sexual misconduct of a supervisee in the absence of any wrongdoing on the part of the supervisor.

In Simmons v. United States,58 a case appealed from the western district of Washington, a woman with a history of emotional abuse was seen by a social worker in an outpatient setting. The social worker engaged in inappropriate behaviors such as kissing and touching.59 This behavior escalated to sexual intercourse on an out of town trip. The patient subsequently developed severe psychological problems as a result of the sexual relationship. 60 The court found it immaterial that the sexual misconduct occurred outside of the usual time and place of the therapy relationship because the sexual relations were initiated during the therapy sessions.61

The court held that the sexual acts were within the course of employment because the wrongful conduct arose out of the therapy relationship.62 Through the doctrine of respondeat superior, the employer was held liable for the social worker’s malpractice.63

An employer was also held vicariously liable for sexual misconduct by an employee therapist under the doctrine of respondeat superior in Doe v. Samaritan Counseling Center.64 In Doe, a pastoral counselor kissed and fondled a woman who had sought spiritual and emotional counseling. Shortly after the patient canceled the therapy sessions with the counselor, the patient met him and the two had sexual intercourse.

The Alaska Supreme Court held that although the therapy sessions had been canceled, the sexual misconduct occurred during the course of the therapist’s employment.65 The counselor’s employer was held liable under the doctrine of respondeat superior.66

While not all jurisdictions consider therapist sex with patients within the scope of employment,67 the risk does exist. Employers in general, and supervisors in particular, who may also be statutory employers of their supervisees, are subject to a broad definition of scope of employment. In fact, when a student or unlicensed therapist is treating a patient under the supervision of a licensed practitioner, it is difficult to imagine any conduct that would not be considered within the scope of employment.68

The third and final element needed to establish liability on the basis of the respondeat superior doctrine is that the supervisee’s patient must prove that he or she was in fact injured.69 Thus, the patient must prove all of the elements of negligence.70

There is little doubt that the supervisor may be liable where the actions of an unlicensed or student supervisee negligently result in damages to a patient. In the case of sexual misconduct, the supervisor may be liable even where the misconduct occurs outside of the therapy office or after therapy has been terminated.71 To reduce the risks of liability, supervisors must carefully monitor the therapy process, and above all, maintain control of the case.72

The Borrowed Servant Rule: A problem frequently arises in determining who is the supervisor. For example, in university training programs for psychologists, students in training are often placed in hospitals or community mental health facilities. The student may then be under the general direction and supervision of professors at the university as well as under the licensed staff of the hospital or community facility. Under these circumstances, supervisory liability may be determined under the borrowed servant rule.73 In the context of universities and clinical training programs who place their students in mental health facilities outside of the university structure, the university (or university supervisor) would be considered the general employer and the placement facility (or on site licensed practitioner) would be known as the special employer.74

As with the doctrine of respondeat superior in general, a critical factor in determining liability is who had control of the supervisee at the time of the negligent act. For example, in McConnell v. William75 the court found:

In determining whether a person is the servant of another, the essential test is whether he is subject to the latter’s control or right of control with regard not only to the work to be done but also to the manner of performing it . . . the true criterion is the existence of the power to control the employee at the time of the commission of the negligent act.76

In evaluating whether either the general or special employer agreed to assume liability, courts will examine any affiliation agreements.77 Such agreements may be useful to both the university and the placement facility, in that they may avoid subsequent disputes over liability for negligent acts of the supervisee. The parties can also control the risks and distribute them in advance through the agreements. Absent such an agreement, the university may be presumed liable.78

Enterprise Liability: Another way a supervisor may be held liable for negligent acts of supervisees is through an enterprise liability theory. In this theory, the costs of compensating injured patients are balanced against the benefits derived by the supervisee/employer; damages are viewed as part of the cost of doing business. For example, supervisors commonly bill for the patient contact hours of supervisees. All income above the supervisee’s salary (if any) and overhead are profits of the supervisor. Given that the supervisor stands to make a profit, he or she should be willing to bear the risk of damages to patients.

Enterprise liability theory focuses on the foreseeability of a supervisee’s actions in view of the nature of the supervisee’s duties. Liability may attach where there is a factual determination that the supervisee’s acts are a foreseeable risk of the enterprise.79 In the context of psychotherapy supervision, some courts have held that sexual misconduct is a foreseeable risk of therapeutic relationships.80

In sum, supervisors/employers may be held vicariously liable under a variety of legal theories. Liability may attach regardless of how careful the supervisor was. To minimize risks, supervisors are advised to maintain strict control. On the other hand, attorneys need to be alert to the possibility of supervisor/employer liability when a client is injured by a student or unlicensed therapist under supervision. Matters may become complicated where university students are placed in community settings. Under these conditions, liability may attach under a borrowed servant rule or enterprise liability theory. Universities and the mental health facilities in which students are placed may well be advised to consider affiliation agreements so that duties, liabilities, and responsibilities are specified in advance. On the other hand, attorneys seeking damages from supervisors/employers are advised to carefully examine any affiliation agreements that may exist.

Direct Liability: Negligent Supervision

In addition to vicarious liability, supervisors may be directly liable for their own negligent acts. In the context of supervision of students and unlicensed practitioners, such negligence is usually in the form of negligent supervision. To establish direct liability for negligent supervision, the patient/plaintiff must demonstrate a direct link between the actions of the supervisor and the injuries. Thus, liability is not based on the actions of the supervisee; it is based on the supervisor’s own negligence.81 Given that liability is based on the supervisor’s negligence, it is possible that liability may attach to the supervisor even where a plaintiff cannot establish all the elements of negligence linking the supervisee’s acts to the injury.82

The basis for supervisor liability for negligent supervision can be found in Section 213 of the Restatement of Agency,83 which provides: “A person conducting an activity through servants or other agents is subject to liability for harms resulting from his conduct if he is negligent or reckless . . . in the supervision of the activity.”84

In Andrews v. United States,85 a case appealed from South Carolinathe court did not find respondeat superior liability where under the guise of providing counseling, a physician’s assistant began to touch, kiss, and attempt to undress a plaintiff, and eventually had sexual intercourse with her.86 The court held that the assistant’s conduct was not motivated to serve the employer87 and, thus, was beyond the scope of employment.88 However, the court did find the employer directly liable for negligent supervision.89 Thus, the supervisor was held liable in addition to the assistant, for failing to provide proper supervision of the abusing supervisee.90

Similarly, in Simmons v. United States91 where the court did find the sexual misconduct of a supervised therapist to be within the scope of employment, the role of proper supervision was emphasized. The Simmons court found that a significant portion of the plaintiff’s emotional damages could have been prevented with proper supervision of the abusing therapist.92

Attempts by the supervisor to abrogate responsibility by claiming he or she did not do the work are unlikely to succeed, as in McCullough v. Hutzel Hospital.93 InMcCullough, the plaintiffs brought a medical malpractice action following alleged negligence in a tubal ligation operation performed by a resident in training under the supervision and training of defendants who were specialists. The defendant’s supervisors’ defense was that because they did not actually perform the surgery, they were merely responsible for supervising the resident. Thus, they were not practicing their specialty and should not be held to a specialists’ standard of care.94 The court strongly rejected the supervisors’ argument and held:

Even though the . . . procedure was actually performed by a resident, [the supervisors] were under a duty to see that it was performed properly. It is their skill and training as specialists which fits them for that task, and their advanced learning which enables them to judge the competency of the resident’s performance. Their failure to take reasonable care in ascertaining that the surgery was competently performed renders them liable for the resulting damages.95

Notice the court’s emphasis on proper monitoring (“duty to see that it was performed properly”) and ascertaining the competence of the supervisee. Similar reasoning has been applied to psychological supervisors as well. In Masterson v. Board of Examiners of Psychologists,96 a psychologist’s license was revoked for failure to “monitor and control” the supervisee.97 In Steckler v. Ohio State Board of Psychology,98 a supervising psychologist’s license was suspended for failure to exercise “full direction, control, and responsibility” for client welfare.99 While the number of cases involving psychological supervisors is relatively small,100 this situation may change as attorneys become more aware of the liability of supervisors. Arguments for liability can then be analogized from cases in medical settings.

An important case that provides some guidance in assessing when liability might attach is Mozingo v. Pitt County Memorial Hospital.101 In Mozingo, a woman was admitted to a teaching hospital for the delivery of hersecond child. She was treated by residents who were being supervised by a private “on call” medical group.The supervisors were contracted to provide supervision by telephone from their homes. The defendant supervisorlived about two miles from the hospital. The supervisee began experiencing difficulty in Mozingo’s deliveryin the early evening. The supervisor was immediately informed and, upon receiving the call, immediatelywent to the hospital. Unfortunately, he did not arrive in time to prevent severe injury to the newborn. TheMozingo family sued the supervisor for failing to meet acceptable standards of supervision.102

The court confronted two major issues of relevance to supervisors of mental health practitioners. First, did the supervisor have a direct duty of care arising from a patient-physician relationship? Second, did defendant’s supervision meet the standard of care for applicable supervision?

The court’s analysis began with the rule that, “[w]hen a physician and a patient enter into a consensual physicianpatient relationship . . . a duty arises requiring the physician to conform to the statutory standard of care.”103 Further, “[w]hether the defendant and Mozingo or Mozingo, Jr. established a physician-patient relationship depends on whether the defendant accepted Mozingo or Mozingo, Jr. as patients and undertook to treat them.104 In this case, the court found no evidence of a relationship between the on call supervisor and Mozingo because the supervisor “never accepted Mozingo or Mozingo, Jr. as patients or undertook to treat them, and therefore there was no consensual relationship between [them]. . .”105

In contrast, the court found that where the defendant’s supervisory duties may be expected to affect the interests of the patients receiving care from the supervisee, tort law will impose a duty to act in a way that patients will not be injured by the supervisee. In order to assess the supervisor’s duty, the court recognized six factors: (1) the extent to which the transaction was intended to affect the other person; (2) the foreseeability of harm to him; (3) the degree of certainty that he suffered the injury; (4) the closeness of the connection between the defendant’s conduct and the injury; (5) the moral blame attached to such conduct; and (6) the policy of preventing future harm.106

Mozingo has important implications for supervisors of students and unlicensed practitioners in mental health settings. First, because supervisors in mental health settings often see the patient and have some direct responsibility for patient care,107 they may be held directly liable as primary therapists. The assumption would be that when the supervisor saw the patient as part of the supervisory process, he or she undertook to treat that patient. Further, the six factors accepted by the court provide some guidance on evaluating the supervisor’s potential liability. It is noteworthy that the court in Mozingo did find that the potential “negative consequences for the community, such as increased medical costs,” were not outweighed by the policy of preventing harm to patients.108

A final example shows the emphasis given by the courts on the supervisor’s duty to monitor the supervisee’s treatment. In Powers v. United States109 a supervising physician left the post-operative care of the plaintiff to hospital residents. The patient subsequently experienced complications. The court found the supervisor negligent in both his direct care as well as in the supervision of the residents.110


  1. See Steven R. Smith, Liability and Mental Health Services, 64 AM. J. ORTHOPSYCHIATRY 234, 240 (1994).
    2. See APA (1979) Criteria for Accreditation: Doctoral Training Programs and Internships in Professional Psychology and APA (2000) Guidelines and
    Principles for Accreditation of Programs in Professional Psychology.
    3. See CAL. CODE REGS. tit. 16, § 1387 (e)-(f) (1997). California requires two years of satisfactory supervised profes-sional experience, one of which
    must be completed after being awarded a doctoral degree. A year of professional experience is defined as not less than 1,500 hours. CAL. CODE REGS.
    tit. 16, § 1387 (e)-(f) (1997).
    note, there are few reported legal cases involving injuries suffered as a result of poor treatment by students.
    5. See id. at 27.
    6. See Steven R. Smith, The Legal Liabilities of Mental Health Institutions, 21 ADMIN. POL’Y IN MENTAL HEALTH 379, 381 (1994).
    7. See DEL. CODE ANN. tit. 24, §§ 3501-3520 (1996).
    8 .Id. § 3502(7) (1996).
    9. See id. § 3502(8). Note that nearly all state laws governing the practice of psychology require face-to-face supervi-sion. Further note, however, that
    few state laws specify the standard which the supervisor is to use to monitor the supervi-see.
    .Masterson v. Board of Examiners of Psychologists, No. 95A-03-011, 1995 LEXIS 589 (Del. Super. Ct. Dec. 29, 1995).
    .Delaware law provides:
    10. Id.
    11. Masterson v. Board of Examiners of Psychologists, No. 95A-03-011, 1995 LEXIS 589 (Del. Super. Ct. Dec. 29, 1995).
    12 .Delaware law provides:
    (c) Psychologists who employ or supervise other professionals or professionals in training accept the obliga-tion to facilitate the further professional development
    of these individuals. They provide appropriate working conditions, timely evaluations, constructive consultation, and experience opportunities .
    d) Psychologists do not exploit their professional relationships with clients, supervisees, students, employees, or research par-ticipants sexually or otherwise
    . . . .Masterson, 1995 LEXIS 589, at *15, citing AM. PSYCHOLOGICAL ASS’N., ETHICAL STANDARDS FOR PSYCHOLOGISTS (1977).
    13. The court stated:
    Nothing in this chapter shall be construed to prevent psychological assistants from rendering psychological services, other than diagnosis and formulation
    of a treatment plan, under the direct supervision and control of a licensed psychologist pursuant to the rules and regulations adopted by the
    Board; provided however, that such psychological assistants shall have obtained educational training of at least a master’s degree in psychology or
    related field and shall render such psychological services from the office of the supervising psychologist who shall be responsible for the services
    rendered by the psychological assistant acting under his direction and control . . . .
    14. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 36, at 229-31 (5th ed. 1984 & Supp. 1988).
    15. See id.
    16. See Salinero v. Pon, 177 Cal. Rptr. 204, 211 (Cal. Ct. App. 1981) (construing CAL. EVID. CODE § 669 (DEERING 1996)).
    17. CAL. CODE REGS. tit. 16, § 1387 (1997).
    18. Id. See, e.g., Medical Board of California, Regulatory Agency Action, 15 CAL. REG. L. REP. 59 (1995). At its No-vember 5, 1995 meeting in
    Sacramento, California, the Board of Psychology (“BOP”), a state regulatory agency for psy-chologists, created an ad hoc committee to analyze the issue
    of statutory qualifications for supervisors, and whether a train-ing program for supervisors would ensure higher quality supervised experience than the
    present rigid three year requirement. Effective January 1 2001, § 1387.1 was modified and did not include the 3-year requirement for supervision of
    interns, ex-empt employment settings, and registered psychologists. The requirement remained in force for supervision of psycho-logical assistants. In
    addition, § 1387.1 added the requirement that primary supervisors shall certify, under penalty of per-jury, that they are qualified to supervise trainees
    under § 1387.1(a) and have completed at least 6 hours of formal training and supervision. To be qualified under § 1387.1(a), primary supervisors must
    possess a valid, active license free of any formal disciplinary action.
    19. See CAL. CODE REGS. tit. 16, § 1387.3 (1997). The term interpersonal relationship is not defined further. Appar-ently, the BOP can make this
    determination on a case by case basis. However, when evaluating the qualifications of any psychologist, whether licensed or in training, the prudent
    attorney can inquire into the qualifications of each supervisor, and whether there was an undisclosed interpersonal relationship between supervisor and
    20. See id. § 1387(s).
    21. See id. § 1387(b). Effective January 1 2001, § 1387 defines a supervised professional experience (SPE) as follows: . . . an organized program that
    consists of a planned, structured and administered sequence of professionally supervised comprehensive training experiences. .SPE shall have a logical
    training sequence that builds upon the skills and competencies of trainees to prepare them for the independent practice of psychology.
    22. See id. § 1387(t).
    23. See id. § 1387 (t)(1)-(7).
    24. See Report of Disciplinary Actions, BOP Update (California Department Of Consumer Affairs Board Of Psychol-ogy), Oct. 1995, at 11. In its report
    of disciplinary actions for January 1, 1995 - August 1, 1995, out of twenty-seven revocations, one was for inadequate supervision of a psychological assistant.
    For more information, go to
    25. Bergenstal v. Workers’ Compensation Appeals Bd., 53 Cal. Rptr. 2d 266 (Cal. Ct. App. 1996).
    26. Section 2913 provides:
    A person other than a licensed psychologist may be employed by a licensed psychologist . . . to perform lim-ited psychological functions provided
    that all of the following apply: (a) The person is termed a “psychological assistant.” (b) The person . . . has completed a doctoral degree which qualifies
    for licensure under 2914 . . . (c) The person is at all times under the immediate supervision, as defined in regulations adopted by the board, of a licensed
    psychologist, or board certified psychiatrist, who shall be responsible for insuring that the extent, kind, and quality of the psychological services . . . she
    performs are consistent with . . . her training and experience and be responsible for . . . her compliance with this chapter and regulations duly adopted
    hereunder . . . (d) The licensed psychologist . . . has registered the psychological assistant with the board . . . .
    Id. at 269 n.3 (citing CAL. BUS. & PROF. CODE § 2913) (Deering 1996) (noting that becoming a registered psychological assistant could be one way of
    obtaining the two years of clinical experience which satisfies one of the prerequisites to be-ing considered a psychologist under CAL. LAB. CODE §
    27. See id. at 271.
    28. See id. at 270.
    29. CAL. BUS. & PROF. CODE § 2913(c) (Deering 1996).
    30. See O. BRANDT CAUDILL & KENNETH S. POPE, LAW AND MENTAL HEALTH PROFESSIONALS 68 (1995). See also People v. Stanley, 681 P.2d
    302 (Cal. 1984) (holding that a psychological assistant was qualified as an expert to testify on Rape Trauma Syndrome, over the objection of a criminal
    31. See CAL. CODE REGS. tit. 16, § 1391.6(b) (1997). It is noteworthy that the supervisor is the statutory employer of the supervisee.
    32. See Cal. BUS. & PROF. CODE § 4980.08(a) (Deering 2001). Effective July 1 1999, the title marriage, family and child counselor (MFCC) was
    renamed marriage and family therapist (MFT).
    33. See id. § 4980.43.
    34. See CAL. CODE REGS. tit. 16, § 1833.1(a)(5).
    35. See id.
    36. See id. § 1833.1(a)(6). In addition, § 1833.1(a)(6)(A) requires supervisors to complete a minimum of 6 hours of supervision training or coursework
    every 2 years.
    37. See id. § 1833.1(b).
    38. CAL. BUS. & PROF. CODE § 1845(b) (Deering 2001). § 1845(b) provides a statutory definition of unprofessional conduct that appears to establish
    a standard for supervision. The statute states that “permitting a trainee or intern under his or her supervision or control to perform or permitting the trainee
    or intern to hold himself or herself out as competent to perform professional services beyond the trainee’s or intern’s level of education, training and/orexperience”
    [is unprofes-sional conduct].
    39. The Ohio scheme outlines the following provisions:
    (A) Requirements for mental health worker supervision. (1) Work done under mental health supervision shall not be represented to any
    party as psychological work. (2) A treatment plan shall be prepared for each recipient of services as part of the initial evaluation and shall be signed
    by the mental health worker delivering the services and the recipient or his/her legal guardian. (3) Within a reasonable time period thereafter, the
    supervising li-censed psychologist shall review the plan and shall either: (a) Sign it as submitted; (b) Require modifications prior to signing it; or (c)
    Refuse to sign it if in his/her professional judgment in conformance with the standards of the profession of psychology it is unsatisfactory or unnecessary.
    (4) A licensed psychologist shall exercise reasonable professional judgment, consistent with the standards of the profession of psychology, when
    provid-ing mental health worker supervision.
    OHIO ADMIN. CODE § 4732-13-04 (1995).
    40. Id. Thus, by statute, the standard of care of supervision in Ohio is “reasonable professional judgment.”
    41. Steckler v. Ohio State Bd. of Psychology, 613 N.E.2d 1070 (Ohio Ct. App. 1992).
    42. Id. at 1073 (citing OHIO ADMIN. CODE § 4732-13-03 (J)(12).
    43. See id. at 1073.
    44. See generally Walker v. Bignell, 301 N.W.2d 447, 454 (Wis. 1981). To meet the elements of negligence per se, the harm inflicted must be the type
    the statute was designed to prevent and the person injured must be within the protected class.
    45. N.H. REV STAT. ANN. § 330-A:16-b(II)(b) (1996).
    46. See Ralph Slovenko, Legal Issues in Psychotherapy Supervision, in PSYCHOTHERAPY SUPERVISION: THEORY, RESEARCH AND PRACTICE
    (Allen K. Hess ed., 1980).
    48. See id.
    49. See Adrian Tabangay, Scope of Employer, Sex and Transference: When is an Employer Liable for Therapist Sexual Relations, 28 J. HEALTH &
    HOSP. L. 108 (1994).
    50. That is, simply on the basis of the supervisor’s authority and control over the supervisee.
    51. Recall that in many states, supervisors are statutorily defined as the supervisee’s employer.
    52. See Linda Mabus Jorgenson et al., Transference of Liability: Employer Liability for Sexual Misconduct by Thera-pists, 60 BROOK. L. REV. 1421,
    1422-23 (1995).
    53. See Darensburg v. Tobey, 887 S.W.2d 84, 88 (Tex. Ct. App. 1994).
    54. See Haight v. Aldridge Electric Co., 575 N.E.2d 243, 252 (Ill. App. Ct. 1991); Hopping v. Louisiana Horticulture Comm’n, 509 So. 2d 751, 755 (La.
    Ct. App. 1987); Clarke County v. State Indus. Ins. System, 724 P.2d 201, 202 (Nev. 1986). A factor that may also be considered is remuneration or
    wages. In the supervisory context, supervisees may or may not be paid. However, they do earn credit toward a degree or licensure, and thus are
    55. See id. Scope of employment is defined as:
    [C]onduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within
    the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the
    servant against another, the use of force is not unexpectable by the master. (2) Conduct of a servant is not within the scope of employment if it is different
    in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a person to serve the master.
    56. Tabangay, supra note 49.
    57. See Disney & STEPHENS, supra note 47, at 16-17.
    58. Simmons v. U.S., 805 F.2d 1363 (9th Cir. 1986).
    59. For a discussion of physical contact in psychotherapy, see Elizabeth A. Holub & Sandra S. Lee, Therapists’ Use of Nonerotic Physical Contact:
    Ethical Concerns, 21 PROF. PSYCHOL.: RES. & PRAC. 226 (1991). See also Kenneth S. Pope et al., The Beliefs and Behaviors of Psychologists as
    Therapists, 42 AM. PSYCHOL. 993 (1987). According to the Pope survey of therapists, kissing a client was considered unquestionably unethical by
    48% of the respondents, and something done un-der only rare circumstances by the next 36%. Only about 2% of the therapists surveyed approved of
    the practice.
    60. See Simmons, 805 F.2d at 1364.
    61. See id. at 1370.
    62. See id.
    63. See id. at 1363.
    64. Doe v. Samaritan Counseling Ctr., 791 P.2d 344 (Alaska 1990).
    65. See id. at 348.
    66. See id. at 344.
    67. See Birkner v. Salt Lake County, 771 P.2d 1053, 1058 (Utah 1989) (holding social worker who engaged in sexual misconduct was not acting within
    the scope of employment); P.S. v. Psychiatric Coverage, Ltd., 887 S.W.2d 622, 622 (Mo. Ct. App. 1994) (holding employer not liable for damages
    resulting from employee psychologist’s sexual relations with a patient).
    68. See Stewart R. Reuter, Professional Liability in Postgraduate Medical Education, 15 J. LEGAL MED. 485, 496 (1994).
    69. See Morris v. Francisco, 708 P.2d 498, 502 (Kan. 1985); Grewe v. Mount Clemens Gen. Hosp. 273 N.W.2d 429, 432 (Mich. 1978); Whitfield v.
    Whittaker Mem’l Hosp., 169 S.E.2d 563, 568 (Va. 1969).
    70. See KEETON ET AL., supra note 14.
    71. See supra text accompanying notes 58-68.
    73. The borrowed servant rule is defined as follows: “A servant directed or permitted by his master to perform services for another may become the
    servant of such other in performing the services. He may become the other’s servant as to some acts and not as to others.” RESTATEMENT (SECOND)
    OF AGENCY § 227 (1958).
    74. In borrowed servant cases, the general employer is considered to be the employer with the ongoing or long term relationship, whereas the special
    employer (sometimes also known as the temporary employer) is the employer for a tem-porary relationship.
    75. McConnell v. Williams, 65 A.2d 243 (Pa. 1949).
    76. Id. at 245 (citing Walters v. Kaufman Dep’t Stores, 235 A.2d 559, 560 (Pa. 1939)); McGrath v. Edward G. Budd Mfg. Co., 36 A.2d 303, 305 (Pa.
    77. These agreements specify the conditions under which students will function in a facility.
    78. As a general employer, the university may be presumed liable via inference:
    [i]n the absence of evidence to the contrary, there is an inference that the actor remains in his general employ-ment so long as, by the service
    rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer
    has permitted a division of control, he has surrendered it.
    RESTATEMENT (SECOND) OF AGENCY § 227 cmt. b (1958).
    79. See Doe v. Samaritan Counseling Ctr., 791 P.2d 344, 348 (Alaska 1990).
    80. See id.
    81. See McCullough v. Hutzel Hosp., 276 N.W.2d 569, 571 n.1 (Mich. App. Ct. 1979) (where the court noted, “[w]e must point out that the defendants’
    liability is not predicted on the negligence of the resident, but upon their own negli-gence in failing to provide adequate supervision”).
    82. See Stewart R. Reuter, Professional Liability in Postgraduate Medical Education: Who Is Liable for Resident Neg-ligence?, 15 J. LEGAL MED.
    485, 517 (1994).
    83. RESTATEMENT (SECOND) OF AGENCY § 213 (1959).
    84. Id.
    85. Andrews v. U.S., 732 F.2d 366 (4th Cir. 1984).
    86. See id. at 367.
    87. The U.S. Government.
    88. See id. at 370.
    89. See id.
    90. See id.
    91. Simmons v. U.S., 805 F.2d 1363 (9th Cir. 1986).
    92. See id. at 1371.
    93. McCullough v. Hutzel Hosp., 276 N.W.2d 569 (Mich. Ct. App. 1979).
    94. See id. at 570.
    95. Id. at 571.
    96. Masterson v. Board of Examiners of Psychologists, No. 95A-03-011, 1995 LEXIS 589 (Del. Super. Ct. Dec. 29, 1995).
    97. Id. at *1.
    98. Steckler v. Ohio State Bd. of Psychologists, 613 N.E.2d 1070 (Ohio Ct. App. 1992).
    99. Id. at 1073.
    100. See SMITH & MEYER, supra note 4.
    101. Mozingo v. Pitt County Mem’l Hosp., 400 S.E.2d 747 (N.C. Ct. App. 1991).
    102. See id. at 747-49.
    103. Id. at 750-51.
    104. Id. at 750.
    105. Id. at 751.
    106. See id. at 752.
    107. See Bergenstal v. Workers’ Compensation Appeals Bd., 53 Cal. Rptr. 2d 266 (Cal. Dist. Ct. App. 1996) (super-visor formulated treatment plan
    and worked solely with the patient on a number of occasions).
    108. Mozingo, 400 S.E.2d at 753.
    109. Powers v. U.S., 589 F. Supp. 1084 (D. Conn. 1984).
    110.The Court found:
    . . . [The supervisor] failed to adequately monitor Powers’ condition and he offered [the supervisee] virtually no personal diagnostic supervision and
    assistance . . . . [The supervising doctor] had ultimate responsibility for Powers . . . and for him to entrust Powers’ care entirely to a first-year orthopedic
    resident at this crucial stage of a very alarming post-surgical condition was a breach of the standard of care.
    Id. at 1101.