Anyone seeking to join a regulated profession must satisfy certain requirements imposed by an administrative agency in order to obtain a license, and must abide by prescribed rules of conduct once a license is achieved. Licensees and applicants for licenses sometimes disagree with the applicable standards for obtaining professional certification, and sometimes believe that others in the profession are not conforming to fundamental principles upon which the profession is based.

Courts in California and elsewhere recently have decided three varied and interesting cases in which licensees or applicants for licenses have challenged professional certification requirements or attempted to enforce professional standards upon others.

In the first case, Thorburn v. Dept. of Corrections, 66 Cal.App.4th 1284 (1998), thirteen physicians licensed in California sued parties involved in the implementation of death sentences in California prisons. In particular, the defendants included a number of John Does who were described as physicians on the San Quentin medical staff who participate in executions. The plaintiffs accused these doctors of violating the general prohibition against “unprofessional conduct” found in Business and Professions Code § 2234. They demanded an injunction pursuant to Business and Professions Code § 2311, which allows ten or more physicians to seek to restrain unprofessional conduct.

The Superior Court sustained a demurrer without leave to amend the complaint. In the Court of Appeal, the physicians sought a remand to allow evidence on whether participation in lethal injections comports with the rules of medical ethics. However, the Court of Appeal affirmed, declaring that “as a matter of law, and regardless of any evidence appellants may wish to present, physician participation in executions is not ‘unprofessional conduct.’”

The court justified this categorical conclusion by rejecting as “dicta” the statement in Shea v. Board of Medical Examiners, 81 Cal.App.3d 564 (1978), that “unprofessional conduct” includes “conduct which breaches the rules or ethical code of a profession, or conduct which is unbecoming a member in good standing of a profession.” The Thorburn court ruled instead that “unprofessional conduct” must “relate to conduct which indicates an unfitness to practice medicine,” which in turn “must be understood by reference to the qualifications established by the State of California for licensure as a physician and surgeon, and the types of conduct which the Legislature and the courts have defined as grounds for discipline or loss of the professional license.” Since the state legislature has authorized physicians to perform lethal injections, that conduct cannot be deemed unprofessional.

Two conflicting policy concerns dominated this decision, although they received little express mention. First, the court did not allude at all to the obvious fact that barring physicians from the execution process would make executions impossible, at least until new procedures are established.

Second, the court acknowledged only in footnotes the vast body of medical literature addressing the ethical issues raised when physicians assist in the execution of prisoners. The court cited the opening words of the Hippocratic Oath (“First, do no harm”) and many other impressive sources holding that participating in an execution violates a physician’s duty, but it dismissed these doctrines as irrelevant to the notion of “unprofessional conduct” because they were not codified by the legislature.

As a result, the court has limited the traditional self-regulating nature of the medical profession (and, by analogy, similar professions such as law), and has taken a bold step toward removing from the sphere of professional discipline any conduct not specifically barred by the legislature but contrary to customary prohibitions understood by all members of the profession. In doing so, the court has violated a series of rulings by California courts expressly recognizing and enforcing such uncodified restrictions.

For example, in Vermont & 110th Medical Arts Pharmacy v. Board of Pharmacy, 125 Cal.App.3d 19 (1981), the Board revoked the licenses of a group of pharmacists who had filled thousands of facially-valid but extremely suspicious prescriptions for drugs commonly sold on the black market. The pharmacists argued there was no regulation prohibiting the processing of dubious prescriptions so long as they are valid on their face. While the parties quibbled over whether the offense was forbidden by statute, the court held the pharmacists bound by the principles of “professional responsibility,” whether codified or not: “More importantly, . . . such prostitutors of their profession will not be heard to explain their dereliction by the juvenile-like complaint ‘Nobody told me it was wrong.’ A true professional does not have to be told such things.” Now, under the Thorburn ruling, it appears that professionals do have to be told.

Lange-Kessler v. Dept. of Education of State of New York, 109 F.3d 137 (2d Cir. 1997), involved a very different licensing issue within the health care field. Lange-Kessler was a “direct-entry midwife,” which is a midwife who enters the profession through apprenticeship with other midwives rather than through formal education. She and several of her patients challenged the rationality of New York’s Professional Midwifery Practice Act (Education Law §§ 6950-6958), which essentially bars direct-entry midwives from practicing. The parties presented conflicting evidence regarding whether direct-entry midwives are qualified to handle complicated births.

The court recognized that the right to pursue the profession of one’s choice is a protected property interest, and that restrictions on this right imposed by the state must have a rational basis. In other words, the plaintiff must show that “the legislative facts upon which the statute is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” The state is not required to show that the facts underlying the law are true, and will prevail if “it might be thought that enacting the statute was a rational way to further a legitimate interest.”

The subjectivity and deference inherent in this familiar test doomed the plaintiffs’ challenge. The court acknowledged the legitimate interest of the state in protecting the health of mothers and infants. In light of the data presented by the state regarding the inability of direct-entry midwives to cope with certain obstetric complications, the court was compelled to find that the legislature could reasonably have believed that the statute would further the state’s interest in healthy births. The factual dispute raised by the plaintiffs’ contrary evidence was irrelevant, since the only question was whether the legislature could rationally have believed its version of the facts. Whether the legislature had actually considered the information submitted to the court on behalf of the statute was equally irrelevant; the issue was what the legislature could have thought, rather than what it really thought.

A similar issue arose in Grimes v. State Dept. of Social Services, 70 Cal.App.4th 1065 (1999), but with a different result. Grimes is a woman suffering from serious disabilities. She was residing at a licensed community care facility, but found it unsatisfactory for her needs. A family with whom she had formed a very close friendship offered to let her move in with them and to help her with her activities in return for a contribution for room and board. Grimes accepted the offer and was very happy until the department cited the family for operating an unlicensed care facility and threatened to impose a fine of $200 per day. The family determined it could not obtain a license without extensive remodeling of their home, so Grimes moved into a more expensive but less suitable licensed facility.

The department recognized an exemption from the licensing requirement for disabled persons residing with blood relatives. Although it conceded Grimes’ friends had provided “a loving family environment” and “classic care and supervision,” the department refused to extend the exemption to them because they were not related to her by blood. The Superior Court confirmed the department’s determination because the existence of the necessary family-like setting is difficult to verify in the absence of a blood relationship.

The Court of Appeal reversed, noting that Health & Safety Code § 1568.03(c)(3) specifically authorizes an exemption for disabled persons residing with close friends. The court held it was an abuse of discretion for the department to cite the difficulty of evaluating a relationship among friends as a justification for categorically denying non-familial exemptions.

Lange-Kessler and Grimes illustrate a common distinction in challenges to administrative policies. When suspect classifications are not involved, facial challenges to statutes and regulations almost always fail in the face of the highly-deferential “rational basis” test. Challenges to the application of a statute based upon an asserted abuse of discretion give a sympathetic court far more ability to rule in the plaintiff’s favor.