Morgan v. Department of Financial & Professional Regulation (388 Ill. App. 3d 633, 2009)

JUSTICE McBRIDE

delivered the opinion of the court:

This is an appeal from an order of the circuit court affirming the revocation of Dr. Russell Morgan’s license to practice clinical psychology by the Illinois Department of Financial and Professional Regulation. For the reasons that follow, we affirm.

I. BACKGROUND

On February 23, 2005, the Illinois Department of Financial and Professional Regulation filed a petition praying for the summary suspension of Dr. Russell Morgan’s clinical psychologist license based upon allegations that he engaged in inappropriate sexual conduct with four of his female patients by touching their breasts and vaginas during treatment sessions. Three of these violations occurred at the Royal Oaks Care Center, a residential facility, in Kewanee, Illinois, with which plaintiff had contracted to provide psychological services to its patients. Because of this conduct, the Department asserted that Dr. Morgan’s continued practice of clinical psychology posed an imminent danger to the public and prayed that his license be temporarily suspended pending proceedings before the Clinical Psychologists Licensing and Disciplinary Board. The record on appeal does not reveal whether plaintiff received notice of this petition.

That same day, the Department also filed an administrative complaint against Dr. Morgan alleging, in part, that he engaged in inappropriate sexual behavior with four female patients. The Department specifically alleged that: (1) on or about October 15, 2004, plaintiff placed his hands under the clothing of an 84-year-old patient named H.L., fondled her breast and digitally penetrated her vagina; (2) in or about December 2004, plaintiff instructed a 56-year-old patient named J.L. to lift up her shirt, sucked on her nipple, and placing his finger upon and in her vagina, digitally stimulated her vaginal area; (3) in or about December 2004, plaintiff instructed a 26-year-old patient named K.T. to lie on her bed and listen to relaxation tapes and while she was complying with these instructions, he reached under her blouse and fondled her breast and reached inside her pants and touched her vagina; and (4) in or about December 2004, plaintiff instructed a 38-year-old patient named S.G.-N. to lie on her bed and listen to relaxation tapes, and while she was complying with these instructions, he reached under her blouse and fondled her breast and reached inside her pants and touched her vagina.

The Department alleged that each act of misconduct violated six separate professional regulations and accordingly charged plaintiff with 24 counts of misconduct relating to those acts, six counts per patient. In doing so, the Department relied on its authority under section 15(7) of the Clinical Psychologist Licensing Act (Licensing Act) (225 ILCS 15/15(7) (West 2004)), which grants it the authority to discipline a psychologist for “[ujnethical, unauthorized, or unprofessional conduct as defined by rule.” In counts I, VII, XIII, and XIX, the Department sought the suspension or revocation of plaintiffs license under section 1400.80(i) of Title 68 of the Illinois Administrative Code (68 Ill. Adm. Code §1400.80(i), amended at 28 Ill. Reg. 358, eff. December 19, 2003), which grants the agency the power to discipline a psychologist for committing “any act of sexual misconduct, sexual abuse or sexual relations” with a client or patient.

The Department also filed charges against plaintiff for violating five specific provisions of the “Ethical Principles of Psychologists and Code of Conduct” (2003) (hereinafter Ethics Code) which the Administrative Code incorporates by reference. 68 Ill. Adm. Code §1400.80(k), as amended at 28 Ill. Reg. 358, eff. December 19, 2003. In counts II, VIII, XIV and XX, the Department alleged that plaintiff’s conduct with the four victims violated section 3.03 of the Ethics Code, which proscribes psychologists from knowingly engaging in “behavior that is harassing or demeaning to persons with whom they interact in their work based on facts such as those persons’ age, gender, gender identity, race, ethnicity, race, culture, national origin, religion, sexual orientation, disability, language or socioeconomic status.” In counts III, IX, XV and XXI, the Department claimed that plaintiff’s conduct violated section 3.04 of the Ethics Code, which requires psychologists to “take reasonable steps to avoid harming their clients/patients *** and to minimize harm where it is foreseeable and unavoidable.” In counts IV X, XVI, and XXII, the Department alleged that plaintiffs conduct violated section 3.08 of the Ethics Code, which proscribes psychologists from exploiting “persons over whom they have supervisory, evaluative, or other authority such as clients/patients.” In counts V XI, XVII, and XXIII, the Department alleged that plaintiffs conduct with these four patients violated section 10.05 of the Ethics Code, which prohibits psychologists from engaging in “sexual intimacies with current therapy clients/patients.” In counts VI, XII, XVIII, and XIV the Department alleged that plaintiffs conduct with these four patients violated section 10.08 of the Ethics Code, which bars psychologists from engaging in “sexual intimacies with former clients/patients for at least two years after cessation or termination of therapy.” Counts VI, XII, XVIII, and XIV were subsequently withdrawn by the Department.

The Department also charged plaintiff in counts XXV and XXVI with failing to maintain proper medical records for patients K.T. and S.G.-N. respectively, in violation of section 6.01 of the Ethics Code, which obligates psychologists to “create, and to the extent the records are under their control, maintain, disseminate, store, retain, and dispose of records and data relating to their professional and scientific work in order to (1) facilitate provision of services later by them or by other professionals, (2) allow for replication of research design and analyses, (3) meet institutional requirements, (4) ensure accuracy of billing and payments, and (5) ensure compliance with law.”

On February 23, 2005, an ex parte hearing was held before the Department’s director on the petition for summary suspension, at which neither plaintiff nor his attorney was present. At the hearing, the director heard the testimony of a department investigator, William Disselhorst, who stated that he investigated the complaints of H.L., J.L., K.T., and S.G.-N., and learned that plaintiff had inappropriately touched their breasts and vaginas and failed to maintain treatment records for K.T. and S.G.-N. He also asserted that based on this conduct, plaintiff posed an imminent danger to the public. On the basis of this testimony, the director found that “the interests of safety and welfare imperatively require[d] emergency action to prevent the continued practice of clinical psychology by the plaintiff and that the plaintiffs actions constitute^] an immediate danger to the public” and entered an order summarily suspending his license to practice psychology pending proceedings before the Department’s Clinical Psychologist Licensing and Disciplinary Board.

On March 8, 2005, an administrative law judge (ALJ) commenced a hearing on the charges against plaintiff that continued on March 9, 10, 16, and April 8, 2005. At that hearing, S.G.-N, one of the Department’s complaining witnesses, testified that she moved into the Royal Oaks Care Center in Kewanee, Illinois, on July 17, 2004, and that plaintiff visited her there four or five times in her room. On one of these visits, she claimed that she fell asleep on her bed listening to a relaxation tape given to her by plaintiff and, when she awoke, found plaintiffs hand inside her clothing “playing” with her “privates.” She claimed that she was afraid of him because he had told had her that he “was working for the government” and she was afraid that “he was some kind of CIA agent,” and went to the bathroom. She soon returned to the bed, however, to “let him finish” because she was afraid he was going to hurt her if she did not. S.G.-N. testified that after the incident she told a fellow resident named Krissy about it and reported the encounter to Angie Harris, an administrator at the home, and Elsie Sail, the facility’s director of nursing. S.G.-N. asserted that she had been taking her medications at the time of the incident.

At the conclusion of the direct examination of S.G.-N., plaintiff moved to strike the entirety of her testimony because she did not testify as to when the incident occurred and therefore did not “link” her claims to the allegation in the administrative complaint that the incident occurred “in or about December 2004.” In response, the Department stated:

“She has testified to the period during which she has been residing at the home. She testified to the location of the event. Whether the event occurred in July when she was a resident at the home or occurred in any other month, say August, September, October, November, December, January, February, she testified that the event occurred. The event occurred during the period of her residency at the home. It occurred during any potential limitations period. The question of the date on which it occurred is one of simply whether or not there is any type of alibi that the doctor may have. It doesn’t go to whether or not the event occurred.”

In reply, plaintiff noted that Royal Oaks only engaged his psychological services on September 3, 2004, when the parties entered into a psychological service agreement, which was admitted into evidence, and thus he would have prepared his defense differently had he received notice that the incidents for which he was charged were to have occurred prior to that time. The ALJ denied the motion to strike and the proceeding continued.

On cross-examination, plaintiff asked S.G.-N. if she had been diagnosed with bipolar disorder. The Department objected to the question on grounds that the witness was not a medical doctor, which the ALJ sustained. In response, plaintiff argued that any disorders S.G.-N. suffered were relevant to the ALJ’s evaluation of her ability to correctly observe the incident and noted that the Department had asked her about her medications on direct examination. The ALJ stated that the Department did not “mention any particular diseases” and ruled that it was not going to let plaintiff “go into any medical history of this woman,” but would allow him to examine S.G.-N. with respect to her medications.

Plaintiff thereupon asked S.G.-N. what medications she was taking at the time of the incident and she stated that she was taking Xanax, Neurotin, and Risperdal. S.G.-N. admitted that patients at Royal Oaks are required to sign consent forms granting the facility permission to administer a particular medication to them and that she had signed some of those forms. Plaintiff then asked her if she was aware that some of the forms that she signed, which were not offered into evidence, stated that her medications could cause side effects including confusion and hallucinations, and she answered in the negative. Plaintiff offered into evidence a portion of S.G.-N.’s medical record, which contained a report stating that she suffered from “a long history of schizoaffective disorder with intermittent paranoid ideation about being poisoned by her stepfather.” Her medical record also included a note stating that on December 26, 2004, the day before she reported plaintiff’s conduct, she became loud and belligerent toward facility staff members and indicated that she was paranoid that the staff members were “out to get her.”

Plaintiffs attorney then asked S.G.-N. whom she told about the incident and she responded that she informed two administrators at Royal Oaks, Angela Harris and Elsie Sail, a fellow resident named K.T., as well as other individuals whom she could not identify. She did not remember speaking to an investigator or police officer about the incident, but indicated that she could have told a male resident of the facility or a staff member. The cross-examination continued:

“Q. Did you ever give Ms. Harris or anybody on staff at the nursing home a signed statement about the incident?

A. Yes.

Q. Do you remember when you signed that statement?

A. No.

ALJ CANAVAN: Do you want to take — Mr. Rhine, where are you going *** with this?

THE WITNESS: This is ridiculous.

ALJ CANAVAN: What are you trying to prove?

THE WITNESS: This is badgering.

MR. RHINE: Well, the witness isn’t able to object to me as badgering. I noticed Mr. Draznin [Department’s counsel] hasn’t objected to it. I have a statement that purports to be a signed statement by this witness with her account of the—

ALJ CANAVAN: You have already brought out the fact that she’s been on medication.

MR. RHINE: Now, this is a signed statement about the incident.

ALJ CANAVAN: Okay. Hurry up and finish this up. This lady has been sitting here for an hour.

MR. RHINE: I’m entitled to represent my client. I have been limited in my examination. I have not been accused by Mr. Draznin of harassing the witness.

MR. DRAZNIN: Yet.

MR. RHINE: I think if you look at the questions I have asked, they have not been excessive and they have not been in any way harassing. But I do want to present full evidence since that is my belief on how I can best represent my client in this matter.

ALJ CANAVAN: All right. Well, continue.

MR. RHINE: Are we taking a break for this witness or can I show her the statements that I contend she signed regarding the incident that is the subject of this case.

ALJ CANAVAN: Mr. Draznin[?]

Mr. DRAZNIN: I would ask that we take a five minute break.

ALJ CANAVAN: Why don’t you get her some water or coffee or something downstairs.”

Thereafter a brief recess was had and the ALJ stated, “All right. The witness has been crying for approximately 20 minutes. She’s obviously under a great deal of stress, and I am going to limit the cross-examination to 10 or 15 minutes upon the end of our five-minute break.” In response, plaintiff’s attorney stated, “That is over the objection of Plaintiff who feels that this is cross-examination, Plaintiffs license is at issue, and he should be entitled to flesh out the very vague and general allegations that have been testified to by this witness.” The cross-examination of S.G.-N. then continued.

On further examination, plaintiff’s counsel asked S.G.-N. about her belief that plaintiff was working for the CIA. and that she claimed he told her he worked for the government prior to the incident. She further admitted that she did not know the date of the incident or what time of day it occurred. She stated that her clothes were not unbuttoned, unzippered, or in any way torn or ripped when she woke up while plaintiff was touching her. The examination continued:

“Q. When you awoke, you got up and went to the bathroom; is that correct?

A. Yes.

Q. And at the time you got up, where was Dr. Morgan’s hand?

A. Inside of my underwear.

Q. So even though his hand was inside your underwear, you were able to get up without tearing or ripping your underwear; is that correct?

A. He jerked his hand out of my underwear.

Q. How soon after you woke up did he jerk his hand out of your underwear?

A. You are asking me ridiculous questions.

MR. RHINE: Your Honor, there is no objection from Mr. Draznin on a legal basis. The witness is not in a position to object to my questions.

ALJ CANAVAN: Well, she can answer or not answer it. She can answer it any way she wants. I can’t tell her how to answer a question.

MR. RHINE: I think you can advise her that she has to answer.

ALJ CANAVAN: She could answer to the best of her ability. If you could answer the question, please answer. If you don’t know the answer or don’t know, just say I don’t know. Repeat the Question.

MR. RHINE: Could the court reporter read the question back.

(Record read as requested).

THE WITNESS: Probably a second, a couple of seconds. I don’t know. I don’t really know. I can’t take this. This is tearing me apart.

MR. DRAZNIN: Judge, we resumed 12 minutes ago.

ALJ CANAVAN: Okay. Alright. Is [sic] there any other follow-up questions you have quickly.

MR. RHINE: Yes, I have questions. For the record, I object to a limitation on my cross-examination of this witness.

ALJ CANAVAN: You have already done that, I think, haven’t you? How many questions do you have do you think?

MR. RHINE: It depends on the answers, but I have a few more. I’m still asking questions.

ALJ CANAVAN: I’ll give you five more minutes. That’s it. ***

MR. RHINE: Do you want me to continue with the witness in her current state or did you want me to take a break?

ALJ CANAVAN: Well, yes, I think you might as well.

MR. RHINE: Okay.

ALJ CANAVAN: It is up to you.

MR. RHINE: I will continue.

THE WITNESS: I can’t take this.

ALJ CANAVAN: All right.

MR. RHINE: I would like the record to reflect that the witness did not cry during her direct examination when she addressed the incident.

BY MR. RHINE:

Q. Ms. [N.], after Dr. Morgan jerked his hand out of your underpants, did you get off the bed and go the washroom?

A. I went to—

MR. DRAZNIN: Mr. Rhine is asking questions that the witness has testified to already.

MR. RHINE: On direct, not on cross.

MR. DRAZNIN: And obviously, it does nothing to question credibility to ask the same — to repeat simply the testimony from earlier. If Mr. Rhine has questions that are appropriate, he should ask them. I would object to him simply restating earlier testimony.

MR. RHINE: Judge, I am entitled to ask questions that may have been asked on direct examination during cross-examination.

ALJ CANAVAN: Yes, you are; but you are not entitled to ask them over and over again. I know there’s been many objections, but please wrap this up.

Obviously, Ms. [N.] is unable to testify any more unless you have another question that she could answer.

MR. RHINE: Well, I don’t think cross-examination is limited to what the witness wants to be asked or answer. I have questions.

THE WITNESS: Do you realize that I have been molested before and when you have been through it so many times, you get kind of used to it happening to you but this ridiculous questioning is absurd.

MR. DRAZNIN: Your Honor, I would ask that that be stricken from the record because there was not question pending; and Judge, if Mr. Rhine wants to continue asking questions while the witness has indicated that she’s unable to answer them, then I would simply like the record to reflect that she is sitting her crying and has been crying for most of the last 16 minutes since we came back from break and that if the witness is unable to answer one of the questions Mr. Rhine asks because of her condition on the stand, would the record simply reflect that she’s unable to answer them because of her condition.

ALJ CANAVAN: Why don’t you talk to the witness.

MR. DRAZNIN: I’ve spoken with Ms. [N.] And she has said she’s not able to answer any more questions at this time.

ALJ CANAVAN: Would you put something in the record, Mr. Draznin, and you can put whatever objections you may have on in the record, too, Mr. Rhine. At this time, the witness is going to leave the room. Is she going to leave?

MR. DRAZNIN: Yes. Yes.

ALJ CANAVAN: She has been deemed unable to continue testifying under the cross-examination of Mr. Rhine. She’s been crying for about half an hour and can’t continue any longer.

Mr. Draznin, did you want anything in the record?

MR. DRAZNIN: Judge, I would simply state for the record what you had just said concerning her condition and then at your instruction, I spoke with the witness to find out if she was capable of testifying. I asked her to try to continue, if she could, and she indicated that she’s not able to answer any more questions.

MR. RHINE: I would ask that the witness’ testimony be stricken because she was not subject to full cross-examination and she left because of her condition even though I was not allowed to go into her medical condition on cross-examination so she has been allowed to leave the room based on her own determination that she could not continue, and she never testified to a date about when this incident occurred.

The Department is required to give us proper notice about when the alleged incident took place. ***

So the grounds for striking her testimony are two-fold. No.l, she did not complete cross-examination which limits the defense; and No. 2, she never identified a date of the alleged incident, therefore, we have gotten improper notice. That again limits us in preparing a defense to the charges.

ALJ CANAVAN: Thank you, Mr. Rhine. That oral motion will be denied.”

The Department’s next complaining witness, J.L., testified that she was a resident of Royal Oaks and met with plaintiff on December 16, 2004, in the activities office in the facility. J.L. stated that she has certain abnormalities on her breasts, which she related in her conversation with plaintiff and he asked if he could see them. She agreed and when she lifted her blouse, plaintiff grabbed her left breast and “started suckling it like a baby would when it was nursing” and inserted his finger into her vagina. J.L. stated that she told a staff member about the incident 45 minutes after it happened, but could not recall who specifically she told because “this is three months later and I have had different medication put into my system and I’ve lived on so many medications through the years that I’m lucky to be upright.”

The Department also admitted into evidence, over plaintiffs objection, a report drafted by two Illinois State Police investigators after their interview of J.L. on January 11, 2005. The report indicates that the investigators found her to be very lucid and exhibiting normal thought processes. She stated that she had been sexually abused in her past by her father and by two African American boys, and she stated, “I was also abused by a minister, a black man raped me named Jim and two security guards.” The report also indicated that J.L. told the investigators that during her second treatment session with plaintiff, she asked him about her nipple abnormalities and he sucked her breast for “maybe one and a half minutes.” She stated to police that he then asked her to pull her pants down but she refused, and he put his hand into her pants and touched her clitoris. The report indicates that she told police, “oh this is beautiful. I wanted him to stop, but...he did it long enough for me to orgasm.” She told police that he eventually stopped, told her not to tell anyone, and she agreed not to. J.L. also told investigators, however, that “the more I thought about that evening, the more I thought I should tell and he should lose his license.” J.L. claimed that K.T. and S.G.-N. told her that plaintiff had done similar things to them.

On cross-examination, J.L. admitted that she had been diagnosed with paranoid schizophrenia and takes, among other medications, Depakote, but denied suffering from “persecutory” delusions. Her medical records were received into evidence and notes included in those records indicated that she suffered from “persecutory” delusions and that she felt unfairly threatened or attacked by others. J.L. stated on further cross-examination that she informed a nurse on the date of the incident, and that she also told Angie Harris, an administrator at Royal Oaks, about the matter within “a couple of days” and was subsequently interviewed by the Illinois State Police and two other “gentlemen.” She stated that she told S.G.-N. and K.T. about the incident the morning after it happened, before she told Harris.

Plaintiff’s attorney then asked J.L. whether she had previously told anyone that she reached climax as a result of plaintiffs touching, to which the Department objected on grounds that it was beyond the scope of direct examination and that any such prior statement was not impeaching of her testimony at trial. This objection was sustained by the ALJ. Plaintiff’s counsel then asked J.L. if she ever told anyone that she did not tell plaintiff to stop because “it was so beautiful and it felt good,” to which the witness was permitted to answer, over the Department’s objection, that she told Harris and a priest that “it was beautiful and it felt good.” Plaintiffs counsel then asked whether she told anyone other than Harris and the priest that she climaxed during the incident and she replied that Sail, another administrator, was in the room when she told Harris. She also conceded that she told a State Police officer “the more I thought about that evening, the more I thought I should tell and he should lose his license.”

K.T., the Department’s third complaining witness, testified that she lived at Royal Oaks and met with plaintiff three or four times. K.T. claimed that she met with him on December 16, 2004, in her room and he “got up in my shirt and started feeling my breasts and he got into my pants and started feeling my vagina.” He then told her not to say anything about it. K.T. stated that she was taking her medications on the day of the incident and told Sail and Harris on December 27 or 28, 2004.

The Department also offered into evidence, over plaintiffs objection, a report drafted by two investigators from the Illinois State Police, who interviewed K.T. on January 11, 2005. The report indicated that K.T. told the investigators that she had met plaintiff in a courtyard of the facility approximately four weeks before the incident and talked to him on that occasion. K.T. alleged that plaintiff subsequently met with her in her room, and at that time, he touched both of her breasts. She indicated to police that she did not like his touching and he put his hand down her pants and rubbed her clitoris until she told him to stop. The report shows that plaintiff told her not to tell anyone and she told him that she would not. K.T. also told investigators that she had another encounter with plaintiff in her room on December 16, 2004, and at that time, plaintiff made her take her clothes off and lay completely naked on the bed and again touched her breasts and clitoris. She told him to stop and again he told her not to tell anyone. K.T. told investigators that she did tell a case manager at the facility named Deb Richter within “a couple days after December 16th.” She also stated that she spoke with her fellow resident J.L. about their respective encounters with plaintiff, but K.T. insisted that her recollection of plaintiffs conduct with her was not influenced by J.L.’s story.

On cross-examination, K.T. claimed that plaintiff had touched her sexually during his last two visits, the final visit occurring on December 16, 2004. She stated that she expected to see him on December 16, 2004, because he told her that he was going to bring her reading material about her disorders that day. When asked if she kept the documents he gave her, however, she asserted that she did not remember. K.T. denied telling S.G.-N. and J.L. about the incident. K.T. testified that she was taking Depakote, Klonopin, Ativan, but denied that the medications caused her to suffer from confusion or hallucinations. K.T. was then shown various forms that she signed prior to receiving these medications, which were received into evidence, that stated that some of her medications could cause confusion. K.T.’s medical records, which were admitted into evidence, show that she suffers from schizophrenia and auditory hallucinations. She admitted that she suffered from hallucinations, but insisted that she did not hallucinate plaintiffs conduct. K.T. denied that plaintiff told her to take off her clothes and lay completely naked in her bed and disagreed that she told investigators that he did. K.T. acknowledged that she had previously suffered from addictions to alcohol and crack cocaine. She stated that she did not tell plaintiff to stop when he was touching her breasts, but did so when he touched her vagina and he left the room. K.T. later stated that she told him to stop while he was touching her breasts.

On redirect examination, K.T. explained that she could not have hallucinated plaintiffs fondling because her hallucinations are visual in nature and do not give her the sensation of being touched.

The Department called Elsie Sail, the director of nursing at Royal Oak Care Center, who testified that, on December 16, 2004, residents of the facility informed her of plaintiffs actions with S.G.-N., J.L., and K.T. She stated that, thereafter, she called plaintiff several times to request that he submit progress notes in connection with his treatment of S.G.-N. and K.T., which had not been completed as required. In response, plaintiff told her that he did not complete progress notes for the two patients because he had treated them on a pro bono basis. Sail claimed that she instructed plaintiff to complete the notes because they were needed regardless of whether the patients were treated on a pro bono basis, but she never received the notes from him.

On cross-examination, plaintiffs attorney asked Sail to review a record maintained by the nurses in the facility which tracked when physicians visited the facility and which patients they saw. After reviewing the document, Sail stated that the document did not show that plaintiff visited S.G.-N. or K.T., but did indicate that he visited J.L. on December 16 and 23, 2004. Sail was then asked about her testimony on direct examination that she was informed of the incidents on December 16, 2004, and she stated that she was so advised on December 27 and 28, when J.L., K.T., and S.G.-N. came to her individually. She claimed that J.L. was the first to inform her of plaintiffs conduct and that K.T. and S.G.-N. separately advised her of their respective encounters with him the next day. Sail testified that after being so informed, she immediately initiated an investigation and reviewed facility records to determine which patients plaintiff had seen. During her review of the charts, she called plaintiff to ask about the progress notes and he admitted that he had seen K.T. and S.G.-N.

The Department also called Dr. Susan Zoline, a licensed clinical psychologist, to testify to the professional ethics applicable to the misconduct charged against plaintiff. Dr. Zoline first testified that section 6.01 of the Ethics Code requires a psychologist to maintain records concerning his treatment of a patient. Plaintiff then stipulated that “it would be a violation of the code of ethics for a psychologist in a professional relationship to fondle a breast, suck a breast, or place his hand in the vagina of a female patient.” Dr. Zoline next stated that a psychologist would violate section 3.04, which requires psychologists to “take reasonable steps to avoid harming their clients/patients *** and others with whom they work, and to minimize harm where it is foreseeable and unavoidable,” by placing his hand upon the breast of a female client, suck on her nipple or breast, place his hand upon her pelvic area, or insert his finger into her vagina. She further testified that such conduct would violate section 3.08 of the Code, which prohibits psychologists from exploiting “persons over whom they have supervisory, evaluative, or other authority such as clients/patients,” and section 10.05 of the Code, which bars psychologists from engaging in sexual intimacies with a patient.

On cross-examination, Dr. Zoline stated that a psychologist is obligated to maintain records concerning the treatment of any individual with whom he or she has a professional relationship. Plaintiffs counsel then asked Dr. Zoline about her interpretation of the phrase “foreseeable and unavoidable” in section 3.04, which requires psychologists to “take reasonable steps to avoid harming their clients/patients *** and others with whom they work, and to minimize harm where it is foreseeable and unavoidable.” Dr. Zoline stated that she interpreted “foreseeable” harm to include harm that a psychologist can foresee will occur, but that is not certain to occur.

Plaintiffs counsel then asked if the phrase “and unavoidable” immediately following the word “foreseeable” changed her interpretation. Dr. Zoline indicated that she did not understand the question and stated, “That is not an issue I’m comfortable answering. *** I’m not a linguist. I’m a psychologist.” Plaintiffs counsel then objected, stating that he did not believe it was appropriate for her to avoid answering the question because she was uncomfortable doing so, to which the ALJ responded that Dr. Zoline did not understand the question. Plaintiff’s counsel then asked her if she had a professional understanding of the word “unavoidable,” the Department’s counsel objected on grounds that the question had previously been asked and answered, and the ALJ sustained that objection. Plaintiffs counsel then asked Dr. Zoline about a different rule and then indicated he had no further questions on cross-examination.

Plaintiff testified both as an adverse witness for the Department and on his own behalf. When called by the Department, plaintiff stated that he evaluated J.L. on December 16, 2004, in an office at Royal Oaks, but denied touching her or sucking on her breast. He also reported that J.L. told him that she had made multiple false allegations of sexual abuse against males in the past. Plaintiff acknowledged that he may have spoken to K.T. “for a few minutes here and there,” along with other residents who approached him while he was working at the facility, but insisted that he never treated her as a patient, entered her room, or touched her in any way. Plaintiff also denied treating S.G.-N., entering her room, or touching her. He claimed that S.G.-N. approached him while he was working at the facility and told him that “people were touching her, doing things to her, having sex with her, that she smelled like sex.” The Department’s attorney then asked the circumstances in which S.G.-N. approached him and the following colloquy was had:

“THE WITNESS: As you’re going through the facility through different sections to see people, there are people that are floating and moving out through the environment. They may come up to you anywhere within the facility and ask you something. You could either blow them off say I don’t care to talk to you, which this guy may do, or you could talk to them. I did listen to them on occasion throughout weeks of going on. They tell you things. You hear them. You absorb them. You are going to call these people. You are going to ask them things. They are going to say things which are unreliable. I’m telling you exactly from the standpoint of a scientist, not a psychotic person who is hallucinating or delusional, who makes up things, makes up lies, makes up police records, everything else under the sun. I’m telling you what I see accurately as a scientist.

Q. You’re telling us that as somebody who was disciplined by the Department twice before for sexual misconduct.

MR. RHINE: Objection.

WITNESS: First of all, I didn’t do anything wrong. Your Department was wrong. I find your Department to be unreliable, unethical, corrupt and criminal, making things up. I can go through all the points of it but I did nothing. And it is up for civil litigation. We’re going to look at that. People made things up. They hid evidence. They didn’t introduce evidence that they were supposed to that would have exonerated me. You had investigators lying, making things up, saying they were at a place they weren’t at, they talked to people that weren’t there and presenting the witnesses that lied to the prosecutor, different lies that my attorney, a former administrative law judge, told me about, and then came into this court told a further different lie and then added a little part of another lie. I have see a lot of this within the context of the Department.

BY MR. DRAZNIN:

Q. Everybody else is lying or delusional?

A. Not everybody else. Some.

Q. The people who were your victims, who have been found to be victims of prior cases were lying, the people who have made the allegations against you in this case are lying or delusional and the Department is corrupt in prosecuting you?

A. Everybody knows the Department is corrupt. You’re not an independent judge. You are a judge who works for the Department.

ALJ CANAVAN: Sir, I have had enough of that. Just be responsive to the questions.”

During examination by his own counsel, plaintiff reviewed the medical chart of J.L., which was admitted into evidence, and stated that she suffered from bipolar disorder, mixed emotions with psychotic features. Plaintiff explained that this diagnosis indicated that the patient’s mood could range from “bipolar, which involves perceiving things that are not there and engaging in risky kinds of behavior for pleasure, to depression.” He further stated that the patient suffered from hallucinations and delusions, which involves “hearing things that aren’t there, and making things up because the perception is wrong, it is off, it is not reality based.” Plaintiff observed that her chart indicated that she suffered from tardive dyskinesia, which is a disorder which can develop when a patient uses antipsychotic medications for a long period of time and causes unusual mouth and tongue movements.

Plaintiff also testified on his own behalf later in the hearing and claimed that he never had a psychologist-patient relationship with S.G.-N. or K.T. and never entered their rooms. He further denied that he ever told anyone at Royal Oaks that he provided pro bono services to patients with the initials S.G.-N. or K.T. Plaintiff acknowledged that he treated J.L. on two occasions and stated that she admitted during his evaluations that she suffered from hallucination and had been diagnosed with schizophrenia and tardive dyskinesia. Plaintiff denied that he ever touched the breasts or vagina of S.G.-N., J.L., or K.T.

Plaintiff called as an adverse witness William Disselhorst, a Department investigator, who stated that he interviewed J.L., K.T., and S.G.-N. in connection with his investigation of plaintiffs conduct. Disselhorst stated that during his interview with J.L., she told him that the incident with plaintiff occurred just before Christmas 2004, during her last treatment session with him, but did not give a specific date. He acknowledged that the report he completed after the interview did not indicate that J.L. stated that the incident occurred during her last treatment session and did not give a specific date that the incident allegedly occurred. Disselhorst asserted that his investigation revealed that J.L. informed Royal Oaks staff of the incident in the last week of 2004.

Disselhorst further testified that during his interview with K.T., she told him that plaintiff fondled her breasts and put his hand in her pants during two treatment sessions, but she did not give specific dates for those sessions. He further asserted that K.T. told him that she told the staff of the facility about plaintiffs conduct before she told other residents. Plaintiffs counsel then asked Disselhorst if K.T. indicated during the interview that “relaxation tapes given to her by Dr. Morgan were used during the sessions that she had with him,” and he answered in the affirmative.

Disselhorst also interviewed S.G.-N., who told him that she had three treatment sessions with plaintiff, but she could not remember the specific dates of those sessions. He acknowledged that the report he completed thereafter stated that plaintiff asked her if she wanted to listen to relaxation tapes, she answered affirmatively, and he went to his car to get a cassette tape and cassette tape player. Disselhorst stated that S.G.-N. told him that she was unsure whether plaintiff had penetrated her vagina with his fingers.

Plaintiff then called Angela Harris, who averred that she is the administrator at Royal Oaks and oversees the day-to-day operation of the facility. She stated that the facility maintains medical records for each of its residents and that care providers, including psychologists, who visit patients at the facility make notations in the resident’s chart. Harris testified that the facility investigates all incidents of neglect or abuse and that all aspects of the investigation are documented. She testified that after she was informed of the complaints against plaintiff, she interviewed all residents who had a physician’s order to see plaintiff, and then interviewed every other patient after she discovered that he had seen some patients without a physician’s order. On December 27, 2004, an 1 ‘Abuse/Neglect Interview Form” was completed in connection with J.L.’s complaint against plaintiff, and the next day, similar forms were completed in connection with the complaints of K.T. and S.G.-N. All three reports were signed by Harris and submitted into evidence. Harris also identified various medical records for J.L., K.T., and S.G.-N. that were maintained by Royal Oaks, which were admitted into evidence. Harris acknowledged that the facility’s records showed that plaintiff visited J.L. on December 23, 2004, and asserted that plaintiff would not be allowed to see J.L. if she had complained of inappropriate conduct before that date.

On June 22, 2005, the ALJ issued its report and recommendations. In doing so, he noted that J.L. testified that in or about December 2004 plaintiff fondled her breasts and vagina during a treatment session, that K.T. testified that in or about December 2004 plaintiff fondled the breasts and vagina while she was listening to relaxation tapes, and that S.G.-N. testified that in or about December 2004 plaintiff fondled the breasts and vagina. The ALJ found this testimony “credible and forthcoming.” The ALJ also found that plaintiff failed to compose progress notes in connection with his treatment of K.T. and S.G.-N. for their respective medical files. The ALJ noted that plaintiffs behavior during the hearing was “argumentative, erratic” and that he “challenged the authority of the Administrative Law Judge and the Department’s ability to enforce or discipline his license.”

The ALJ specifically found that plaintiffs conduct violated: section 1400.80(i) of title 68 of the Illinois Administrative Code (68 Ill. Adm. Code §1400.80(i), amended at 28 Ill. Reg. 358, eff. December 19, 2003), which grants the agency the power to discipline a psychologist for committing “any act of sexual misconduct, sexual abuse or sexual relations” with a client or patient (counts VII, XIII, and XIX); section 3.03 of the Ethics Code, which proscribes psychologists from knowingly engaging in “behavior that is harassing or demeaning to persons with whom they interact in their work based on facts such as those persons’ age, gender, gender identity, race, ethnicity, race, culture, national origin, religion, sexual orientation, disability, language or socioeconomic status” (counts VIII, XIV and XX); section 3.04 of the Ethics Code, which requires psychologists to “take reasonable steps to avoid harming their clients/patients *** and to minimize harm where it is foreseeable and unavoidable” (counts IX, XV and XXI); section 3.08 of the Ethics Code, which proscribes psychologists from exploiting “persons over whom they have supervisory, evaluative, or other authority such as clients/patients” (counts X, XVI, and XXII); section 10.05 of the Ethics Code, which prohibits psychologists from engaging in “sexual intimacies with current therapy clients/patients” (counts XI, XVII, and XXIII); and section 6.01 of the Ethics Code, which obligates psychologists to “create, and to the extent the records are under their control, maintain, disseminate, store, retain, and dispose of records and data relating to their professional and scientific work” (counts XXV and XXVI). On the basis of these conclusions, the ALJ recommended that plaintiffs psychologist’s license be revoked for a minimum of five years.

On September 1, 2005, the Department’s Clinical Psychologist Licensing and Disciplinary Board entered a two-page order adopting the ALJ’s recommended findings of fact and conclusions of law and recommended to the director that plaintiffs license be revoked for five years and that he be ordered to pay an additional fine in the amount of $44,000.

On September 16, 2005, plaintiff filed a petition for rehearing and the Department filed a response on October 12, 2005. On October 31, 2005, the Department filed a motion to set a due date for plaintiffs reply brief, and plaintiff filed his brief on November 1, 2005. On November 17, 2005, the Director denied the motion for rehearing and entered a final decision. He specifically found that because the Board failed to file its recommendation within 60 days of the ALJ’s recommendation, he was obligated to base his findings on the recommendations of the ALJ. The Director then adopted the findings of fact, conclusions of law, and recommendation of the ALJ and additionally found that plaintiff showed a disregard for the truth when he stated on cross-examination that he did not know why he had been previously disciplined by the Department and showed a “complete” lack of credibility when he stated that the “Department is unreliable, unethical, corrupt, criminal, and manufactures evidence.” The Director further held that plaintiff’s credibility was undermined by the fact that he claimed that he never treated S.G.-N. and K.T., despite Sail’s testimony that she called plaintiff to ask for progress notes for those patients and plaintiff told her he did not need to complete such notes because he had treated them on a pro bono basis. The Director also stated in his decision: “The testimonies of patients J.L., S.G.-N., and K.T. were lucid and forthright. None of these witnesses displayed an inability to answer questions posed despite their mental illness and use of prescription medication. I find the testimony of each of the witnesses, J.L., S.G.-N., and K.T., regarding the sexual abuse at the hands of the Plaintiff to be credible.” On the basis of these conclusions, the Director revoked plaintiffs license for a minimum of five years.

On December 8, 2005, plaintiff filed a complaint for administrative review in the circuit court of Cook County and on March 21, 2007, the court affirmed the Director’s decision. Plaintiff now appeals.

II. ANALYSIS

Administrative decisions made by the Department of Financial and Professional Regulation pursuant to the Clinical Psychologist Licensing Act are subject to judicial review pursuant to the provisions of the Administrative Review Law. 225 ILCS 15/22 (West 2004); 735 ILCS 5/3 — 101 et seq. (West 2004). Under the Administrative Review Law, this court may review “all questions of law and fact presented by the entire record,” but may not consider new or additional evidence in making its determination. 735 ILCS 5/3 — 110 (West 2004). In reviewing the propriety of the Department’s decision, the agency’s findings and conclusions on questions of fact are deemed to be prima facie true and correct. 735 ILCS 5/3 — 110 (West 2004). Thus, we may not substitute our judgment for that of the administrative agency, but must ascertain whether the findings and decisions of the agency are against the manifest weight of the evidence. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992). An administrative agency decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident; if the record contains evidence to support the agency’s decision, it should be affirmed. Abrahamson, 153 Ill. 2d at 88.

Plaintiff raises numerous claims on appeal. He contends that the Director failed to include in his decision specific findings of fact as required by the Illinois Administrative Procedure Act (5 ILCS 100/ 1 — 1 et seq. (West 2004)), that the Director’s credibility determinations were arbitrary and capricious, and that the Director’s conclusion that plaintiff committed various ethical violations by inappropriately touching J.L., K.T., and S.G.-N. was against the manifest weight of the evidence. Plaintiff further asserts that numerous evidentiary rulings made by the ALJ during the hearing were erroneous. He also claims that the administrative complaint filed by the Department provided him with insufficient notice of the charges against him in contravention of Illinois law and principles of due process. Last, plaintiff contends that his right to due process of law was violated by the Department’s failure to enter a final agency decision until November 17, 2005, 222 days after the hearing before the ALJ was completed on April 8, 2005.

A. Nonconstitutional Arguments

We will not reach constitutional issues presented in a case if the matter can be resolved on other grounds (Lyon v. Department of Children & Family Services, 209 Ill. 2d 264, 271 (2004)), and accordingly, we will address plaintiff’s nonconstitutional arguments first. Plaintiff initially contends that the Department’s findings in this case are so sparse that they failed to meet the requirements of the Illinois Administrative Procedure Act (5 ILCS 100/1 — 1 et seq. (West 2004)). He specifically claims that the Director’s decision, which incorporated the ALJ report by reference, was insufficient because it contained “wholly conclusory” credibility findings and did not include an explicit statement of the facts underlying its legal conclusions. Plaintiff further asserts that the Department’s decision was arbitrary and capricious because the ALJ report found the testimony of S.G.-N., J.L., and K.T. to be “credible and forthcoming,” but did not specifically address the fact that each witness gave prior inconsistent statements to investigators, suffered from mental disorders, and took medication that could possibly cause confusion. We disagree that the Department’s findings were inadequate. In that regard, we note, “[a]n agency is not required to make a finding on each evidentiary claim, and its findings need be only specific enough to permit an intelligent review of its decision.” Merrifield v. Ulinois State Police Merit Board, 294 Ill. App. 3d 520, 528 (1997).

In this case, the ALJ summarized the testimony of the complaining witnesses in his statement of facts and stated that he deemed the testimony to be “credible and forthcoming.” The ALJ also noted the testimony of Sail that plaintiff failed to complete medical progress notes for S.G.-N.’s and K.T.’s charts and the testimony of Dr. Zoline that plaintiff’s conduct breached multiple provisions of the Ethics Code. Based on these findings, the ALJ concluded that the Department had met its burden of establishing that plaintiff had violated numerous regulations governing the conduct of psychologists and recommended that plaintiffs license be revoked.

The Board incorporated the ALJ’s recommendations in its decision and the matter proceeded to the Director, who also incorporated the recommendations. The Director made further findings of fact in his decision, finding that plaintiff showed a “disregard for the truth when testifying on cross-examination that he did not know the reason why he had been previously disciplined by the Department,” that plaintiff showed “a complete lack of credibility when stating that the Department is unreliable, unethical, corrupt, criminal, and manufactures evidence,” that plaintiffs credibility was further damaged by the testimony of Sail that plaintiff admitted to him that he treated S.G.-N. and K.T., that the testimonies of J.L., S.G.-N., and K.T. were “lucid and forthright,” and that J.L., S.G.-N., and K.T. did not display “an inability to answer questions posed despite their mental illness and use of prescription medication.” When read together, the ALJ report, which was incorporated by reference by the Director’s decision, and the Director’s additional findings of fact were “specific enough to permit an intelligent review of its decision” and thus complied with the requirements of the Act. Merrifield, 294 Ill. App. 3d at 528.

Plaintiff next argues that the Director’s findings were against the manifest weight of the evidence. He specifically contends that the Director erred in accepting as credible the testimony of K.T., J.L., and S.G.-N. that plaintiff touched them inappropriately even though all three witnesses were impeached by the fact that they suffered from mental disorders, took medication that can cause confusion, and gave prior inconsistent statements to investigators. With regard to S.G.-N., plaintiff specifically notes that her medical records show that she suffers from a schizo-affective disorder with intermittent paranoid ideation about being poisoned and that, on December 26, 2004, the day before she reported plaintiff’s conduct, she became loud and belligerent toward facility staff members and indicated that she was paranoid that the staff members were “out to get her.” He also observes that S.G.-N. stated at trial that she was afraid of plaintiff because she thought he was “some kind of CIA agent,” and that she did not remember meeting with Disselhorst despite the investigator’s testimony that he interviewed her. Plaintiff further asserts that S.G.-N.’s claim at trial that she was listening to relaxation tapes when he touched her was impeached by her earlier statements to the facility staff and Disselhorst that plaintiff left the room to get the tapes.

Plaintiff contends that J.L.’s testimony was impeached as well. He notes that her medical records showed that she suffered from delusions, had a history of feeling unfairly threatened or victimized by people, and took medication that could cause confusion. Plaintiff asserts that J.L. also exhibited a poor memory when she stated at trial that she could not recall the person to whom she reported plaintiffs conduct. He further argues that J.L. was inconsistent in her statements regarding when she met with him, observing that she first testified that she did not see him prior to December 16, 2004, but then changed her testimony to claim that she had. Plaintiff argues that J.L. was also impeached by the fact that she claimed that she did not see him again after her December 16, 2004, meeting, even though facility records showed that he met with her on December 23, 2004. Plaintiff also claims that J.L.’s statements to the Illinois State Police that she had 15 previous sexual encounters and had been abused by two “black boys, a minister, a black man named Jim and two security guards” were incredible, as was her claim that she mentioned her abnormal breasts to plaintiff. Plaintiff asserted that J.L.’s credibility was further undermined by the fact that she claimed at trial that she reported plaintiffs abuse to facility staff within 45 minutes of its occurrence on December 16, 2004, and told the facility administrator within 48 hours, despite the fact that facility records indicate that she was seen by plaintiff on December 23, 2004, and that she did not report the abuse until December 27 or 28, 2004.

Plaintiff contends that KT.’s testimony was impeached as well. He notes that K.T.’s medical records show that she suffers from schizophrenia and auditory hallucinations, and takes medications that can cause confusion. Plaintiff further observes that K.T. made numerous statements at trial that were inconsistent with earlier statements she made to those investigating her claims. He specifically notes that K.T. told Disselhorst, a Department investigator, that plaintiff made her lie naked on her bed and told police that she was listening to relaxation tapes when he touched her, but recanted both claims at trial. Plaintiff further contends that KT.’s testimony that plaintiff touched her during two sessions was impeached because the claim was inconsistent with her earlier statement during an interview with facility staff that he touched her during only one session and also contended that her testimony was illogical given the fact that she presumably would refuse to see plaintiff again after he molested her during an earlier session. He also argues that K.T.’s claim that she met with plaintiff on December 16, 2004, so that he could give her documents about her disorders was undermined by the fact that she did not remember if she kept the documents. Plaintiff also notes that K.T. changed her testimony about when she told plaintiff to stop touching her, initially stating that she told him to stop after he touched her vagina, but later saying that she told him to stop after he touched her breasts.

Although the record shows that S.G.-N., J.L., and K.T. suffered from mental disorders, took medication that could cause confusion, and gave prior inconsistent statements to those investigating plaintiffs conduct, we cannot say that the Director erred in finding credible their claims that plaintiff fondled their breasts and vaginas. We note that it “is for the Director, as the trier of fact, to evaluate all evidence, judge the credibility of witnesses, resolve any conflicts in the evidence, and draw reasonable inferences and conclusions from the facts.” Anderson v. Department of Professional Regulation, 348 Ill. App. 3d 554, 561 (2004). The Director may accept or reject as much or as little of a witness’s testimony as he pleases. People v. Sullivan, 366 Ill. App. 3d 770, 782 (2006). It is not the function of this court to “reevaluate witness credibility or resolve conflicting evidence,” but rather to determine only “whether the findings of fact are supported by the manifest weight of the evidence.” Ulysse v. Lumpkin, 335 Ill. App. 3d 886, 893 (2002).

In this case, the ALJ found the testimony of S.G.-N., J.L., and K.T. to be “credible and forthcoming,” and in the final agency decision, the Director stated that he reviewed the record and concluded that their testimony was “lucid and forthright” and that “[n]one of these witnesses displayed an inability to answer questions posed despite their mental illness and use of prescription medication.” Furthermore, despite the fact that portions of the witnesses’ testimony were contradicted by statements made to investigators before the hearing, the Director found that S.G.-N., J.L., and K.T. credibly testified that plaintiff touched them inappropriately and we will not disturb these credibility determinations on review. Lumpkin, 335 Ill. App. 3d at 893.

Next, plaintiff argues that the ALJ acted in an arbitrary and capricious manner when he failed to consider the credibility of plaintiff and S.G.-N. in a consistent manner. He observes that the ALJ found plaintiff to be an incredible witness because his behavior during the hearing was “argumentative, erratic” and that he “challenged the authority of the Administrative Law Judge and the Department’s ability to enforce or discipline his license,” but found S.G.-N.’s testimony to be not erratic despite the fact that she complained that plaintiffs counsel’s questions on cross-examination were ridiculous, absurd, and badgering. As noted above, the evaluation of witness credibility lies within the province of the Director. Anderson, 348 Ill. App. 3d at 561. In determining the respective credibility of S.G.-N. and plaintiff, the ALJ could have considered their general demeanor on the witness stand, the inflection of their voices, and emotional and physical reactions to questions propounded, considerations that would not be apparent from the written record. People v. Stankovich, 119 Ill. App. 2d 187, 194-95 (1970). Even if both S.G.N. and plaintiff exhibited some “erratic” behavior on the stand, as plaintiff suggests, such conduct would have been only one factor for the ALJ to consider in determining the credibility of each witness. Therefore, we reject plaintiff’s argument that the ALJ was arbitrary and capricious in weighing the respective credibility of S.G.-N. and plaintiff.

The testimony of S.G.-N., J.L., and K.T. that pla