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Treating Children and Families: Avoiding Ethical Pitfalls August 11, 2011 Gerald P. Koocher, PhD Simmons College

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Presentation on theme: "Treating Children and Families: Avoiding Ethical Pitfalls August 11, 2011 Gerald P. Koocher, PhD Simmons College"— Presentation transcript:

1 Treating Children and Families: Avoiding Ethical Pitfalls August 11, 2011 Gerald P. Koocher, PhD Simmons College

2 Focus of the workshop Understanding client status Confidentiality Multiple role conflicts Legal vs. ethical requirements Mandated reporting requirements Children in the context of divorce Working with clients across multiple levels of jurisdiction including schools and government agencies.

3 Ethics vs. Legal Issues

4 The Culture Gap Between Mental Health Practitioners and Lawyers Mental health practitioners train in a behavioral science model. We believe that an individual applying rigorous methods can discover significant truths within ranges of statistical certainty. Lawyers train as advocates. Lawyers believe that the search for truth depends on a vigorous adversarial cross- examination of the facts. Page 4

5 The Culture Gap Mental health professionals seldom give dichotomous answers to questions. We prefer to use probabilities, ranges, norms, and continua that reflect the complexity of human differences. Lawyers learn to “try” or weigh facts. Lawyers expect clear, precise, unambiguous decisions, They seek to establish bright lines and clear dichotomies. Page 5

6 The Culture Gap We strive to empathize with our clients and show them unconditional positive regard. Little progress will occur in our work with clients, if we do not like/respect each other. We constantly collect data and try to ask all the important and sensitive questions. Attorneys believe that they can (and must) at times defend people they detest. Attorneys may choose not to ask their clients certain questions (e.g., “Did you do it?”) in order to defend them vigorously. Page 6

7 Preponderance of Evidence (51%) Clear and Convincing Evidence (75%) Beyond a Reasonable Doubt (95%) Page 7 Levels of Proof in the Legal System

8 What Uniqueness to Kids and Families Bring to the Mix

9 9 Families often include… People with non-congruent, competing, or conflicting interests. People who wish to keep secrets from each other. People who do not wish to be totally candid with each other. People with differing levels of decisional capacity and dependence.

10 10 People who want to keep secrets from each other.

11 11 People who do not wish to be totally candid with each other. Do I look fat in this? Aren’t my parent’s wonderful? I’m right, aren’t I?

12 12 How are Child Clients Different from Adults? Legal Status –Minors and Emancipated Minors Example: Dominique Moceanu Socialization Influences –The case of Ricky Ricardo Green Time perspective Concept manipulation abilities –Piagetian and other Developmental Frameworks

13 Children’s Competencies

14 14 What are you really asking for when you say, “Is that okay with you?” Consent –Competent, Knowing, Voluntary Assent –Veto Power –Therapeutic versus non- therapeutic context Permission –Proxy Consent –Substituted Judgment

15 Let’s clean up the terminology “Informed consent” as a tautology –By definition, consent must be an affirmative, knowing, voluntary act. Passive consent as oxymoron –Consent cannot occur via inaction. Delancy et al. v. Gateway School District Gateway settles parents' suit over child queries;February 13, 2001, Eleanor Chute, Post-Gazette; parents complained their elementary children had been asked personal questions without permission in 1995 settled lawsuit yesterday, includes $225,000 payment People participate in studies, subjects do not.

16 Essential Components of Informed Decision Making Information –Access Understanding –Comprehension Competency Voluntariness Decision Making Ability –Reasoning Capacity

17 Children’s Competence to Consent Ask yourself: Does the child have… the ability to understand information offered about the nature and potential consequences of the pending decision? the ability to manifest a decision? the ability to make an appropriate decision on reasonable bases?

18 18 Important Case Law on Decision Making and Children Prince v. Massachusetts, 321 U.S. 158 (1944) –Parents may not make martyrs of their children Parham v. J.R., 442 U.S. 584 (1979) Fare v. Michael C., 442 U.S. 707 (1979)

19 What’s a practitioner to do? Focus on –Competence –Confidentiality –Informed consent or permission from all parties –Role clarity –Vigilance, monitoring, and active management as change occurs or new issues arise 19

20 Confidentiality and Mandated Reporting

21 21 Fundamental statement on confidentiality Mental health providers have a primary ethical and legal obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional relationship.

22 22 Limits on Confidentiality Mental health practitioners must discuss (including, to the extent feasible, persons who are legally incapable of giving informed consent and their legal representatives): –(1) the relevant limits of confidentiality and –(2) the foreseeable uses of the information generated through theirprofessional activities.

23 23 Consent to Services Discussion Topics Provide the same basic information given to individual clients Confidentiality limits Access to records Normal conflicts of interests in multiple client therapies Children’s rights and limitations in these situations

24 24 What principles apply to informed consent to treatment? Inform clients as early as feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality. Provide sufficient opportunity for the client to ask questions and receive answers.

25 25 Comments on Consent For persons who are legally incapable of giving informed consent, nevertheless –(1) provide an appropriate explanation, –(2) seek the individual's assent, –(3) consider such persons' preferences and best interests, and –(4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law…take reasonable steps to protect the individual’s rights and welfare.

26 26 Comments on Informed Consent When services are court ordered or otherwise mandated, practitioners should inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding. We must also document written or oral consent, permission, and assent.

27 27 Working with Families and Children Consent Discussion Topics Basic information given individual clients. Confidentiality limits Access to records Normal conflicts of interests in multiple client therapies Children’s rights and limitations on these Rules for disclosure of info across family Reminder that no one can predict the course of or changes in human relationships HIPAA rules

28 Mandated reports Who, what, and to whom… –Child abuse –Elder abuse –Dependent person abuse –Others… Abuse of former client(s) (Minnesota) Unsafe drivers (Pennsylvania and pending in Massachusetts) Use of tetrahydrocannabinol or has alcoholic beverages during pregnancy (Minnesota)

29 Twists and Turns in Massachusetts Mandated Reporting Financial abuse of elders is reportable, but religious treatment of illness is not. Disabled persons may request privilege from the provider. Religious leaders not exempt from child abuse reporting mandates.

30 People v Caviani, 172 Mich App 706; 432 NW2d 409 (1988) Mother initiated family therapy with defendant after suspecting that her husband had sexually molested their nine-year-old daughter. Defendant, a psychologist and family therapist, rendered therapy and treatment to the victim, the victim's mother and the victim's father. During individual therapy sessions in early 1986, the child told defendant about recurring incidents in which her father fondled her breasts. When questioned the victim's father made it clear to defendant that if he had touched the victim, such touchings were completely accidental and not done for the purpose of sexual arousal or gratification. The child later told a school counselor, who reported the incident to protective services. A petition based on the victim's allegations of sexual abuse was filed in the probate court. Contending that defendant had reasonable cause to suspect that the victim had been molested but had failed to report the suspected child abuse as required.

31 Buckingham Browne & Nichols & Edward H. Washburn (1983-1985) Washburn turned in by sister, after her son disclosed abuse by uncle. BB&N did not report the incidents to state officials and attempted cover up. Washburn pled guilty. School and headmaster fined, psychologist disciplined.

32 Psychologist Accused of Failing to Report Child Abuse POSTED: 6:35 am EDT April 9, 2009 NORTH VERNON, IN -- A psychologist was arrested in his Jennings County office Wednesday on a charge of failing to report child abuse or neglect. Police said Dr. Robert Dailey did not report a case in which a juvenile suspect in a child molestation investigation told him of inappropriately touching another juvenile during an appointment. The juvenile's case went through the juvenile justice system.

33 626.5561, Minnesota Statutes 2007: REPORTING OF PRENATAL EXPOSURE TO CONTROLLED SUBSTANCES---  “A person mandated to report… shall immediately report to the local welfare agency if the person knows or has reason to believe that a woman is pregnant and has used a controlled substance for a nonmedical purpose during the pregnancy, including, but not limited to, tetrahydrocannabinol, or has consumed alcoholic beverages during the pregnancy in any way that is habitual or excessive.  Any person may make a voluntary report if the person knows or has reason to believe that a woman is pregnant and has used….

34 An oral report shall be made immediately by telephone or otherwise. An oral report made by a person required to report shall be followed within 72 hours, exclusive of weekends and holidays, by a report in writing to the local welfare agency. Any report shall be of sufficient content to identify the pregnant woman, the nature and extent of the use, if known, and the name and address of the reporter.” 626.5561, Minnesota Statutes 2007: REPORTING OF PRENATAL EXPOSURE TO CONTROLLED SUBSTANCES---

35 Duty to Protect Third Parties for Dangerous Kids

36 McIntosh v Milano, 1979 Lee Morgenstern, a teenaged client, told his therapist (a psychiatrist named Milano) of sexual adventures, acting-out behavior, and jealousy related to Kimberly McIntosh, the young woman next door. The therapist did not particularly believe him. Later the teen shot the woman to death, and the psychiatrist was sued. He sought summary judgment, but it was not granted, and the case went on to a trial. The jury ultimately found no negligence on Dr. Milano's part.

37 Thompson v. County of Alameda, 1980 A teenaged juvenile offender named James who was in county custody threatened to "off" someone when released from incarceration. Sent home on a leave in his mother's custody, he tortured a 5-year-old neighborhood boy to death. The parents sued the county and advanced the Tarasoff doctrine as part of their case. The court disallowed application of that doctrine, because there was no specific identifiable victim of the teenager's nonspecific threats. In addition, the court ruled that the official decision to grant leave and similar correctional release decisions were immune from liability.

38 Confidentiality and Dead People

39 Confidentiality and Deceased Patients –Legal representative of estate have authority unless specifically prohibited by state law (HIPAA Privacy Rule) –Not required if licensed therapist decides, in the exercise of reasonable professional judgment, that treating an individual as personal representative is not in patient’s best interest (HIPAA Privacy Rule) Page 39

40 Still more twists on confidentiality of dead people Middlebrook, D. W. (1991). Anne Sexton: A biography. New York: Vintage Books. –Martin Orne, MD, PhD Swidler & Berlin and James Hamilton v. United States U.S. 97-1192. –Opinion by Rehnquist, joined by Stevens, Kennedy, Souter, Ginsburg, and Breyer, held that notes were protected by attorney-client privilege because both a great body of case law and weighty reasons support the position that attorney- client privilege survives a client's death, even in connection with criminal cases. Opinion cited: Jaffee v. Redmond, 518 U.S. 1, 17-18, 135 L. Ed. 2d 337, 116 S. Ct. 1923 (1996) Page 40

41 41 Sharing information about children’s psychotherapy with their parents Fundamental concept: therapy has to be safe for all participants and parents need to know info about their children that allows them to fulfill parental responsibilities.

42 42 Sharing information about children’s psychotherapy with their parents Children should have consensual confidentiality rights. Parents should have regular progress reports. Therapists may breach a child’s confidentiality non-consensually to prevent serious harm, disclosing only info necessary for parents to protect. –Clarify meaning of serious harm to avoid confusion.

43 Children’s Records Under HIPAA In most cases, parents can exercise a right of access to the medical record on the child’s behalf –[45 C.F.R. 164.502(g)(3)]. Regulations permit minors to exercise control over their own records if, under applicable state law, they did or could obtain the health care for which the records are being sought without the requirement of parental consent, and if the minor did not ask for the parent to be treated as a personal representative. –[45 C.F.R. 502(g)(3)(i)]

44 Massachusetts General Laws Parents have a right to a copy of their child’s records. Children may seek treatment without parental consent if they believe they: –may be pregnant or seek family planning advice –May have a sexually transmitted disease –Age 12 or older seeking substance abuse treatment (except Methadone) –Age 16+ seeking mental health treatment

45 Emancipated and Mature Minors in Massachusetts Emancipation is a legal status that reduces parents’ rights and duties toward their child and gives the child some adult rights. Massachusetts does not have a formal procedure for granting emancipation, but minors may petition for this status in court. Massachusetts does recognize a mature minor rule, which means that minors can consent to medical treatment— except for abortion—if the doctor believes the minor can give informed consent to the treatment and it is in the minor’s best interest not to notify his or her parents.

46 Abortion and Minors in Massachusetts A minor who is married, divorced, or widowed can obtain an abortion without parental consent. A minor who has not married must obtain consent of one parent or guardian. If she is unable to obtain or chooses not to ask for consent from a parent/guardian, she may petition a judge of the Superior Court to obtain consent

47 Practitioner Competence

48 48 Standards on Competence Mental health professionals should practice only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study, or professional experience.

49 49 Standards on Competence An understanding of factors associated with age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, or socioeconomic status is essential for effective implementation of services with specific populations. Practitioners should recognize their limitations and if not qualified you make appropriate referrals.


51 Custody Disputes

52 Child Custody Cases: Key Advice Don’t treat the system casually! Get formal training and mentored experience. Seek judicial appointment, if possible. Clarify roles and expectations with all parties at the outset.

53 Common criticisms of mental health practitioners in custody disputes Deficiencies and abuses in professional practice. Inadequate familiarity with the legal system and applicable legal standards. Inappropriate application of assessment techniques. Presentation of opinions based on partial or irrelevant data.

54 Overreaching by exceeding the limits of knowledge in expert testimony. Offering opinions on matters of law. Loss of objectivity through inappropriate engagement in the adversary process. Failure to recognize the boundaries and parameters of confidentiality in the custody context. More Common criticisms in custody disputes

55 Provide a statement of adult parties’ legal rights with respect to the anticipated assessment –Give a clear statement regarding the purpose of the evaluation. –Identify the requesting entity. (Who asked for the evaluation?) –Describe the nature of anticipated services. (What procedures will you follow?) –Explain the methods to be utilized. (What instruments and techniques will you use?) –Specify whether or not the services are court ordered. Elements of Notification in a Custody Evaluation

56 Delineate the parameters of confidentiality. –Will anything be confidential from the court, the parties, or the public? –Who will have access to the data and report? How will access be provided? Provide information regarding: –The evaluator’s credentials; –The responsibilities of evaluator and the parties; –The potential disposition of data –The evaluator’s fees and related policies; –What information provided to the child, and by whom? –Any prior relationships between evaluator and parties; –Any potential examiner biases ( For example: presumptions regarding joint custody). Consent documentation –Obtain consent to disclose material learned during evaluation in litigation. –Obtain waiver of confidentiality from adult litigants or there legal representatives. –Provide written documentation of consent. Elements of Notification in a Custody Evaluation

57 Consent to Mental Health Treatment in Conflicted Family Situations

58 58 Who May Consent to Treatment for a Minor Child? The Child –Confirm applicability of state laws. The Parents –Joint custody means either parent may consent unless court decrees state otherwise. –With joint custody either parent can demand an end to therapy of minor child. –Resisting parental demand could result in disciplinary action.

59 59 Who Can Consent to Treatment of Minor Child? When legal/physical custody is divided: –Seek consent from both parents prior to evaluating or treating. –Request copy of divorce decree or letter from parent’s attorney attesting to their authority.

60 60 Who Can Consent to Treatment of Minor Child? When a parent is unavailable or when parental contact might reasonably be expected to harm the child: –Seek consultation. –Note pros and cons of non-contact in your records.

61 61 Parental disputes regarding child’s treatment Consent to your services does not equal acceptance of payment responsibility. –Clarify this in advance, preferably in writing, with the party accepting responsibility.

62 62 Who is the client when a child enters therapy? Does a psychotherapist-client relationship exist when a parent participates in services only (or chiefly) to aid the child? –If parent is not considered a client he/she should be specifically informed before professional activities begin. –Information provided in such contexts is confidential, but may not be privileged. –Document the parent’s “client” status in writing

63 63 Who is the client when a child enters therapy? Usual best option: designate parents as clients for limited purposes in your records and inform them.


65 Common Trends: Boundaries & Competence Sex Suicide Child Custody –Release of records –Role confusion/conflict Confidentiality Record Keeping

66 66 Therapy Involving Couples or Families When agreeing to provide services to several persons who have a relationship (such as spouses, significant others, or parents and children), reasonable steps to clarify at the outset –(1) which of the individuals are clients/patients and –(2) the relationship the practitioner will have with each person. This clarification includes the practitioner’s role and the probable uses of the services provided or the information obtained.

67 67 Therapy Involving Couples or Families If it becomes apparent that you may be called on to perform potentially conflicting roles (such as family therapist and then witness for one party in divorce proceedings), psychologists take reasonable steps to clarify and modify, or withdraw from, roles appropriately.

68 68 Remember to discuss… Rules for disclosure of information across the family. Reminder that no one can predict the course of or changes in human relationships.

69 69 Isn’t it obvious? Do not engage in sexual intimacies with individuals known to be close relatives, guardians, or significant others of current clients/patients. Do not terminate therapy to circumvent this standard.

70 70 Multiple Relationships A multiple relationship occurs when a the practitioner holds a professional role with a person and –(1) at the same time is in another role with the same person, –(2) at the same time is in a relationship with a person closely associated with or related to the person with whom you have the professional relationship, or –(3) promises to enter into another relationship in the future with the person or a person closely associated with or related to the person.

71 71 Multiple Relationships Refrain from entering into a multiple relationship if that relationship could reasonably be expected to impair your objectivity, competence, or effectiveness in performing your functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists. Multiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical.

72 72 Multiple Relationships If you find that, due to unforeseen factors, a potentially harmful multiple relationship has arisen, take reasonable steps to resolve it with due regard for the best interests of the affected person and maximal compliance with the ethical standards. When required by law, institutional policy, or extraordinary circumstances to serve in more than one role in judicial or administrative proceedings, clarify role expectations and the extent of confidentiality at the outset and thereafter as changes occur.

73 73 Who’s in the record? Mental health practitioners 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… –(1) facilitate provision of services later by them or other professionals, –(2) allow for replication of research, –(3) meet institutional requirements, –(4) ensure accuracy of billing and payments, and –(5) ensure compliance with law.

74 74 Involvement of 3 rd Parties When you agree to provide services to a person or entity at the request of a third party, attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes your role (e.g., therapist, consultant, diagnostician, or expert witness), an identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality.

75 75 Psychologists, Kids, and Schools : Special Ethical Concerns Who is the Client? The School Board? The Principal? The Parents? The Child? Who is most vulnerable?

76 76 Kids, and Schools : Special Ethical Concerns Organizational Demands versus Child Client Needs –Incongruent interests –Autonomy in the context of organizational structure –Service needs and limited budgets Forrest v. Ansbach

77 77 Psychologists, Kids, and Schools : Special Ethical Concerns within the School  Legitimacy of token economies, rewards, and aversive controls  Use of “time out”  Preventive exclusion  Post hoc support for administrative decisions  Pygmalion effects

78 78 Psychologists, Kids, and Schools : Special Ethical Concerns Privacy and Confidentiality –What goes into school records –Who has access –“Need to know: paradigm Psychologist as “whistle blower” and mandated reporter in absence of administration action

79 79 Psychologists, Kids, and Schools : Special Ethical Concerns School-based research –Merriken v. Cressman: “prediction of drug and alcohol abuse” in Norristown, PA schools opposed by parent and ACLU Consent –“Opt-out Consent” Delancy et al. v. Gateway School District –Prediction of school-based violence

80 Stigma and Labeling Designation as “at risk” creates risk

81 81 Kids, and Schools : Special Ethical Concerns Extending Home Substance abuse Domestic violence Academic dishonesty Disciplinary actions: –Detention –Suspension –Expulsion Attendance Misuse of “high stakes” testing Harassment and bullying (school violence) Social needs IEP appeals

82 Problem Cases

83 Donna Rhea (part 1) Donna Rhea, age 15, discloses to her psychotherapist that she and her boyfriend are going to “have sex” this weekend at his house on Friday night, while his parents are away. He’s 17 and they have been dating for 3 months.

84 Donna Rhea (part 2) Donna Rhea, age 16, discloses to her psychotherapist that she and her boyfriend are going to “have sex” this weekend at his apartment on Friday night. He’s 21 and they have been dating for 3 weeks.

85 Donna Rhea (part 3) Donna Rhea, age 16, discloses to her psychotherapist that she is using drugs purchased from another student at her high school and is engaging in unprotected sexual intercourse with him in payment for the drugs.

86 The Runaway Patient Becky Splitsky, age 14, calls her psychotherapist to report that she has run away from home. Her parents do not know whether their child is safe and are frantic with worry. You ask the girl whether she objects to your letting her parents know that she is all right, and she says that she does object.

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