On Monday, June 6, at 6 pm Pacific time I will be presenting a Webinar on the future of Roe v. Wade. I will talk about the fundamental right of privacy and the protections offered by the 14th Amendment.
I would love to have your comments and questions about this subject! Please send me an email at aisrael@ewu.edu. I will have my presentation posted to this blog for viewership.
I am frequently asked by students why I recommend a law-based system for decision makin in the mental health professions, including social work, psychology and counseling. The answer, without oversimplifying it, is that professional codes of ethics impart very limited assistance to professionals and students who face important practice decisions every day in their professional lives.
As a primary example of the NASW Code of Ethics’ failure to render adequate assistance, let’s start with the statement made in the Code’s preamble, which warns us that only some of the standards contained in the code are enforceable! The rest are only aspirational principles that we should try to uphold. This is an amazing abdication of any responsibility for holding social workers accountable for certain basic standards of practice.
Consider also the NASW Code’s announcement in its opening pages that it declines to define what it means when it uses the term client. We’re left without any understanding of the responsibilities that emanate from the social worker-client relationship and are led to believe instead that social workers have unlimited responsibilities to persons, communities, and society without any limitation. Indeed, according to the NASW Code, the world is our client! This is obviously ridiculous and unenforceable.
I’ll be commenting in future posts about weaknesses in professional ethical codes and that we can do to ensure that our professional decision making is law based, rational and reasonable, and, moreover, that it advances the real ethical values of our variuos mental health professions. In the meantime, please examine other posts on this blog, together with the rest of the website http://mentalhealthlaw.us, to learn more about law-based decision making.
This blog and the website associated with it present a law based strategy for the resolution of practice dilemmas in the mental health professions. One of those professions is social work, whose members are bound by the tenets of the NASW Code of Ethics. Why do we reject the usefulness of the NASW Code as a decision making tool? One of the reasons is the abject failure of NASW to plainly and unequivocally explain exactly what social work is. Indeed, as NASW’s explanation of the “definition” of social work shows, it is unwilling to inform social workers in simple, plain, succinct language exactly what the specific parameters of social work practice are:
“The primary mission of the social work profession is to enhance human wellbeing and help meet the basic human needs of all people, with particular attention to the needs and empowerment of people who are vulnerable, oppressed, and living in poverty. A historic and defining feature of social work is the profession’s focus on individual wellbeing in a social context and the wellbeing of society. Fundamental to social work is attention to the environmental forces that create, contribute to, and address problems in living.
Social workers promote social justice and social change with and on behalf of clients. “Clients” is used inclusively to refer to individuals, families, groups, organizations, and communities. Social workers are sensitive to cultural and ethnic diversity and strive to end discrimination, oppression, poverty, and other forms of social injustice. These activities may be in the form of direct practice, community organizing, supervision, consultation administration, advocacy, social and political action, policy development and implementation, education, and research and evaluation. Social workers seek to enhance the capacity of people to address their own needs. Social workers also seek to promote the responsiveness of organizations, communities, and other social institutions to individuals’ needs and social problems.”
The above definition is broad enough to encompass any profession know to humankind. In its overbreadth it expresses no clear meaning. As we make the case in this blog and website, without a concrete, working definition of social work practice, it is impossible to bind social workers to the standards expressed in the NASW Code of Ethics. In contrast, the law defines social work in terms of the tasks performed by social workers: providing direct mental health treatment, investigating allegations of child and elder abuse and neglect, and related responsibilities. Therefore, we urge that social work practitioners, together with other mental health professional, have much to gain from considering a law-based decision making strategy to address everyday practice dilemmas.
The website and blog frequently discuss the importance of coming to an understanding about what it means to be the “client” of a mental health provider. Specifically, a mental health practitioner cannot lawfully provide services to a person unless and until a professional-client relationship has been formed. This means voluntary acceptance of the relationship by both parties (or, in some instances, substituted acceptance of the relationship by someone acting on the client’s behalf).
What does the NASW Code of Ethics say about the meaning of the term “client”? In a word, nothing. Here’s what the NASW Code does say about clients in its preamble:
‘Social workers promote social justice and social change with and on behalf of clients. ‘Clients’ is used inclusively to refer to individuals, families, groups, organizations, and communities.’
Without the most minimal effort to define the meaning of the term “client,” the NASW Code of Ethics leaves social workers with little or no understanding of what the legal ramifications of initiating a client-professional relationship are. For that matter, the NASW Code leaves social workers without any enforceable guidelines explaining the impact of clienthood on clients and the corresponding duties that it places on professionals. This fact provides yet another reason for mental health practitioner to adopt the law based decision making system advocated by this website and blog in every aspect of daily practice.
Much has been written in recent months about the California law enacted to place a ban on the use of “conversion therapy” as a pseudo-treatment to “change” the sexual orientation of gay people. The basis of the California law is the simple reality—one accepted by mainstream mental health professionals—that conversion therapy not only fails to work but that it is also denies the fundamental condition of sexual orientation, one that is established early in life and represents a normal part of human existence. The California law has been struck down—at least for now—by a court that has claimed the law violates the 1st amendment based free speech rights of therapists engaged in conversion therapy. Unfortunately, this position fails to take into account all the risks and potential harm of conversion therapy, a fact that would seem to ignore the fundamental role of informed consent in the creation of a professional relationship between mental client and provider. When the informed consent dialog fails to include a discussion of the risks of services, and, indeed, when the basic therapeutic approach is inherently at odds with the mental health stability of the client, this violation of informed consent would clearly seem to trump any consideration of the impact of the therapist’s free speech. Indeed, free speech has always been regarded as having its limits. For example, the act of defamation and the act of false advertising, among countless other examples, demonstrates that free speech can and must be regulated when the interests of the public are in peril. This conclusion is based on sound and conservative interpretations of constitutional law and the law of informed consent. Much more information about these important legal areas is provided on this website in the Constitutional Law and Informed Consent sections of this website. As always, your input on this issue is openly invited.
This dilemma is inspired by a recent episode of the wonderful dramatic show “In Plain Sight”: In the show, divorcing parents with two school-aged children each accuse the other of abusing and neglecting their children. The husband, who is a physician, has been shown to have been prescribing excessive quantities of oxycodone, a painkiller, to his wife. He then proceeds to inform a social worker that his wife’s abuse of the drug constitutes neglect of the children. Apart from the hypocricy of the physician’s attempt to hold his own abuse of his prescription practices against his wife, does the wife’s possible misuse of the drug alone constitute reasonable suspicion that the children are being abused or neglected by the mother? If we take seriously the right of privacy associated with parenthood (see the website’s discussion on constitutional law), then the misuse of medicine does not of itself demonstrate child neglect in the absence of any specific evidence that the children have in fact been mistreated. In other words, this does not present — at least not yet — a “duty to warn” or “duty to protect” case by any mental health professional who comes into contact with this family (please see the website’s discussion of the duty to practice reasonably competently). Parents must be allowed to screw up — to misuse medicine, to drink too much, and to do other things that violate society’s mores — without drawing the immediate inference, without any independent proof, that their children are being abused or neglected. Some alcoholics and substance abusers are excellent parents and never allow their misuse of substance to interfere with important parental responsibilities. What do you think?
Happy new year everyone!
During a trip to Albuquerque recently as I was driving along the highway I noticed a billboard promoting a law office. The sign said, among other things, that the firm was “powerful.” If one considers the impact this billboard may have in soliciting new clients, one has to consider whether there is anything misleading about this boast, and especially whether any potential client’s ability to consent to services is interfered with by the message of the billboard. It should be remembered that informed consent requires that a prospective client have knowledge of the services he/she is about to receive, together with the risks and benefits of services, and also that the client consent voluntarily to the services. When a law firm suggests to the public that it is “powerful,” it is actively misleading the public and prospective clients into believing that the services the firm offers are of a higher quality because of the firm’s supposed “power.” In reality, to suggest that one firm is more powerful than another simply because it advertises is ridiculous, and this type of “puffing” would seem to confuse and corrupt the information a prospective client needs to have in order to choose to receive the firm’s services knowledgeably and with full information concerning the nature of the firm’s services. What do you think? Please take a look at the section on informed consent on this website! You can access it through the main page, located at mentalhealthlaw.us.
As readers of this blog have noticed, I have presented a series of professional dilemmas derived from similar case scenarios in well-known ethics treatises. As with the other dilemmas I have presented, I wish to make the case that many “ethical” dilemmas have imbedded legal issues which make them amenable to analysis using the law based decision making framework presented at this website. My latest example presents for the first time a problem involving social work supervision: Jade Sammon is a family counselor schooled in psychoanalytic methods. She has been practicing using this model within a community based family agency. Jade has a field practicum student, Mary Hartpence, whom Jade has been supervising for some weeks. Jade has had no previous experience working with practicum or field placement students. Jade has been unhappy with Mary’s overall performance, and she doubts whether Mary will make an effective social worker. Mary has been providing one-on-one client psychotherapy services, with clinical supervision provided biweekly by Jade. At the crux of their conflict is the step Mary took independently at the commencement of her practicum to advise clients that she was a student. Jade advises Mary that she disagrees with Mary that any clients should have been advised about Mary’s status as a student, because she is convinced that this revelation would provoke a clients to leave treatment or to conclude that they are receiving inferior services. During supervision, Mary, at Jade’s urging talks extensively about her troubled social relationship with a verbally abusive boyfriend. In response, Jade shares her concerns with Mary that Mary’s personal life — including her continuing involvement with the boyfriend — are interfering with Mary’s work at the agency. It seems as though much more of Mary’s supervision time is spent discussing Mary’s past and present life than her clients. At one point, Jade tells Mary that she could see her as a client for individual therapy at a reduced rate because Mary is a student with limited funds. The question posed by the author of this scenario as it originally appeared in an ethics treatise is simply this: “Is jade engaging in ethical practice as a supervisor?” I hope that most readers will pause here a moment and will experience the same sense I do of being aghast at the manner in which Jade is handling her interaction with her student. I hope readers will also quickly come to the realization that the issues most obviously presented here are legal ones: First, the failure to reveal Mary’s status as a student violates the principle of informed consent as it denies clients knowledge of a major risk (and perhaps a potential benefit) of working with a field intern rather than the primary therapist. That’s not to say that Mary cannot work with clients directly, just that the fact she is a student and under supervision is to be part of the treament offered. With full revelation of this information to the client, there is no reason that Mary cannot learn the ropes of her profession while continuing to provide clinical services to clients and maintaining her association with her supervisor. Consider the second legal point raised by this “dilemma.” Can Jade offer her field student the chance to undergo psychotherapy with this service provided directly by Jade herself. I am confident most readers will quickly note that there is a profound legal problem connected with this suggestion — the issue of an inappropriate dual relationship between supervisor and student — which not only excludes the possibility that Jade can provide competent, effective mental health services to her proposed client but also casts doubt upon Jade’s professional competence as a clinical social worker. More than anything, I hope that discerning readers will recognize the legal problems inherent in the above scenario. The original author of this scenario proceeded to analyze it using ethical standards that presumably apply to this dilemma. In reality, these standards become peripheral to the analysis once the legal issues have been identified. For more information concerning informed consent and dual relationships, please take a look at the law based decision making framework offered at this website. Comments anyone?
The website and blog frequently discuss the importance of coming to an understanding about what it means to be the “client” of a mental health provider. Specifically, a mental health practitioner cannot lawfully provide services to a person unless and until a professional-client relationship has been formed. This means voluntary acceptance of the relationship by both parties (or, in some instances, substituted acceptance of the relationship by someone acting on the client’s behalf).
What does the NASW Code of Ethics say about the meaning of the term “client”? In a word, nothing. Here’s what the NASW Code does say about clients in its preamble:
‘Social workers promote social justice and social change with and on behalf of clients. ‘Clients’ is used inclusively to refer to individuals, families, groups, organizations, and communities.’
Without the most minimal effort to define the meaning of the term “client,” the NASW Code of Ethics leaves social workers with little or no understanding of what the legal ramifications of initiating a client-professional relationship are. For that matter, the NASW Code leaves social workers without any enforceable guidelines explaining the impact of clienthood on clients and the corresponding duties that it places on professionals. This fact provides yet another reason for mental health practitioner to adopt the law based decision making system advocated by this website and blog in every aspect of daily practice.
This blog and the website associated with it present a law based strategy for the resolution of practice dilemmas in the mental health professions. One of those professions is social work, whose members are bound by the tenets of the NASW Code of Ethics. Why do we reject the usefulness of the NASW Code as a decision making tool? One of the reasons is the abject failure of NASW to plainly and unequivocally explain exactly what social work is. Indeed, as NASW’s explanation of the “definition” of social work shows, it is unwilling to inform social workers in simple, plain, succinct language exactly what the specific parameters of social work practice are:
“The primary mission of the social work profession is to enhance human wellbeing and help meet the basic human needs of all people, with particular attention to the needs and empowerment of people who are vulnerable, oppressed, and living in poverty. A historic and defining feature of social work is the profession’s focus on individual wellbeing in a social context and the wellbeing of society. Fundamental to social work is attention to the environmental forces that create, contribute to, and address problems in living.
Social workers promote social justice and social change with and on behalf of clients. “Clients” is used inclusively to refer to individuals, families, groups, organizations, and communities. Social workers are sensitive to cultural and ethnic diversity and strive to end discrimination, oppression, poverty, and other forms of social injustice. These activities may be in the form of direct practice, community organizing, supervision, consultation administration, advocacy, social and political action, policy development and implementation, education, and research and evaluation. Social workers seek to enhance the capacity of people to address their own needs. Social workers also seek to promote the responsiveness of organizations, communities, and other social institutions to individuals’ needs and social problems.”
The above definition is broad enough to encompass any profession know to humankind. In its overbreadth it expresses no clear meaning. As we make the case in this blog and website, without a concrete, working definition of social work practice, it is impossible to bind social workers to the standards expressed in the NASW Code of Ethics. In contrast, the law defines social work in terms of the tasks performed by social workers: providing direct mental health treatment, investigating allegations of child and elder abuse and neglect, and related responsibilities. Therefore, we urge that social work practitioners, together with other mental health professional, have much to gain from considering a law-based decision making strategy to address everyday practice dilemmas.
I am frequently asked by students why I recommend a law-based system for decision makin in the mental health professions, including social work, psychology and counseling. The answer, without oversimplifying it, is that professional codes of ethics impart very limited assistance to professionals and students who face important practice decisions every day in their professional lives.
As a primary example of the NASW Code of Ethics’ failure to render adequate assistance, let’s start with the statement made in the Code’s preamble, which warns us that only some of the standards contained in the code are enforceable! The rest are only aspirational principles that we should try to uphold. This is an amazing abdication of any responsibility for holding social workers accountable for certain basic standards of practice.
Consider also the NASW Code’s announcement in its opening pages that it declines to define what it means when it uses the term client. We’re left without any understanding of the responsibilities that emanate from the social worker-client relationship and are led to believe instead that social workers have unlimited responsibilities to persons, communities, and society without any limitation. Indeed, according to the NASW Code, the world is our client! This is obviously ridiculous and unenforceable.
I’ll be commenting in future posts about weaknesses in professional ethical codes and ahat we can do to ensure that our professional decision making is law based, rational and reasonable, and, morover, that it advances the real ethical values of our variuos mental health professions. In the meantime, please examine other posts on this blog, together with the rest of the website http://mentalhealthlaw.usm, to learn more about law-based decision making.