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.
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.
Consider this scenario: you are a direct service provider offering mental health counseling to individuals and families. A young woman and her mother visit your office seeking assistance with their personal relationship. You elect to assess them together during their first visit. Each asserts that she has felt depressed in recent weeks and attributes her sad feelings to the fact that the young woman, who is 30 years old, has had to move in with her mother, 52, after a failed marriage. In talking to mother and daughter together, you reach the clinical conclusion that each may be suffering from mild depression and would benefit most from individual psychotherapy. You practice in a rural community in which the number of clinical providers is small, and you consider the possibility of providing individual services to each woman separately. Can you do this legally and does a conflict of interest prevent you from treating each woman separately as an individual client?
In order to address this dilemma, it is helpful to review the material presented in this website concerning the duty to identify the primary client. You reach the conclusion that your clinical assessment reveals that each woman would benefit most from individual psychotherapy, and therefore you are willing — at least preliminarily — to assume a therapist-client relationship with each separately. Is there a conflict of interest presented by this choice? In theory, your treatment of one family member could well cause you to receive information and to allow your independent treatment stance to have an impact on the other. For example, the daughter might assert that her mother’s “abusive attitude” is at least partially responsible for the difficulties she is now experiencing in her life. Similarly, the mother might assert that her daughter’s move back into her household has created tensions between them that are leading to the emotional problems being experienced by both women. Is it possible for you to administer clinical services to both women without allowing information gleaned from each client to influence your treatment of the other? In view of this problem, wouldn’t the provision of services to each woman run counter to best practice standards governing the avoidance of conflicts of interest?
It would be quite rational to answer this question in the affirmative and simply discontinue services with one, or perhaps both, women, in the reasonable belief that your ability to provide independent clinical services will be compromised if individual treatment of both continues. On the other hand, let’s deal with the reality that both women are in need of services that will likely not be provided at all — given the unavailability of clinicians in your rural community — if you don’t agree to provide these services to each woman yourself. This is a problem that rural practitioners face every day, and it is clear that professional codes of ethics often give confusing and sometimes contradictory advice on the management of such situations. If one examines the duty to seek informed consent, a topic discussed in further detail in this website, one finds that it is prudent both clinically and professionally to discuss the risks and possible benefits of providing services to both women before a decision is made either to continue independent services or discontinue them. If the clinician thoroughly discusses the potential dangers of treating both women with each client — including the possibility that the clinician will allow revelations from interactions with each client to influence the practice stance assumed with the other — it may well be concluded that this risk is worth assuming. The reason for this is that the risk of providing services under these circumstances is worth assuming when one considers that avoiding the risk entirely will result in no services being provided at all. After a thorough discussion of the risks involved, a competent mental health practitioner may well reach the conclusion that the decision to continue separate clinical services with both women is both reasonable and in both clients’ best interests. Comments from readers on this discussion are greatly appreciated!
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?