Practice Dilemmas and How to Resolve Them

Practice Dilemmas and How to Resolve Them
The mental health professions are more alike than they are different. Although distinguished by unique jargon, knowledge bases, and historical traditions, they are united in the aim of assisting clients and patients with problems that often cannot be categorized within the confines of one professional discipline. The comparatively recent tendency to treat clients through multidisciplinary team approaches is one reflection of this fact.

These points notwithstanding, professional textbooks and treatises tend to be discipline specific. Moreover, practitioners searching through such tracts often have a hard time finding practical legal and ethical guidance that helps them to resolve practice dilemmas and problems involving clients and co-workers. When such guidance is offered, it is often presented in the context of standards unique to one profession. As a result, common practice dilemmas that may be shared by social workers, counselors, psychologists, physicians, and nurses often appear to have different “answers,” depending on which professional code of ethics or law treatise one consults. This approach is archaic and inefficient.

In response to a significant problem, this website approaches professional choices from a unified perspective that views decision making as an orderly process sharing essential characteristics in all of the mental health disciplines. More than that, it invites the user to interpret professional issues from a communitarian, rather than individualistic, perspective. With these issues in mind, the system for addressing professional dilemmas is useful for practitioners and students in mental health settings. Examples of the use of this system are offered in a variety of practice dilemmas presented in links to this page.

Tools Necessary for Effective Decision Making
Why present a website on decision making and the solving of professional dilemmas? Mental health professionals and students alike understand that making practice decisions involves a consideration of legal, ethics, moral, regional, cultural, and personal factors that affect practice. The decision maker consulting these various reference sources for guidance is faced with the problem of choosing an appropriate legal or ethical principle, or perhaps a more subjective consideration, based on its apparent applicability to the problem at hand. Even worse, the decision maker consulting law treatises is likely to find broad, technical surveys of legislation and court decisions that offer little help in the resolution of everyday practice problems.

Applied law , which is the basis for the decision making system used in this website, means law that is usable and applicable to the solving of daily problems in the mental health professions. Law that is simply explained and practical to apply is more likely to be used by the decision maker as a primary source of reference in addressing common practice dilemmas.

Consider, for example, the case of a child protective social worker investigating the possibility of medical neglect within a Hispanic family in northern New Mexico. The professional fears that a child is being denied appropriate conventional medical treatment for asthma in favor of a faith based remedy that employs the use of curanderos (traditional healers) and herbal therapy. Is this a ground for removing the child from the home? In order to address this question, the professional may consider legal principles (including the law governing the professional’s responsibility to protect vulnerable children), ethical standards (the right of the family to make its own choices concerning health care), regional and cultural standards (the long-standing acceptability of traditional forms of medical treatment within some communities), and personal standards (for example, how the professional’s own ideology views the treatment provided to this child).

The decision maker considering the preceding problem may look to a number of reference sources, including law and ethics textbooks, professional ethical codes, and public agency policies, in order to make a choice about what action to take. The professional is likely to discover quickly that a variety of scholarly textbooks and manuals exist on the market today, with each tending to focus singularly on the subjects of “law” and “ethics” as separate disciplines. Moreover, the professional may find a significant amount of overlap or even contradiction among each of the principles presented in these reference sources. At this point, the professional may be overwhelmed both by the contradictory answers suggested by these textbooks and by their failure to address the “big picture”—what is the best resolution to this problem for all of the parties involved?

In reality, making a decision concerning the above dilemma depends on the professional’s ability to integrate and apply legal, ethical, cultural, and regional considerations in a specific order that maximizes the likelihood that both the professional’s and client’s obligations and interests are addressed fully and simultaneously. This website presents a strategy for doing just that.

Decision Making Framework
Legal Principles to Apply in Any Practice Dilemma

Principle 1: The Duty to Practice Reasonably Competently

When to Consider the Duty. The duty should be considered in all practice situations.

Elements of the Duty. What defines reasonably competent practice varies depending on the profession and the jurisdiction. Generally, however, a professional owes a legal duty to the client to practice reasonably competently according to the nature and scope of one's professional training. This duty extends to the client and also members of the public who can reasonably be expected to suffer if the professional fails to honor this duty (see, e.g. Tarasoff v. Regents of Univ. of Cal.). It also includes the duty to protect vulnerable individuals, primarily children and frail elderly, at risk for physical or emotional abuse, neglect, or exploitation. This duty may include warning appropriate authorities about the existence of the suspected abuse or neglect.

Reasonably competent practice includes the following:

• Conforming to the standards expected of professionals within a discipline, including social work, counseling, psychology, or other mental health profession
• Conforming to the standards expected of professionals within a particular specialty area, such as psychotherapy, counseling, child welfare investigations, research, teaching, and community organizing
• Recognizing the extent and limits of one's training and understanding the scope of any physical or mental limitations affecting the capacity to practice
• Understanding the need to seek consultation or refer a client to another professional when appropriate
• Culturally and regionally competent practice
• The duty to make appropriate documentation and to maintain adequate records concerning services

Reasonably competent administration and supervision include the following:

• The duty to administer programs and services and to supervise employees appropriately, as well as to provide consultation to supervisees whose level of training and terms of employment should reasonably be expected to require it

Finding Local Information About the Duty. The duty is governed by individual licensing standards in each mental health profession, and also by state law, including court-made and legislative standards.

 Principle 2: The Duty to Seek Informed Consent

When to Consider the Duty. The duty should be considered especially in the following situations:

• When working with children, mentally ill, frail elderly, and other vulnerable clients
• When clients have been directly and indirectly solicited by means of professional seminars and advertising
• Whenever there are cross-cultural or language differences between the professional and the client
• When conducting research

Elements of the Duty. It is incumbent upon professionals to obtain informed consent from their clients prior to the commencement of services. In a legal sense, informed consent refers not so much to the document that the client signs agreeing to these services, but rather to the quality and completeness of the dialogue engaged in by the provider and client that forms the basis of their agreement for professional services. This dialogue must address the following points:

The client must have an understanding of the benefits and risks of various services, together with the capacity to understand this information. Capacity means both legal capacity and mental capacity. Informed consent also requires that the client consent to services voluntarily.

The law may modify the legal capacity to consent by either augmenting it or diminishing it; thus, underage minors in some states have the legal capacity to consent to limited mental health treatment and the receipt of contraceptive information. Courts that mandate the receipt of behavioral health services by a client can be thought of as assuming on the client's behalf the right to consent to services.

Finding Local Information About the Duty. The duty is governed by state law, including court-made and legislative standards.

 Principle 3: The Duty to Identify the Primary Client

When to consider the Duty. The duty should be considered especially in the following situations:

• Whenever one is employed as a public agency professional
• When asked as a public agency professional to provide multiple behavioral or human services to individuals and families
• When working with children, frail elderly, mentally disabled, and other vulnerable persons
• When a client has an insurance company or other third-party reimburser responsible for the client's bills or otherwise interested in the client's progress
• When conducting research
• When a court has ordered a client to receive services
• When a client has been referred for services by an attorney or other professional
• When retained to offer an expert opinion concerning a client's condition and/or the services a client has received from another professional

Application to Public Sector Mental Health Professionals. Public agencies, including child welfare bureaus, state hospitals, and mental health bureaus, probation service departments, and educational systems, among others, have legal responsibilities defined by state and federal laws. Their public responsibilities often include the protection of certain classes of vulnerable citizens, and create specific professional-client relationships between the agency and the vulnerable group.

Mental health professionals employed by public agencies agree to accept the agency's legal responsibilities as their own. As examples, in the case of a social worker employed by a child protective service agency, a psychologist, clinical social worker, or counselor employed by a government mental health facility, a public school counselor, or a probation service worker, the professional's primary clients are the vulnerable members of the public whom the provider agency is required to protect, such as abused or neglected children and the elderly. This duty ordinarily supersedes any other professional obligation.

Application to Mental Health Professionals in Private Practice. A mental health professional in private practice must evaluate who the primary client is and what legal obligations are owed to that client according to state, federal, or tribal law. This issue must be considered carefully when the mental health professional is providing services primarily to one person, but the interests of family members or others may be peripherally involved and may threaten to interfere with the duty owed to the primary client.

A professional must also avoid conflicts of interest with the primary client. Conflicts of interest may include social or business relationships with the primary client or a close relation of the primary client's, professional responsibilities imposed by the provider's position that control or limit the nature of services provided to the primary client, and the professional's proprietary or research interest in services that are offered to the primary client.

Finding Local Information About the Duty. The duty is governed by state, federal, and tribal law, including court-made and legislative standards.

 Principle 4: The Duty to Treat Clients and Co-workers With Due Process and Equal Protection

When to Consider the Duty. The duty should be considered especially in the following situations:

• When making decisions as a public agency administrator or employee that may affect clients' rights to benefits or services
• When considering disciplinary action against a public employee
• When making decisions as a private mental health or human service agency administrator or employee that may affect clients' rights to services
• When considering transfer of or disciplinary action against the student or resident of a public or private educational or rehabilitative institution
• When considering the hiring of a public or private agency employee

Elements of the Duty: Procedural Due Process. When the federal government or a state, county, or municipality, through its public agencies and employees, threatens to interfere with a client's or employee's right to life, liberty, or property, the client or employee has a right to procedural due process. Procedural due process means fairness, and generally requires that the affected client or employee must have notice of the government's intent to interfere with an interest and an opportunity to be heard (i.e., a hearing or trial).

Examples of property and liberty rights that require notice and a hearing or trial include the following situations:

• A state employee or federal employee faces disciplinary proceedings
• A state welfare client has benefits suspended
• A veterans' administration mental hospital recommends transfer of a patient
• A public school student is suspended or expelled
• A child welfare authority seeks to change the custody of a child
• A person is arrested and charged with a crime punishable by imprisonment

Elements of the Duty: Substantive Due Process. Some rights are so important that they are considered fundamental. These include all of the privileges guaranteed by the Bill of Rights (such as freedom of speech, religion, assembly, press, and the protection from unlawful searches and seizures) and the right to individual and family privacy (consisting of, among other things, the right to make medical decisions, the right to marry, the right to raise a family, and the freedom from bodily restraint). The government and its agents and employees must never interfere with these fundamental rights unless they can demonstrate a compelling interest. A compelling interest ordinarily means an interest related to the government's responsibility to maintain the health and safety of the public or to perform some important government function.

Examples of the relationship between fundamental rights and compelling government interests include the following:

• A state psychologist usually cannot seek commitment of a patient without demonstrating the patient's violence
• A public school counselor cannot be required to live in the town where the counselor is employed
• A state welfare authority can seek custody of a child it believes is threatened by abuse or neglect
• A city can require protest marchers to register in advance of the demonstration

Elements of the Duty: Equal Protection. Equal protection requires that diverse clients and employees must not be classified on the basis of suspect categories, including race, religion, ethnicity, and national origin. Some classifications, including family income and socioeconomic status, are not considered to be suspect.

Examples of suspect and nonsuspect classifications include the following:

• A state child welfare authority may not deny licensure to foster parents on the basis of their race
• A state welfare authority may deny public assistance benefits to a family whose income rises above the maximum qualifying amount

Elements of the Duty: Civil Rights Legislation. Various laws, including the Civil Rights Act of 1964 and other federal and state legislation extend some of the constitutional obligations and protections imposed by the Fourteenth Amendment to public and private agencies and their clients.

Finding Local Information About the Duty. The duty is governed mainly by the U.S. Constitution (Fifth and Fourteenth Amendments), including interpretive state and federal court decisions and legislation. Additional rules and regulations regarding due process and equal protection are often defined by state and federal agencies, and in some instances extend to private parties providing services under government contract.

 Principle 5: The Duty to Maintain Confidentiality

 When to Consider the Duty. The duty should be considered especially in the following situations:

• At the time informed consent is sought from clients
• Prior to all practice decisions that may interfere with clients' privacy
• Prior to all practice decisions that may test the limits of confidentiality
• When seeking informed consent from all clients
• When working with clients who have insurance companies or other third-party reimbursers responsible for bills or otherwise professionally interested in client progress
• When providing services to a primary client that may also affect the interests of family members or others peripherally involved
• When providing services to children, mentally disabled, or frail elderly for whom a parent, guardian, or other third party has consented to services

Elements of the Duty. The duty to maintain confidentiality generally requires mental health professionals, and especially psychotherapists (social workers, counselors, and psychologists) to keep their clients' statements confidential unless

• The statements concern the intent to commit a violent, criminal, or other harmful and preventable act against an identified person
• The statements invoke the professional's legal duty to report child abuse or neglect
• Clients have waived the right in writing
• Clients have brought malpractice charges or disciplinary complaints

Generally, the right to confidentiality is expressed in terms of a privilege belonging to the client and a duty imposed on the professional. It impacts the extent to which professionals may communicate with courts, police, insurance companies, and other parties concerning the services provided to and the information revealed by the client.

The public policy behind confidentiality is to encourage those in need of mental health and human services to seek them out. Conversely, the public policy behind the limitations on the duty of confidentiality is that professionals who are in a position to help prevent a foreseeable harmful act should have the legal responsibility to take reasonable action to prevent it from occurring.

The client's right to confidentiality assumes the client's capacity to grant informed consent (i.e. the legal and mental capacity to engage in a professional relationship with the provider). For that reason, the duties to seek informed consent and to maintain confidentiality are interdependent.

Finding Local Information About the Duty. The duty is governed by state, federal, and tribal law, including court-made and legislative standards. The limits of confidentiality are defined by the law of the jurisdiction one practices in. Fifty states have legislation governing confidentiality as it applies to social workers, counselors, psychologists, other licensed psychotherapists, medical doctors, clergy, attorneys, and additional mental health and human service professionals. This legislation generally appears either in professional licensing acts or in evidentiary codes.

 Principle 6: Completing a Legal Inventory

 When to Complete a Legal Inventory. A legal inventory should be completed after the mental health professional considers the potential application of each of the preceding legal principles. It suggests that the professional be versed in the state and local court and legislative interpretations of each of these principles, including understanding the protections offered by state constitutions and other regional legislation that may address a problem. Access to legal advice, including agency or personal counsel, concerning all potential legal aspects of a practice decision is especially helpful for this purpose. In completing an inventory, the professional should be prepared to ask several key questions concerning the legal impact of a practice decision. These include the following:

• Will the professional's decision be consistent with all relevant federal, state, and/or tribal law and administrative rules and regulations?
• If the professional is employed by an agency, what are the legal obligations of the professional to the agency and of the agency to the professional?
• Which if any agency rules, regulations, or policies govern the situation or the agency's delivery of client services?
• Which if any agency rules, regulations, or policies define the professional’s job responsibilities or employment contract obligations?
• Is an employee or client seeking to involve the professional in potentially unlawful behavior?
• Which if any state constitutional provisions create fundamental rights? (See Principle 4, the duty to treat clients with due process and equal protection.)

Codes of Ethics

Using Codes of Ethics to Supplement the Legal Inventory
Following completion of the legal inventory, the mental health professional should examine applicable standards from a relevant ethical code. This review may enhance the legal inventory by helping to explain or interpret individual legal duties, particularly with respect to profession-specific practice guidelines. It may also prompt a consideration of additional legal principles that govern a practice situation. For examples of the use of this framework in solving practice dilemmas, please refer to the case scenarios presented on this website.

Note to visitors to this website: The preceding material has been adapted from a book authored by the webmaster, Using the law: practical decision making in mental health (Chicago: Lyceum).