What is the future of Roe v. Wade?

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.

Everything You Always Wanted to Know About the NASW Code of Ethics But Were Afraid to Ask: What Truths the Code Reveals

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.

Conversion Therapy: A Violation of Informed Consent

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.

Is substance abuse by a parent proof positive of child abuse or neglect?

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?

Can misleading advertising violate informed consent?

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.

How far “to go” about a colleague’s unethical/unlawful behavior.

A well-known and standard ethics text offers the following scenario:

A clinical social worker at a community mental health center has a caseload that includes clients who have been diagnosed with symptoms of schizophrenia and affective disorders. The social worker’s co-worker discovers that the social worker has been inflating the number of overtime hours she has worked and the amount of her reimbursable travel expenses. The co-worker is aware that Ms. Holmes has been having some financial problems.

The scenario presented above asks the reader to explore the obigations, if any, that the co-worker has to take any action concerning the matter of which he has knowledge. Reference is made to the NASW Code of Ethics, and the reader is asked to consider which of any code provisions provides guidance in this scenario as to exactly which steps to take and, specifically, “how far” the matter should be taken.

If one immediately recognizes the above dilemma as primarily a legal one because of the unlawful practice witnessed by the co-worker, then the conduct observed makes any provisions contained in the Code of Ethics quite beside the point. Many employers have a formal policy that requires workers to advise the employer or the worker’s immediate supervisor when unlawful conduct is observed within the agency. In the immediate example, it could well be observed that if the co-worker fails to report his colleague’s misconduct, the co-worker himself may well become an accessory to the crime, depending upon the specific provisions of the law in effect in the state in which the scenario has taken place. In any event, the co-worker must report the matter to a supervisory authority in the interest of ensuring that the agency’s overall employment reports are free from false representations. That legal responsibility is clear, but the additional question might be asked, is there ever a duty to report the misconduct to a police authority outside the agency? Certainly if the supervisor ultimately in charge of keeping employment records refuses to act or denies the reality that a false report has been prepared, resulting in the possibiity that a false report could be allowed to stand, then the co-worker could reasonably be observed to have a legal obligation requiring him to report the matter outside of the agency. In this instance, it would seem that the co-worker’s legal responsibility to the public plainly trumps any internal agency policies governing the reporting of misconduct by agency workers. Any thoughts on this one? Please post!

Managing a potential conflict of interest in mental health services

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!

Freedom of speech in school settings: A fundamental right

A story from today’s headlines reveals that a 16-year-old student has been banned by his Ohio school district from wearing a shirt with the insignia of a fish and the slogan “Jesus is Not a Homophobe.” The student’s explanation for wearing the shirt is quite simple: “I’ve been bullied and called names and I wanted to wear this shirt to promote respect for all students, gay or straight.” The student has sued to reverse the school district’s ruling. The legal aspects of this troubling decision are fairly easily analyzed by reference to this website’s discussion of the duty to the duty to treat clients with due process. The present case offers a rather clear example of the denial of a student’s fundamental 1st Amendment right to free speech as well as his 14th Amendment-protected right to privacy. The student has a patently reasonable explanation for wearing the shirt: He is a gay student who wants to make a basic political assertion. Under the doctrine of substantive due process, discussed in this website’s section on the Constitution, in order to justify impinging on this right the school must demonstrate a compelling state reason to do so. No doubt the district will attempt to defend its decision that the shirt is disruptive, violates restrictions on shirts with sexual content, and for related reasons. A review of this website’s discussion of substantive due process reveals that it would seem apparent no such justification is present for banning the written expression contained on the shirt. Anyone out there have an opinion on this case? Please share it!

Revisiting the duty to report suspected child abuse: another case scenario

It is truly remarkable how many standard ethics textbooks present fictional factual scenarios in which the reader is urged to read each scenario and make a decision about whether the facts are enough to warrant a report to a child protective service organization. As it has been noted before, the duty to report is strictly a legal consideration which arises from an analysis of whether the facts as presented set forth a reasonable suspicion that a child has been/is in danger of being abused or neglected. Here’s yet another example of a factual scenario, a version of which appeared in a highly regarded ethics textbook:

Jana, a social worker, has an apartment immediately next to one in which a young woman lives with her two, pre-school aged children. Lately, Jana has observed that the neighbor’s garbage contains nothing except liquor bottles. Recently, Jana rode in the building elevator with the woman and her children and noted that the woman smelled of alcohol and the children’s clothes were dirty. On a recent evening, Jana heard through the wall into the adjoining apartment both children crying and the woman screaming very loudly. The following morning, when Jana observed the whole family in the hallway, she noticed a dark mark on the arm of the four-year-old child which could either have been dirt or a bruise inflicted by the mother.

Is there a duty to report suspected abuse or neglect here? Clearly the specific legal duty to report depends upon whether Jana lives in a state in which the duty is imposed on all members of the public, or just on certain individuals, such as health care professionals and teachers. Secondly, we must assess whether a reasonable suspicion that abuse/neglect has occurred. Reasonable suspicion can be likened to a hunch — a good faith belief founded on some evidence that goes beyond the observer’s own  subjective guesswork. This means that the observer must witness some act or condition, even if ambiguous, that could represent a dangerous situation for children. It is important to remind the reader that this is a legal standard, not an ethical one. In the preceding example, the most problematic element is Jana’s witnessing of the smell of alcohol on her neighbor’s breath while in the presence of her young children. If there is enough evidence here to convince Jana that the woman is drunk while in the presence of her toddlers, the reasonable suspicion test would seem to be satisfied. The other observations seems at best too ambiguous to present or add to a reasonable suspicion that the children are being abused/neglected. Moreover, were Jana living in a state in which the duty to report suspected abuse applies only to health professionals, it seems to make sense nnonetheless to impose this standard on persons who have the training required to assess abuse or neglect, even if the witness’s observations are made during a time in which the person is acting as a private citizen, and not while working at her place of employment.

Blog readers are invited to share their own opinions. Additionally, readers are invited to example this website’s (mentalhealthlaw.us) discussion of the meaning of the legal standards governing practice in mental health, including the duty to practice reasonably competently.