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Revisiting the duty to report sexual abuse

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On 12/9/11 I posted a dilemma entitled “the duty to report sexual abuse” in which I presented a hypothetical dilemma which raises questions associated with the law governing the duty to report child sexual abuse. In light of an interesting series of comments that the dilemma inspired, I’d like to take fresh look at the dilemma. Here it is, together with my original commentary: I recently came across an astounding scenario in a standard ethics textbook. I use the term “astounding” because it presents an example of a clear, legal problem that is in reality not an ethical dilemma at all! I’m going to paraphrase the dilemma as follows: You are a mental health professional conducting research concerning family relationships involving at least one minor child. As part of the research design you interview each family member personally. You also interview the family as a unit. During one such interview, with Mary, a nine-year-old, she tells you that her fifteen-year-old sister, Clara, has sex with her stepfather, Igor. What would you do? The answer is clearly driven by the law. Most states impose a duty on members of the public to report suspected child abuse, including sexual abuse. Even if it were not a state-imposed requirement, the legal duty to practice reasonably competently as a mental health professional–as discussed in this website– demands reporting of the incident. The comments posted by a reader raised an interesting question about whether Mary’s comments could be usable by the researcher in light of the fact that they might represent a “hearsay” statement. (A hearsay statement is an out of court statement used in court to prove the truth of the statement.) In other words, the poster was suggesting that Mary’s statements might reflect observations of her sister Clara’s abuse that are hearsay statements and therefore unusable. In our case, it is important to note that hearsay statements are often admissible during the preliminary hearing in any child abuse case in children’s court (the preliminary hearing, which usually occurs about ten days after child protective services has concluded that there is a reasonable suspicion child abuse has occurred, offers an opportunity for CPS to present a court with the evidence CPS is relying upon to prove that the at-risk child is in need of protection). IThe preliminary hearing is usually the first step in any child abuse proceeding. Therefore, Mary’s statements could have an evidentiary use if and when a child abuse proceeding were instituted. The reason hearsay could be permitted at this stage is that the court typically uses a reduced evidentiary standard — this is often referred to as the “reasonable suspicion” standard — to ensure the safety of the child at this early stage. Later on in the court proceedings when the alleged abuser has a fuller opportunity to respond to the allegations, the hearsay might well be inadmissible. All of this talk about hearsay ignores an important point: Mary’s comments about having been exposed in some way to sexual behavior could well make a mental health professional reasonably suspicious that Mary herself has been victimized. This is an important reason why it is imperative that the researcher reveal to CPS or to a police authority the things Mary has said. This is the only safe way in which the child’s comments can be investigated quickly, safely and th0roughly.

Adolescent sexual activity, birth control, and confidentiality

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Happy new year, everyone! I’m back with my take on a practice scenario that has been portrayed in several different ways in several ethics textbooks as an “ethical dilemma.” As with most of the examples pesented on this blog, this dilemma in actuality presents a legal problem that can be resolved by reference to the law based decision making system offered on this website. Here it is:

Polly Davis is a 15-year-old teen who is not getting along with her parents. She has run away from home twice and her parents have taken her to a social worker, Molly Truett, for mental health services. The social worker has seen Polly alone several times. During therapy, Polly tells the social worker that she is sexually active and would like some help in learning how to avoid getting pregnant.  In separate conversation with Polly’s parents, Molly gets the impression that the parents are well aware of Polly’s sexual activity. Should the social worker help Polly obtain birth control pills, even though her socially conservative parents have told the social worker that they are against birth control? Is it proper for the social worker to ignore the parents’ values? Put differently, to whom is Molly accountable?

This dilemma can be resolved in a straightforward manner if one remembers the legal duties, including a) the duty to identify the primary clients and b) the duty to preserve confidentiality, that a psychotherapist owes to her clients. In this scenario, Polly is the primary client and so Molly owes her and only her a legal responsibility to protect her best clinical interests. This means that Molly must practice with reasonable competence, especially in the manner she manages the confidentiality issue. In this scenario, Polly probably has the mental and legal capacity to be protected by the right of confidentiality so that revelation of the information she has shared with Molly would be improper and unlawful. Indeed, Molly owes Polly the clearcut responsibility to keep Polly’s request secret and help her obtain the birth control assistance she needs without interference from the parents.

As always, your comments are invited!

Exploring the right of privacy and self-determination

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It is an oft-cited position presented in this blog and website that the law based decision making system offered here provides the most effective and efficient approach to the resolution of practice dilemmas in the mental health professions. A frequent observation made here also suggests that problems that present themselves as “ethical dilemmas” often are discovered to have clear legal characteristics. Several previous blog posts have identified examples of this reality. A dilemma frequently used as a practice example in ethics textbooks concerns the right to self-determination enjoyed by clients. Consider the following ethical dilemma and consider the legal implications that exist at its heart: Ephraim Zinder is a mentally ill client of a community mental health center that is funded in part by various state and federal government offices. Ephraim suffers from schizophrenia, is presently living in a group home, and has been homeless at several earlier times in his life. He spends his days walking the streets of his town and has developed an amazing ability to find garbage dumpsters adjoining local restaurants in which discarded food can often be found. His social worker at the community mental health center has talked to him about developing safer eating habits, but Ephraim simply explains that he prefers to eat food from the dumpsters. When he is offered meals at his group home, Ephraim sometimes reports that he is “full” from the dumpster meals he has eaten. Does the social worker have any obligation or duty to intervene on Ephraim’s behalf in order to stop him from engaging in a practice which arguably could be seriously dangerous to his health? The discerning decision maker will quickly note a legal principle — the constitutional right to privacy — that plainly applies to this case. This right is described by courts as stemming from the 14th Amendment’s principle of substantive due process (please see the website’s discussion on this principle). If substantive due process is applied in the present scenario, Ephraim has a right to perform the essential tasks of his life — including eating — in a manner he sees fit, unless the social worker or the state-sponsored agency can find a compelling state interest that demands intervention. Is there one here? Ephraim’s social worker is of the opinion that Ephraim presents no risk of severe harm to himself or others, even though the ongoing eating habits he has displayed is unhealthy. Is is therefore appropriate to forcibly stop Ephraim from engaging in his eating pattern? In this dilemma, substantive due process supports the position that a person may engage in habits that seem unusual or even bizarre to the rest of the community, but which represent the preferred behavioral routine of the person. Forced government intervention in this matter, through the government social worker and agency, could well be considered to violate Ephraim’s right to personal privacy. How many of us have eating habits which might be considered unhealthy, but which we engage in routinely? Is government intervention warranted here? The majority of us would probably assert that it is not. As always, your comments are welcomed!

Confidentiality after a client’s death

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Here’s an interesting case scenario that was presented in an ethics textbook as an example of an ethical dilemma. You’ll find rather quickly that it has a simple legal resolution:

You are employed at a community mental health center and delivered services to a client. The client has been killed in an altercation at a local tavern. A reporter for your town’s newspaper seeks you out for information about your client because there have been rumors that your client had a history of violence and had been abusive to his wife and children. The reported wants to know if this is true because, if it is, it may have some relevance in assessing the guilt of the person who killed your client. Should you cooperate with the reporter?

Of course not! The law of confidentiality requires that a client’s confidences be maintained even after the client dies in the interest of protecting the client and his family. This simple case dilemma, like many of those presented on this blog, presents a legal problem that can be resolved by applying the duty to keep a client’s confidences unless a legal exception (the client threatens violence to himself or others, for example). Please read this website’s discussion about confidentiality for more information about confidentiality.

Comments on this scenario are invited!

The duty to report sexual abuse

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I recently came across an astounding scenario in a standard ethics textbook. I use the term “astounding” because it presents an example of a clear, legal problem that is in reality not an ethical dilemma at all! I’m going to paraphrase the dilemma as follows:

You are a mental health professional conducting research concerning family relationships involving at least one minor child. As part of the research design you interview each family member personally. You also interview the family as a unit. During one such interview, with Mary, a nine-year-old, she tells you that her fifteen-year-old sister, Clara, has sex with her stepfather, Igor. What would you do?

The answer is clearly driven by the law. Most states impose a duty on members of the public to report suspected child abuse, including sexual abuse. Even if it were not a state-imposed requirement, the legal duty to practice reasonably competently as a mental health professional–as discussed in this website– demands reporting of the incident.

Comments are invited!

Defining “client”: What does the NASW Code of Ethics say?

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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.

Revisiting the failure of the NASW Code of Ethics

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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.

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The failure of the NASW Code of Ethics

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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.

Guest question: Spot checks on public housing residents

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I have a couple of social welfare policy-type questions for you � if you�ve time, give me your two cents, would
you? I know in the 1960s a number of behavior-management type rules for AFDC were struck down by the courts � man in the house rules, and I though suitable home rules and such. My recollection was that prior to this welfare workers could check homes for housekeeping issues (part of the �suitable home�) � and that this could have consequences. So � (a) am I remembering this right, or making it up? (b) do you know if these practices were also struck down in 1960s?

(c) IF a and b are yes; what
would that mean for my understanding of a practice of a local non-profit
homeless service agency doing regular checks of their clients homes to make
sure they are complying with the lease, don�t have other people there, and are
keeping it clean? I�m doing some reading that suggests there�s some sort of different standards for what GOVERNMENTS can do (a la welfare caseworkers) vs what private service providers can do. I don�t know if
I believe this —- coming from a book edited by Lawrence Mead.

Please let me know if you have answers or suggestions on
where to find an answer.

Webmaster�s
response:

This question presents the opportunity once again to point out the pervasive importance of the constitutional right of privacy, as protected by the 14th amendment. The
principle of substantive due process suggests that a welfare client’s right to
privacy is invaded if a state agency seeks means (i.e., spot home checks and
“man in the house” rules fall into this realm) of invading the
client’s terrain without a compelling state justification for doing it. Here,
it would be hard for any state agency to justify these serious home invasions
in light of the fact that there are very likely less intrusive means of
examining the client’s general compliance with agency policies.

There is some difference in what state agencies
can do, as opposed to what private agencies can do, in that public agencies
must answer directly to the constitutional principles noted above, while
private agencies generally need not. It would seem pretty feasible to me for a
homeless service agency to contract with its clients to permit the agency to
perform spot home checks as a condition to providing services.

On academic behavioral codes and “counseling out”

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I have recently found myself participating in several group discussions concerning the subject of how we social work academics should go about drafting behavioral codes for our schools. Some have suggested adopting very inclusive codes that attempt to cover every possible instance of behavioral misconduct, including such things as “unprofessional use of speech,” “‘bad-mouthing’ of professors and schools,” and other questionable categories. Some have expressed the concern that failing to address sufficiently certain instances of behavioral misconduct might leave such behavior unchecked. I believe strongly that an analysis of 1st and 14th Amendment constitutional protections compels us to conclude that these provisions protect a student’s right to say and write many things that might make the majority of us unhappy. I therefore feel that a policy of “less is more” leaves schools as well as students better protected. Specifically, I think that limiting the definitional scope of behavioral misconduct to acts that are clear and unambiguous — including disruption of class and field environments, hate speech that is overtly threatening, plagiarism, as well as several related areas — protects schools from constitutional challenge and also secures the speech and privacy rights of students under the Constitution. I want to note that the impulse to regulate behavior as thoroughly as possible is understandable. However, overregulating student behavior is something we need to avoid. Put somewhat differently, it does not make sense to create important policy based mainly on a desire to address a very small minority of misbehaving students while purporting to restrict the vast majority of students who are entirely behaviorally compliant. In this sense — and I argue this both as a lawyer and a social worker — a constitutional analysis of limitations on behavioral codes both supplies the right legal “answer” and advances social work goals.