Managing Ethical Challenges in Clinical Work with Children and Families

1. Managing Ethical Challenges in Clinical Work with Children and Families Gerald P. Koocher, PhD April 26, 2013 www.ethicsresearch.com

2. Psychological work with families differs significantly from work with individuals in many respects that have important ethical implications.

3. Families often include… • People with non-congruent, competing, or conflicting interests. • People who wish to keep secrets from each other. • People who do not wish to be totally candid with each other. • People with differing levels of decisional capacity and dependence.

4. People with non-congruent, competing, or conflicting interests. It may surprise you to know that, contrary to your experience, you’re actually very happily married.

5. People who want to keep secrets from each other.

6. People who do not wish to be totally candid with each other. • Do I look fat in this? • Aren’t my parent’s wonderful? • I’m right, aren’t I? “Is this a good time to have a big fight?”

7. Grasping the fundamentals and classic court cases provides a guide to ethical practice by: Understanding parental rights Understand protections afforded to children Obeying the law. Understanding the Legal Status of Parents and Children

8. Parent’s right of control:Pierce v. Society of Sisters (1925) • On 7 November 1922, the voters of Oregon passed a referendum, the Compulsory Education Act. The referendum was primarily aimed at eliminating parochial schools, including Catholic schools. Many Protestants felt that religious schools prevented assimilation • Private schools such as those run by the Society of Sisters of the Holy Names of Jesus and Mary were concerned about the right of parents to send their children to such schools as they saw fit, including religious schools.

9. Meyer v. Nebraska (1923) • Robert T. Meyer, the Plaintiff, was tried and convicted in the district court for Hamilton county, Nebraska, under an information which charged that on May 25, 1920, while an instructor in Zion Parochial School he unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of 10 years, who had not attained and successfully passed the eighth grade.

10. Limits on Parental Control:Prince v. Massachusetts (1944) • Sarah Prince, aunt and custodian of Betty M. Simmons, age nine had: • (1) refused to disclose Betty's identity and age to a public officer whose duty was to enforce the statutes; • (2) furnished Betty with magazines, knowing she was to sell them unlawfully, that is, on the street; and • (3) as Betty's custodian, permitted her to work contrary to law. • All plaintiffs were members of the Jehovah's Witness faith and both Mrs. Prince and Betty testified they were ordained ministers.

11. Mr. Justice Rutledge delivered the opinion of the Court’s 5-4 majority • “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”

12. In re: Gault • The Supreme Court decision which established that under the Fourteenth Amendment, juveniles accused of crimes in a delinquency proceeding must be accorded many of the same due process rights as adults such as the right to timely notification of charges, the right to confront witnesses, the right against self-incrimination, and the right to counsel.

13. Mr. Justice Fortas delivered the opinion of the Court’s 8-1 majority • Under our Constitution, the condition of being a boy does not justify a kangaroo court.

14. Tinker v. Des Moines Independent Community School District (1969) • In December, 1965, Des Moines, Iowa residents John Tinker (age 15) and Mary Beth Tinker (age 13) and their friend Christopher Eckhardt (age 16) decided to wear black armbands to their schools (high school for John and Christopher, junior high for Mary Beth) in protest of the Vietnam War. They were suspended.

15. Mr. Justice Fortas delivered the opinion of the Court’s 7-2 majority. • “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

16. How are Child Clients Different from Adults? • Legal Status • Minors and Emancipated Minors • Example: Dominique Moceanu • Socialization Influences • The case of Ricky Ricardo Green • Time perspective • Concept manipulation abilities • Piagetian and other Developmental Frameworks

17. Children’s Competencies

18. What are you asking for when you say, “Is that okay with you?” • Consent • Competent, Knowing, Voluntary • Assent • Veto Power • Therapeutic versus non-therapeutic context • Permission • Proxy Consent • Substituted Judgment

19. Let’s clean up the terminology • “Informed consent” as a tautology • By definition, consent must be an affirmative, knowing, voluntary act. • Passive consent as oxymoron • Consent cannot occur via inaction. • Delancy et al. v. Gateway School District • Gateway settles parents' suit over child queries;February 13, 2001, Eleanor Chute, Post-Gazette; parents complained their elementary children had been asked personal questions without permission in 1995 settled lawsuit yesterday, includes $225,000 payment • People participate in studies, subjects do not.

20. Essential Components of Informed Decision Making • Information • Access • Understanding • Comprehension • Competency • Voluntariness • Decision Making Ability • Reasoning Capacity

21. Children’s Competence to ConsentAsk yourself: Does the child have… • the ability to understand information offered about the nature and potential consequences of the pending decision? • the ability to manifest a decision? • the ability to make an appropriate decision on reasonable bases?

22. Important Case Lawon Decision Making and Children • Prince v. Massachusetts, 321 U.S. 158 (1944) • Parents may not make martyrs of their children • Parham v. J.R., 442 U.S. 584 (1979) • Fare v. Michael C., 442 U.S. 707 (1979)

23. How do the APA standards guide us?

24. Focus on • Competence • Confidentiality • Informed consent • Role clarity • Vigilance, monitoring, and active management as change occurs or new issues arise

25. Sharing information about children’s psychotherapy with their parents • Basic concept: therapy has to be safe for all participants and parents need to know info about their children that allows them to fulfill parental responsibilities.

26. Sharing information about children’s psychotherapy with their parents • Children should have consensual confidentiality rights. • Parents should have regular progress reports. • Therapists may breach a child’s confidentiality non-consensually to prevent serious harm, disclosing only info necessary for parents to protect. • Clarify meaning of serious harm to avoid confusion.

27. Practitioner Competence

28. APA Ethics Code Standards on Competence • Psychologists provide services, teach, and conduct research with populations and in areas only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study, or professional experience.

29. APA 2010 Code Standards on Competence • Where scientific or professional knowledge in the discipline of psychology establishes that an understanding of factors associated with age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, or socioeconomic status is essential for effective implementation of their services or research, psychologists have or obtain the training, experience, consultation, or supervision necessary to ensure the competence of their services, or they make appropriate referrals…

30. APA Code Standards on Competence • Psychologists planning to provide services, teach, or conduct research involving populations, areas, techniques, or technologies new to them undertake relevant education, training, supervised experience, consultation, or study.

31. Confidentiality in Child Therapy

32. Who is the client? • To whom do you believe you owe a professional duty? • Who may believe that you owe them a professional duty? • What have you done to clarify the nature, extent, and duration of such obligations? • What documentation have you retained to document any of these points?

33. To whom do I owe a duty of care and in what hierarchical sequence? Society at large? All of the above?

34. Privacy Confidentiality and Privilege

35. Privacy, Confidentiality & Privilege Domain Breadth Privacy A constitutional right Confidentiality A professional standard Privilege A narrow legal protection Excellent confidentiality source: http://jaffee-redmond.org/

36. Privacy • The Constitutional right of individuals to choose for themselves whether, when, and how private information will be revealed. • The word privacy does not appear in the Constitution, but we can infer the concept in: • Amendment 3 – quartering of soldiers in homes • Amendment 4 – search and seizure • Amendment 5 – trial and punishment • Amendment 15 – right to vote regardless of race, color, or previous servitude

37. Confidentiality and Privilege • Confidentiality: The duty imposed on professionals to keep information disclosed in professional relationship in confidence. • Privilege: The patient’s right to keep confidential communications from being disclosed in a legal proceeding.

38. Principles underpinning exceptions to privacy protections • When there are competing social policies Parens patriae doctrine(i.e., the parentalistic state as the guardian or protector of the incompetent) • Police powers and confinement may be used to protect (e.g., Joyce Brown, AKA: Billie Boggs v. Mayor Koch, 1987). • Legislatures have enacted protective mandates.

39. When a patient’s behavior becomes inconsistent with social policies supporting privacy. No Yes No

40. APA’s fundamental statement on confidentiality • Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship.

41. Limits on Confidentiality per APA Ethics Code • Psychologists discuss with persons (including, to the extent feasible, persons who are legally incapable of giving informed consent and their legal representatives) and organizations with whom they establish a scientific or professional relationship • (1) the relevant limits of confidentiality and • (2) the foreseeable uses of the information generated through their psychological activities.

42. Mandated abuse or neglect reporting • 1.03 Conflicts Between Ethics and Organizational Demands • If the demands of an organization with which psychologists are affiliated or for whom they are working…conflict with this Ethics Code…clarify the nature of the conflict, make known…commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards… Under no circumstances may this standard be used to justify or defend violating human rights…

43. APA’s position regarding mandated reporting statutes • If psychologists' ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict. If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority.

44. Mandated reporting variations • Children • Elders • Dependent persons • Physically Disabled • Mentally Disabled • Unsafe drivers

45. Ashburn Psychological Services sued over toddler's death • February 19, 2013 - 02:21 pm • WASHINGTON (AP) - The mother of a 15-month-old boy who died on a court-ordered visit to his father has filed a lawsuit against the psychologist who sanctioned the visitation. • The child died on the fourth unsupervised visit, and Joaquin Rams, his father, has been charged with murder.

46. Hera McLeod of Gaithersburg, Md., filed the $20 million suit Tuesday in Fairfax County against Ashburn Psychological Services and psychologist Margaret Wong Alleging professional negligence resulting in wrongful death. • McLeod says Wong's report was instrumental in a judge's decision to grant unsupervised visitation of Prince McLeod Rams to his father, Joaquin Rams. • The child, Prince, died on the fourth unsupervised visit, and Joaquin Rams has been charged with murder. Authorities say he drowned the boy to collect a life insurance policy. • McLeod says the psychologist ignored clear warning signs that the father was dangerous. The psychology practice declined comment Tuesday.

47. Ithaca therapist refuses to turn over notes, charged with contempt6:02 PM, Jan 18, 2013   |   • Dianea Kohl spent more than 25 years as a state-licensed marriage and family therapist without encountering legal troubles. But in 2012, the Ithaca resident faced court battles in two area counties involving what she considers a violation of the sanctity of the therapist-client relationship — a violation she believes could have a chilling effect on other counselors and their clients. • “There are only two exceptions to confidentiality — only if I have knowledge of child abuse, or if someone is actively suicidal or homicidal can I breech confidentiality,” Kohl said. • Kohl first ran into trouble early last year when she was called to testify in Steuben County Family Court regarding a child custody case.

48. Both the father involved in the dispute and his 3-year-old child had been to court-ordered therapy sessions with Kohl. Christine Valkenburg, the law guardian who represented the child, asked that Kohl provide the case notes from those sessions. Instead, Kohl presented a summary of those notes to the court. • “The law guardian wanted all of my therapy notes. Why did she want my notes unless she thinks I’m hiding something?” Kohl said. “She could not give a reason why she wanted to see the notes. The law guardian went to the judge, and the judge issued an order. That’s when I got my own lawyer. • “I refused to give up my notes. My ethics say I am not to do that,” she said. “I take lots of fragmented notes. They would not be helpful to the lawyer.”

49. Opposing views • Valkenburg didn’t see it that way, and neither did Family Court Judge Joseph Latham. Latham signed a contempt-of-court order against Kohl in February, and the next thing Kohl knew, she was under arrest and in handcuffs. • “I was arrested June 2. There had been a warrant out since February, so I thought they decided not to do anything,” Kohl said. “I was flabbergasted when a state trooper handcuffed me in broad daylight on Route 13. I was shocked.” • Kohl eventually compromised and gave her notes directly to Latham to review. Kohl had discussed the order with her client and received the judge’s promise that only he would see them and that some text would be redacted.

50. New York Secure Ammunition and Firearms Enforcement Act of 2013 (NY SAFE ACT) • Mental health professionals will be required to report to local mental health officials when there is reason to believe a patient is likely to engage in conduct that will cause serious harm to themselves or others. This information will then be crosschecked against the new comprehensive, and regularly updated, gun registration database. If the patient possesses a gun, the license will be suspended and law enforcement will be authorized to remove the person's firearm.