Privacy, Confidentiality, Autonomy

1. Privacy, Confidentiality, Autonomy Balancing client rights and best interests in victim advocacy

2. Privacy refers to that which is held secret; not publicly expressed ; a state of being free from intrusion or disturbance in one’s affairs Privacy is individual in nature What is the meaning of privacy?

3. Tied to our sense of personhood • Bound up with feelings of • pride • shame • fear • boundaries • dignity • respect Why do we value privacy?

4. 1. Reliance on another’s discretion 2. Marked by intimacy or a willingness to confide What is the meaning of confidentiality?

5. Confiding in another requires trust • Keeping a confidence signals trustworthiness of the receiver and respect and care for the one confiding Why do we value confidentiality?

6. The conception of human beings as autonomous arose in the 1700s • The notion of human autonomy is based upon our ability to reason, i.e., think for ourselves • Capacity for rational thinking (i.e., the ability to reason) is essential to the meaning autonomy What is autonomy?

7. Definition of self-determination: Determining one’s own fate or course of action without compulsion • Self-determination reflects an person’s preferences, goals, values concerns • Self-determination may be expressed not only through rational thinking but through our verbally and non-verbally conduct Autonomy and Self-Determination

8. The ability to weigh interests such as privacy and confidentiality against each other and against other interests such as physical and/or emotional health and safety, the strength and commitment to personal relationships, the well-being of other family members, and to arrive at a reasoned basis for choosing a course of action, reflects the exercise of autonomy. The Relationship of Autonomy, Privacy, Confidentiality

9. When a client has the capacity to reason, i.e., to exercise autonomy, law and ethics both favor deference to the client’s decision(s) The Ethical and Legal Significance of Capacity

10. What is it? “Sufficient understanding and memory to comprehend in a general way the situation in which one finds oneself and the nature, purpose, and consequence of any act or transaction into which one proposes to enter “ – Merriam-Webster Dictionary Who determines whether an individual has capacity? Why is an understanding of capacity important? Defining “Capacity”

11. Capacity is the presumption • Lack of capacity is a conclusion • The advocate’s role is to advocate for capacity Considering capacity

12. Functional View (Process Based) Substantive View(Outcomes Based) Two Views of Capacity

13. Legal capacity vs. Clinical capacity Has capacity Diminished capacity Lacks capacity Has capacity Lacks capacity

14. Assure that situation supports (rather than undermines) client’s capacity Advocate for client capacity Supporting Client Capacity: The Advocate’s Critical Role

15. Mandatory reporting of elder abuse • Threat of harm to another When disclosing a confidence is required – 2 examples

16. Susan Mitchell is on the staff of a victim advocate organization. She lives next door to Molly Kramer, a 76 year old woman with physical frailties that make it difficult for her to do her household chores or to get out to do her shopping . Susan looks in on Molly from time to time to help her by running errands and straightening up. Recently she has noticed bruises on Molly’s arm and face. Molly says she fell off a step ladder. However, Sally knows that Molly’s son has a drug problem and that a PFA order had been taken out against him by the mother of his son so he has recently returned to live with Molly. Susan tries to question Molly about the bruises but Molly becomes tearful and denies there’s a problem and pleads “I love my son. Please don’t cause any problems for us.” Must Susan report the suspected abuse to Protective Services? Poll - Case vignette #1

17. Sally Miner is a social worker employed by a home care agency. She visits an agency client, Mrs. Kramer, in her home from time to time to coordinate services. On her most recent visit Sally notices bruises on Mrs. Kramer’s arm and face. Mrs. Kramer says she fell off a step ladder. However, Sally notices that Mrs. Kramer’s son seems to have moved into the house and Mrs. Kramer seems more anxious than on past visits, more fearful and confused and reluctant to talk with Sally. When Sally asks if her son is hurting her Mrs. Kramer becomes tearful but denies there’s a problem, insists she fell, and pleads “I love my son. Please don’t cause any problems for us.” Must Sally report the suspected abuse to protective services? Poll – Case Vignette #2

18. § 15.151. General requirements. (a) Administrators or employees [of a facility] who have reasonable cause to suspect that a recipient is a victim of abuse shall: (1) Immediately make an oral report to the agency. (2) Make a written report to the agency within 48 hours. (b) Employees making oral or written reports shall immediately notify the administrator or designee of these reports. (c) Agencies shall notify administrators, or their designees, and State agencies with facility licensing responsibilities immediately when written reports of abuse are received. (d) Employees required to report abuse may request administrators or their designees to make, or assist the employees to make, oral or written reports Act 13 – Mandated Reporting Requirements

19. Facility—Any of the following: (i) A domiciliary care home as defined in sections 2201-A—2212-A of The Administrative Code of 1929 (71 P. S. § § 581-1—581-12). (ii) A home health care agency. (iii) A long-term care nursing facility as defined in the Health Care Facilities Act (35 P. S. § § 448.101—448.904b). (iv) An older adult daily living center as defined in the Older Adult Daily Living Centers Licensing Act (62 P. S. § § 1511.1—1511.22). (v) A personal care home as defined in section 1001 of the Public Welfare Code (62 P. S. § 1001). Act 13 – Mandatory Reporting – Definition of Facility

20. Employee—Includes the following: • (i) An individual who is employed by a facility. • (ii) A facility contract employee who has direct contact with residents or unsupervised access to their living quarters. • (iii) An individual who is employed by, or who enters into a contractual relationship with, or who establishes any other agreement or arrangement with a home health care agency to provide care to a care-dependent person for a fee, stipend or monetary consideration of any kind in the person’s place of residence. • (iv) A student doing an internship or clinical rotation, or any other individual, who has been granted access to the facility to perform a clinical service for a fee. • (v) An individual, employed by an entity which supplies, arranges for, or refers personnel to provide care to care-dependent persons, who is employed to provide care to care-dependent persons in facilities or their places of residence. Act 13 – Mandated ReportingWho Is an “Employee”?

21. § 15.151. General requirements. (a) Administrators or employees who have reasonable cause to suspect that a recipient is a victim of abuse shall: (1) Immediately make an oral report to the agency. (2) Make a written report to the agency within 48 hours. (b) Employees making oral or written reports shall immediately notify the administrator or designee of these reports. (c) Agencies shall notify administrators, or their designees, and State agencies with facility licensing responsibilities immediately when written reports of abuse are received. (d) Employees required to report abuse may request administrators or their designees to make, or assist the employees to make, oral or written reports Act 13 – Mandated Reporting Requirements

22. If the employee or administrator believes the abuse involves sexual abuse, serious physical injury, serious bodily injury or suspicious death, s/he is also required to make an oral report to law enforcement and to the PDA in addition to the oral and written report to the AAA. Within 48 hours of receiving a report of abuse as above, the AAA shall forward a written report to the PDA. Mandatory Reporting – Making a Report

23. Administrative penalty: Licensing agency for the facility has jurisdiction to determine any administrative violation and may issue a civil penalty of up to $2500. Criminal penalty: Up to one year imprisonment Penalties for Failure to Comply with Act 13

24. Pennsylvania Older Adult Protective Services Case Management Flow

25. Victim is over 60 • Finding of abuse • Unable to care for self • Lacking responsible caregiver • Willing to accept protective services Substantiation of Elder Abuse

26. The Supreme Court of California held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. • The original 1974 decision mandated warning the threatened individual, but a 1976 rehearing of the case by the California Supreme Court called for a "duty to protect" the intended victim. Duty to Warn: Tarasoff v. Regents of the University of California

27. Truthfulness • Transparency • Trust How Can an Advocate Reconcile Obligations