Treating Children and Families: Avoiding Ethical Pitfalls August 11, 2011

1. Treating Children and Families:Avoiding Ethical PitfallsAugust 11, 2011 Gerald P. Koocher, PhD Simmons College www.ethicsresearch.com

2. Focus of the workshop • Understanding client status • Confidentiality • Multiple role conflicts • Legal vs. ethical requirements • Mandated reporting requirements • Children in the context of divorce • Working with clients across multiple levels of jurisdiction including schools and government agencies.

3. Ethics vs. Legal Issues

4. The Culture Gap Between Mental Health Practitioners and Lawyers • Mental health practitioners train in a behavioral science model. • We believe that an individual applying rigorous methods can discover significant truths within ranges of statistical certainty. • Lawyers train as advocates. • Lawyers believe that the search for truth depends on a vigorous adversarial cross-examination of the facts.

5. The Culture Gap • Mental health professionals seldom give dichotomous answers to questions. • We prefer to use probabilities, ranges, norms, and continua that reflect the complexity of human differences. • Lawyers learn to “try” or weigh facts. • Lawyers expect clear, precise, unambiguous decisions, They seek to establish bright lines and clear dichotomies.

6. The Culture Gap • We strive to empathize with our clients and show them unconditional positive regard. • Little progress will occur in our work with clients, if we do not like/respect each other. • We constantly collect data and try to ask all the important and sensitive questions. • Attorneys believe that they can (and must) at times defend people they detest. • Attorneys may choose not to ask their clients certain questions (e.g., “Did you do it?”) in order to defend them vigorously.

7. Levels of Proof in the Legal System Preponderance of Evidence (51%)Clear and Convincing Evidence (75%)Beyond a Reasonable Doubt (95%)

8. What Uniqueness to Kids and Families Bring to the Mix

9. 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.

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

11. 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?

12. 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

13. Children’s Competencies

14. What are you really 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

15. 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.

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

17. 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?

18. 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)

19. What’s a practitioner to do? • Focus on • Competence • Confidentiality • Informed consent or permission from all parties • Role clarity • Vigilance, monitoring, and active management as change occurs or new issues arise

20. Confidentiality and Mandated Reporting

21. Fundamental statement on confidentiality • Mental health providers have a primary ethical and legal 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 relationship.

22. Limits on Confidentiality • Mental health practitioners must discuss (including, to the extent feasible, persons who are legally incapable of giving informed consent and their legal representatives): • (1) the relevant limits of confidentiality and • (2) the foreseeable uses of the information generated through theirprofessional activities.

23. Consent to Services Discussion Topics • Provide the same basic information given to individual clients • Confidentiality limits • Access to records • Normal conflicts of interests in multiple client therapies • Children’s rights and limitations in these situations

24. What principles apply to informed consent to treatment? • Inform clients as early as feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality. • Provide sufficient opportunity for the client to ask questions and receive answers.

25. Comments on Consent • For persons who are legally incapable of giving informed consent, nevertheless • (1) provide an appropriate explanation, • (2) seek the individual's assent, • (3) consider such persons' preferences and best interests, and • (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law…take reasonable steps to protect the individual’s rights and welfare.

26. Comments on Informed Consent • When services are court ordered or otherwise mandated, practitioners should inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding. • We must also document written or oral consent, permission, and assent.

27. Basic information given individual clients. Confidentiality limits Access to records Normal conflicts of interests in multiple client therapies Children’s rights and limitations on these Rules for disclosure of info across family Reminder that no one can predict the course of or changes in human relationships HIPAA rules Working with Families and ChildrenConsent Discussion Topics

28. Mandated reports • Who, what, and to whom… • Child abuse • Elder abuse • Dependent person abuse • Others… • Abuse of former client(s) (Minnesota) • Unsafe drivers (Pennsylvania and pending in Massachusetts) • Use of tetrahydrocannabinol or has alcoholic beverages during pregnancy (Minnesota)

29. Twists and Turns in Massachusetts Mandated Reporting • Financial abuse of elders is reportable, but religious treatment of illness is not. • Disabled persons may request privilege from the provider. • Religious leaders not exempt from child abuse reporting mandates.

30. People v Caviani, 172 Mich App 706; 432 NW2d 409 (1988) • Mother initiated family therapy with defendant after suspecting that her husband had sexually molested their nine-year-old daughter. • Defendant, a psychologist and family therapist, rendered therapy and treatment to the victim, the victim's mother and the victim's father. • During individual therapy sessions in early 1986, the child told defendant about recurring incidents in which her father fondled her breasts. When questioned the victim's father made it clear to defendant that if he had touched the victim, such touchings were completely accidental and not done for the purpose of sexual arousal or gratification. • The child later told a school counselor, who reported the incident to protective services. A petition based on the victim's allegations of sexual abuse was filed in the probate court. Contending that defendant had reasonable cause to suspect that the victim had been molested but had failed to report the suspected child abuse as required.

31. Buckingham Browne & Nichols & Edward H. Washburn (1983-1985) • Washburn turned in by sister, after her son disclosed abuse by uncle. • BB&N did not report the incidents to state officials and attempted cover up. • Washburn pled guilty. • School and headmaster fined, psychologist disciplined.

32. Psychologist Accused of Failing to Report Child Abuse • POSTED: 6:35 am EDT April 9, 2009 http://www.theindychannel.com/news • NORTH VERNON, IN -- A psychologist was arrested in his Jennings County office Wednesday on a charge of failing to report child abuse or neglect. Police said Dr. Robert Dailey did not report a case in which a juvenile suspect in a child molestation investigation told him of inappropriately touching another juvenile during an appointment. The juvenile's case went through the juvenile justice system.

33. 626.5561, Minnesota Statutes 2007: REPORTING OF PRENATAL EXPOSURE TO CONTROLLED SUBSTANCES--- • “A person mandated to report… shall immediately report to the local welfare agency if the person knows or has reason to believe that a woman is pregnant and has used a controlled substance for a nonmedical purpose during the pregnancy, including, but not limited to, tetrahydrocannabinol, or has consumed alcoholic beverages during the pregnancy in any way that is habitual or excessive. • Any person may make a voluntary report if the person knows or has reason to believe that a woman is pregnant and has used….

34. 626.5561, Minnesota Statutes 2007: REPORTING OF PRENATAL EXPOSURE TO CONTROLLED SUBSTANCES--- • An oral report shall be made immediately by telephone or otherwise. An oral report made by a person required to report shall be followed within 72 hours, exclusive of weekends and holidays, by a report in writing to the local welfare agency. Any report shall be of sufficient content to identify the pregnant woman, the nature and extent of the use, if known, and the name and address of the reporter.”

35. Duty to Protect Third Parties for Dangerous Kids

36. McIntosh v Milano, 1979 • Lee Morgenstern, a teenaged client, told his therapist (a psychiatrist named Milano) of sexual adventures, acting-out behavior, and jealousy related to Kimberly McIntosh, the young woman next door. The therapist did not particularly believe him. Later the teen shot the woman to death, and the psychiatrist was sued. He sought summary judgment, but it was not granted, and the case went on to a trial. The jury ultimately found no negligence on Dr. Milano's part.

37. Thompson v. County of Alameda, 1980 • A teenaged juvenile offender named James who was in county custody threatened to "off" someone when released from incarceration. Sent home on a leave in his mother's custody, he tortured a 5-year-old neighborhood boy to death. The parents sued the county and advanced the Tarasoff doctrine as part of their case. The court disallowed application of that doctrine, because there was no specific identifiable victim of the teenager's nonspecific threats. In addition, the court ruled that the official decision to grant leave and similar correctional release decisions were immune from liability.

38. Confidentiality and Dead People

39. Confidentiality and Deceased Patients • Legal representative of estate have authority unless specifically prohibited by state law (HIPAA Privacy Rule) • Not required if licensed therapist decides, in the exercise of reasonable professional judgment, that treating an individual as personal representative is not in patient’s best interest (HIPAA Privacy Rule)

40. Still more twists on confidentiality of dead people • Middlebrook, D. W. (1991). Anne Sexton: A biography. New York: Vintage Books. • Martin Orne, MD, PhD • Swidler & Berlin and James Hamilton v. United States U.S. 97-1192. • Opinion by Rehnquist, joined by Stevens, Kennedy, Souter, Ginsburg, and Breyer, held that notes were protected by attorney-client privilege because both a great body of case law and weighty reasons support the position that attorney-client privilege survives a client's death, even in connection with criminal cases. • Opinion cited: Jaffee v. Redmond, 518 U.S. 1, 17-18, 135 L. Ed. 2d 337, 116 S. Ct. 1923 (1996)

41. Sharing information about children’s psychotherapy with their parents • Fundamental 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.

42. 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.

43. Children’s Records Under HIPAA • In most cases, parents can exercise a right of access to the medical record on the child’s behalf • [45 C.F.R. 164.502(g)(3)]. • Regulations permit minors to exercise control over their own records if, under applicable state law, they didor could obtain the health care for which the records are being sought without the requirement of parental consent, and if the minor did not ask for the parent to be treated as a personal representative. • [45 C.F.R. 502(g)(3)(i)]

44. Massachusetts General Laws • Parents have a right to a copy of their child’s records. • Children may seek treatment without parental consent if they believe they: • may be pregnant or seek family planning advice • May have a sexually transmitted disease • Age 12 or older seeking substance abuse treatment (except Methadone) • Age 16+ seeking mental health treatment

45. Emancipated and Mature Minors in Massachusetts • Emancipation is a legal status that reduces parents’ rights and duties toward their child and gives the child some adult rights. • Massachusetts does not have a formal procedure for granting emancipation, but minors may petition for this status in court. • Massachusetts does recognize a mature minor rule, which means that minors can consent to medical treatment—except for abortion—if the doctor believes the minor can give informed consent to the treatment and it is in the minor’s best interest not to notify his or her parents.

46. Abortion and Minors in Massachusetts • A minor who is married, divorced, or widowed can obtain an abortion without parental consent. • A minor who has not married must obtain consent of one parent or guardian. If she is unable to obtain or chooses not to ask for consent from a parent/guardian, she may petition a judge of the Superior Court to obtain consent

47. Practitioner Competence

48. Standards on Competence • Mental health professionals should practice only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study, or professional experience.

49. Standards on Competence • 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 services with specific populations. • Practitioners should recognize their limitations and if not qualified you make appropriate referrals.

50. Take the quiz… Are you culturally competent for the child populations you plan to serve?