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.co) discussion of the meaning of the legal standards governing practice in mental health, including the duty to practice reasonably competently.

Legal issues in clinical supervision

As readers of this blog have noticed, I have presented a series of professional dilemmas derived from similar case scenarios in well-known ethics treatises. As with the other dilemmas I have presented, I wish to make the case that many “ethical” dilemmas have imbedded legal issues which make them amenable to analysis using the law based decision making framework presented at this website. My latest example presents for the first time a problem involving social work supervision: Jade Sammon is a family counselor schooled in psychoanalytic methods. She has been practicing using this model within a community based family agency. Jade has a field practicum student, Mary Hartpence, whom Jade has been supervising for some weeks. Jade has had no previous experience working with practicum or field placement students. Jade has been unhappy with Mary’s overall performance, and she doubts whether Mary will make an effective social worker. Mary has been providing one-on-one client psychotherapy services, with clinical supervision provided biweekly by Jade. At the crux of their conflict is the step Mary took independently at the commencement of her practicum to advise clients that she was a student. Jade advises Mary that she disagrees with Mary that any clients should have been advised about Mary’s status as a student, because she is convinced that this revelation would provoke a clients to leave treatment or to conclude that they are receiving inferior services. During supervision, Mary, at Jade’s urging talks extensively about her troubled social relationship with a verbally abusive boyfriend. In response, Jade shares her concerns with Mary that Mary’s personal life — including her continuing involvement with the boyfriend — are interfering with Mary’s work at the agency. It seems as though much more of Mary’s supervision time is spent discussing Mary’s past and present life than her clients. At one point, Jade tells Mary that she could see her as a client for individual therapy at a reduced rate because Mary is a student with limited funds. The question posed by the author of this scenario as it originally appeared in an ethics treatise is simply this: “Is jade engaging in ethical practice as a supervisor?” I hope that most readers will pause here a moment and will experience the same sense I do of being aghast at the manner in which Jade is handling her interaction with her student. I hope readers will also quickly come to the realization that the issues most obviously presented here are legal ones: First, the failure to reveal Mary’s status as a student violates the principle of informed consent as it denies clients knowledge of a major risk (and perhaps a potential benefit) of working with a field intern rather than the primary therapist. That’s not to say that Mary cannot work with clients directly, just that the fact she is a student and under supervision is to be part of the treament offered. With full revelation of this information to the client, there is no reason that Mary cannot learn the ropes of her profession while continuing to provide clinical services to clients and maintaining her association with her supervisor. Consider the second legal point raised by this “dilemma.” Can Jade offer her field student the chance to undergo psychotherapy with this service provided directly by Jade herself. I am confident most readers will quickly note that there is a profound legal problem connected with this suggestion — the issue of an inappropriate dual relationship between supervisor and student — which not only excludes the possibility that Jade can provide competent, effective mental health services to her proposed client but also casts doubt upon Jade’s professional competence as a clinical social worker. More than anything, I hope that discerning readers will recognize the legal problems inherent in the above scenario. The original author of this scenario proceeded to analyze it using ethical standards that presumably apply to this dilemma. In reality, these standards become peripheral to the analysis once the legal issues have been identified. For more information concerning informed consent and dual relationships, please take a look at the law based decision making framework offered at this website. Comments anyone?

Revisiting the duty to report sexual abuse

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

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

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

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

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?

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

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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