The failure of the NASW Code of Ethics

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.com, to learn more about law-based decision making.

Guest question: Spot checks on public housing residents

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”

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.

Does “counseling out” students from university programs violate their constitutional rights?

Please consider the following fictional scenario: Dr. Dolores Hickey teaches psychology at a public university in Amherst, Massachusetts. At a monthly faculty meeting with her colleagues, she �staffs� students, meaning that she identifies those who appear to be having major academic issues, personal problems interfering with their educational progress, or other difficulties. Dolores, a licensed clinical psychologist, has much experience in the diagnosis and treatment of mental disorders and brings this knowledge to her classroom interactions with students. Her classes tend to be �hands-on,� with students encouraged to achieve self-awareness by sharing personal issues with the class. She regards this classroom exercise as an important aspect of the use of reflective insight in psychology, a task encouraged by some professional educators. At the most recent student staffing, Dolores discusses Wanda Moreno, a second-year master�s student and the daughter of Puerto Rican immigrants to the U.S. Wanda, according to Dolores� description, is a �C� student and has looked �overwhelmed� in class for the last four weeks. She sits silently, never participating in class discussions, and, additionally, she looks �withdrawn and depressed.� Although her class papers have been submitted on time, they are sparsely written and lack self-disclosure, a specific requirement described in the course syllabus. Wanda has declined all of Dolores�s requests for a meeting to discuss these observations, and Dolores now seriously questions Wanda�s emotional maturity and appropriateness for psychology practice. She seeks her colleagues� advice on whether Wanda should be �counseled out,� a process by which university faculty and administrators deliver a strong, personal recommendation to a student to withdraw voluntarily from their degree program. This scenario represents a classic and unfortunate example of a threatened interference with fundamental constitutional rights by a state actor under color of law. The fundamental rights involved here concern Wanda�s personal privacy and self-expression, both liberty-related privileges recognized under the First and Fourteenth Amendments. Wanda�s personality, her manner of personal expression, and her attitude toward Dolores are her own business until such time as the state actors�university faculty members and administrators�can present a compelling reason for interfering with them. A compelling reason here would need to be grounded in the university�s important public responsibilities, which include the training of competent psychologists and the maintenance of an orderly and safe classroom environment in which to perform that task. In the absence of any showing that Wanda�s behavior either violates the university�s academic standards or interferes with classroom decorum or the rights of other students and faculty members, no compelling reason exists to address Wanda�s behavior. Even assuming that Wanda�s behavior suggests clinical issues�a conclusion that is as yet highly suspect�the evaluation that Dolores appears to be offering is not reasonably related to her role as a psychology educator. Rather, it threatens to use the power differential between professor and student to impose clinical assessment and �treatment� on an involuntary client. In this respect, the scenario raises clear informed consent issues. In constitutional terms, Wanda has a liberty-related right to remain free from arbitrary counseling. This case example can be understood alternatively as an equal protection dilemma. The school�s counseling out of Wanda�the state action performed by Dolores and her colleagues�can be regarded as a classification based on Wanda�s fundamental right to privacy and self-expression, as discussed earlier. The foregoing constitutional review of Wanda�s case is not intended to suggest that a student�s communication can never be interfered with or classified by a public university. The grading of examinations and papers is one such example of a classification. In contrast to the categorization attempted by Dolores in this case example, however, grading is reasonably related to the university�s essential purpose, and uses uniform standards that keep students more or less on an equal footing. Students� performance in field practicum and clinical training placements may also require faculty evaluations that grade students on the basis of their communications with clients and co-workers. Here again, however, such evaluations must be narrowly tailored to serve the limited purpose of evaluating student competence objectively in specific tasks. The use of due process and equal protection analysis was described earlier as a means of promoting diversity. The present case example offers a compelling demonstration of this point. In cross-cultural professional relationships, diverse communication styles may sometimes be inappropriately labeled as a failure�often by a minority student�to conform to expectations. By strongly discouraging this type of labeling, the duty to treat clients with due process and equal protection offers specific protections to all recipients of government services, including students. Moreover, recognizing the applicability of due process and equal protection can help to discourage the use of speech based classifications as a proxy for more odious categorizations, such as those based on race and ethnicity. The present case example also raises interesting procedural due process concerns. In the scenario, Wanda plainly has a property right associated with her education. It cannot be regarded as fundamental, because no constitutional protections�either federal or state�have yet recognized the right to an advanced professional education. Wanda�s property right is protected, however, by procedural due process. In her situation, the counseling out process may be used�either intentionally or not�as an informal, less confrontational form of gatekeeping, i.e., the process of determining the eligibility of entrants into the behavioral health professions. When it is practiced in the manner described in the present case example, it serves to eliminate the procedural rights that a public university student should have, including notice of the reasons justifying formal disciplinary action and an opportunity for a hearing. The faculty�s �request� to a student that she withdraw from classes under the circumstances presented is not much different from a police officer�s �request� to enter the home of a person having a loud party. Both requests take advantage of a position of authority, and both may be intended to accomplish a specific end without formal process. Wanda�s dilemma offers vital guidance to decision makers considering the impact of constitutional protections on practice problems. As the case example suggests, mastery of the principles underlying due process and equal protection offers decision makers practical assistance in the consideration of critical, cross-cultural practice dilemmas. Moreover, Wanda�s case demonstrates that a client�s right to life, liberty, and property has concrete implications in all elements of behavioral health practice.

What is “natural law” and how should it affect mental health decision making?

A key factor demonstrating the bond between law and ethics is natural law theory. An integral part of the precepts forming the foundation for the United States Constitution, this approach views natural law as consisting of the principle of practical rationality. Thus,
according to natural law theory, all persons tend to possess an “intrinsic directedness toward the various good that the natural law enjoins us to pursue,” and this includes at least in some but not all interpretations of natural law the recognition that it is a product of divine providence. Just as importantly, natural law assumes that its precepts are knowable to human beings. For those natural law theorists who look to practical, rational discourse and human behavioral tendencies to understand the development of moral precepts, there is a clear line of connection between natural law and the development of ethics and ethical codes.