Right of Privacy

CHAPTER 22 LEGAL FOUNDATIONS IN HUMAN SERVICES: CONSIDERATIONS FOR CLIENTS AND WORKERS DAVID C. MALONEY AND PETER CLARK It is our intent and purpose in this chapter to meet three basic goals for the reader. First, inasmuch as your work will be performed in the service of others, you will need to know what rights and privileges are given to clients by law and how these rights and privileges are typically dealt with by human service professionals. In this way, you may begin to appreciate the extent to which legal considerations will influence what you are required to do with and for the people you service, and you will understand what helping others involves with regard to their freedoms and their choices as recipients of your service. Second, as a beginning student preparing to eventually enter the field of human services, you will need to understand how legal principles will influence the work you do. The readings to follow are designed to present relevant information regarding these principles. Third, after reading this chapter, you will gain a greater appreciation of the law through your knowledge of the origins of those ethics that guide and direct the professional behaviors of human service workers by setting limits to help ensure that such workers always are doing the “right” thing, for the “right” reason, at the “right” time. As “bookends” to the above goals, the authors will begin by providing a brief outline of the relationship between law and society and finish with some relevant applications of specific laws in relation to human services and mental health. LAW AND SOCIETY: BASIC PRINCIPLES In modern civilizations, as well as in known past societies, humans united by a common bond of purpose have always had a shared reliance upon a set of rules that structure the conduct of behavior and the relationships between and among the group’s members. Stability and continuity of society are the products of these laws and rules (Abel, 1995). Laws are the rules of behavior that members of a given society are directed to follow. Whatever benefits are offered to members of a society (e.g., protection, support, income, status, freedom, etc.), those rewards are the product of adhering to the rules inherent to that society. In our society, our laws (rules) originate from two basic sources: either they have been legislated by federal and state elected bodies or they have evolved (case law) from the interpretations of our judiciary system (all branches, state and federal). As a nation, our original basic principles of legislated law are set forth in our Constitution, its amendments, and the Bill of Rights. In the two hundred or so years since the required nine states ratified these sets of rules, all subsequent laws created and voted upon by federal and state legislatures have had to conform to the original constitutional laws. Thus, stability and continuity were preserved for every state in the Union and for the nation, a democratic republic, as a whole (Rembar, 1980). Rights and Restrictions The products of law are statements that describe the rules by which people, their activities, and their relationships are constantly governed. The process of law is the interpretation of those laws via the court system on a case-by-case basis. As original laws are upheld they are constantly being interpreted and reinterpreted through the judgments of the court(s). When new and different judgments are rendered and upheld via the appellate courts (state and federal) they become the prevailing (case) laws. Thus, law is not an arcane code, never to change or bend and intelligible only to lawyers and judges, but rather a substantive, living set of rules subject to review and reevaluation and available to criticism and modification and when in the best interests of all citizens, also subject to repeal. Law is not a monolith of rules, but always in flux as it adapts to social changes of the day. Rights are insured for all citizens of this country by constitutional law. Human service workers should understand the rights guaranteed by the U.S. Constitution in its original form. There are few terms in the Constitution, or its twenty-six amendments, that the average human service student will need to consult a dictionary to comprehend. The conciseness and clarity of these writings are the cornerstones of their longevity and resilience. Collectively, they represent the heart of our civil court system and are exercised daily throughout the country. Laws are also utilized to establish the limits of behavior; that is to say, they present the restrictions imposed both on individuals and on institutions (including the government itself). These limitations, properly administered, form the ground rules for our liberties and our freedoms as citizens. As a student of the Constitution, with all of its rights and restrictions, you will gradually grow to appreciate its depth, its power, its simplicity, and its utility for all citizens within our society, especially those in need. Freedoms and “Humanitarian Ethos” As citizens of a democratic republic, we enjoy a bounty of freedoms and liberties guaranteed by law. Countless numbers of disputes throughout our country’s history have been ultimately resolved and remedied by the application of these laws. Another cornerstone of our society is the moral obligation we carry to help those who are in need and less fortunate than others, by nature or by circumstance. In the broadest historical review of these two centerpieces of modern civilization, there appears a gradual synthesis of legal philosophy (jurisprudence) and Judeo-Christian ethics, expressed as a marriage of earlier “common law” and later “civil law,” especially as it applies to the poor, the disabled, the ill, the deprived, the disadvantaged, and others whom we deem “at risk.” In each of these categories of subgroups in society we can identify the human service client, and thus we understand how our laws to protect and to help them are a reflection of our moral duty (humanitarian ethos) as a society. Having explored the broad outlines of history, law, and social ethics, let us now see how these concepts are more specifically represented in the people we serve and the nature of the help we provide as professional human service workers. RIGHTS OF HUMAN SERVICE CLIENTS Only in the last three or four decades have the rights of human service clients been codified in laws. The initial impetus was provided by the debate concerning civil rights of racial and ethnic minorities in America and by the strength of the commitment of well-known activist leaders of that era, including Hubert Humphrey, Martin Luther King, Jr., and John and Robert Kennedy. Other groups in need were eventually also recognized (the physically disabled, the mentally ill, the mentally retarded, and so on). From these beginnings, programs on equal opportunity compensatory education, nondiscrimination in school and work, and other equal-rights concerns were legislated and made laws. Again, all of these efforts, being grounded on constitutional rights, guaranteed to all citizens a national spirit of moral obligation (humanitarian ethos) devoted to helping those in need. Right of Privacy Probably the most fundamental right of human service clients is their right of privacy. Inasmuch as such clients rely heavily on the trust of professionals, their intimate and personal revelations in therapy and treatment must be held, at all costs, confidential and private. For this reason, the Federal Privacy Act of 1974 was passed (referred to as PL 93-579). The background of the law was a concern that consumers (clients) were not adequately informed of the records being maintained on them and were not able to have full access to these files. The original Privacy Act pertained to federally funded and administered programs as well as some non-federal programs receiving federal grant monies. All such programs had to abide by the regulations in the cases of consumers receiving services through such monies. The Social Security Administration, Department of Veterans Affairs, Supplemental Security Income (SSI) programs and other programs (Medicaid, Medicare, for example) that employ social workers, psychologists, psychiatrists, and other helping professionals were all affected. The highlights and provisions of the law are summarized below. They represent guidelines that medical and health care professionals, human service agencies and institutions, and practicing providers must follow: 1. The individual on whom a record is maintained has the right to: a. find out what records are being maintained on him or her and how they are used and disseminated by the agency; b. prohibit those records that are to be used for a particular purpose in the agency from being used for any other purpose without his or her written consent; c. have access to records and be accompanied by a person of his or her choosing, whether as counsel or as support; d. have copies made of any or all of his or her records, although the agency may charge a fee for this service; e. correct or amend the record as he or she feels is necessary to render it complete and accurate. 2. The agency must secure the individual’s written consent before it can release information from that person’s record to another person or agency. 3. When an agency makes a disclosure of information, it must keep records of a. the date of the disclosure; b. the nature and purpose of the disclosure; and c. the name and address of the person or agency to whom disclosure was made. d. In addition, (a) through (c) must be retained by the agency for a minimum of five years or the life of the record, whichever is longer. e. (a) through (c) must be available to the individual whose record is involved. f. The agency keeps note of all amendments or corrections made by the individual to his or her record. If the information involved has been disclosed to someone prior to the addition of the corrections or amendments, the agency must inform all persons to whom the disclosure was made of the additions or corrections. 4. The individual has the right to correct or amend the record. 5. Agencies must follow certain guidelines in gathering material for their records: a. The agency must keep only information that is relevant and necessary for agency purposes. b. It must collect the information directly from the individual if it is information that may lead to negative decisions regarding federal benefits or rights. c. The agency must provide the following information to people whose records are maintained:

(1) by what authority the agency is allowed to gather the information; (2) whether the information can be disclosed to the individual whose record is involved; (3) the purposes for which the information is to be used; (4) the effects on the informant, if any, of not providing all or part of the requested information. 6. The agency has a responsibility to set policies regarding the handling of records and the safeguarding of confidentiality. 7. A legally appointed guardian may act on behalf of an adult individual who has been declared incompetent, or if a minor is involved, the legal guardian and/or the parents of the child can act on behalf of the child. 8. There are situations in which an agency is allowed to maintain records on an individual that the agency does not have to disclose to the individual: a. Material that would reveal the identity of a source who gave the information to the government under promise that identity of the source would be kept confidential does not have to be disclosed to the individual on whom the record is kept. b. The agency does not have to disclose to the individual information that was gathered prior to the effective date of the Privacy Act if at the time an implied promise of confidentiality of the identity of the source was made. c. An individual does not have to be given access to any information “compiled in reasonable anticipation of a civil action or proceeding.” d. Records maintained by the CIA do not have to be disclosed to the individual. e. Records maintained by an agency concerned primarily with the enforcement of criminal laws do not have to be disclosed to the person. 9. An agency cannot require an individual on whom it keeps records to disclose to the agency his or her Social Security number. 10. A Privacy Protection Study Commission is established to a. monitor application of the Federal Privacy Act; b. study “data banks, automated data processing programs and information systems of governmental, regional, and private organizations to determine the standards in force for protection of personal information”; c. recommend additional legislative action as needed to protect privacy rights of the individual; d. look for violations of the Federal Privacy Act; e. study the information systems of governmental, regional, and private organizations to determine the procedures in force for the protection of personal information. Following this study, the Commission must recommend the extent, if any, to which the principles and/or requirements of the Privacy Act should be applied to those organizations not currently subject to them. The Buckley Amendment. Sponsored by Senator Robert Buckley of New York, this addition to the Acts of Privacy extended its mandated application to students (all ages, all levels) and to schools, training facilities, and educational institutions. Recent Modifications to Privacy Laws. The Health Insurance Portability and Accountability Act (HIPAA) was an outgrowth of earlier legislation sponsored by Senators Nancy Kassenbaum (R-KS) and Ted Kennedy (D-MA). The HIPAA law was designed to protect Americans who had been ill from losing their insurance when they changed jobs or residences. Another intent of the law was to streamline the health care system through the establishment of standards for transmitting information uniformly via electronic health claims. Last, these legal standards would have to be carried while still protecting the privacy of the client and preserving the security of the storage of this information. The privacy rule focuses on the application of effective policies, procedures, and business service agreements to control the access and use of patient information. The proposed security rule addresses the provider/organization’s physical infrastructure such as access to offices, files, and computers to assure secure and private communication and maintenance of confidential patient information. The essence of this recent modification is to safeguard the health care information of human service clients vis à vis the use of electronic-based storage and communication systems (primarily computers and their files). This information is now referred to as Protected Health Information (PHI). Such information and the standards for limiting the accessibility of this information applies, by law, to all human service work, from mammoth hospitals and medical insurance companies to individual, solo practices in psychology, social work, mental health counseling, and so on. It will be yet another area of legally based rules and information that human service workers will be required to know and operate within. Full implementation was scheduled for October 2003. Accessibility and Release of Client Information. Beginning with the client’s first contact with the human service agency or worker, all information, including basic identification data such as name and address, is private and confidential. In other words, having access to it or releasing it to others is restricted by law. The rules outlined earlier in the Privacy Acts identify who, by law, is allowed access to client information, and under what conditions the release of this information is allowed. Essentially, only the client, and those directly involved in working with that client, have access to client information. In releasing information on clients, the human service worker must secure signed consent by the client to release the information maintained by the agency or worker on that client. We will now examine further details of clients’ right to consent. Right to Consent Other than in very specifically defined circumstances which will be discussed later in this section, clients’ legal right to grant consent or permission to do something on their behalf (e.g., consent to release information or consent to receive treatment) requires that an individual’s permission be given knowingly, intelligently, and voluntarily. In the vast majority of situations this permission by the client is recorded in writing and confirmed by the signature of the client. In some cases, a witness’s signature to the consent is also recorded. Types of Consent. There are basically two classes of consent, both of which can be legally binding if the consent is obtained according to proper procedure(s). 1. Informed (Express) Consent Written, signed, dated, and witnessed consents constitute informed or express consents. They may still, however, be invalid if the client can prove that consent was not given knowingly, intelligently, or voluntarily. Final questioning of the client, in the presence of another party (usually a professional colleague or a personal responsible party known to the client) may help to avoid any future consent issues. One such client question protocol would include: (1) “Do you understand what you are consenting to?” (2) “Do you understand why this consent is important?” (3) “Do you give your consent freely and voluntarily and not under threats or any other form of duress?” 2. Implied Consent There are times during which consent can be deduced from a client as a consequence of prior circumstances or previous consents. Examples might include consent to release information to insurance companies who require such information in order to process the billing claims for the services provided to the client. Some insurance companies require such consents from their subscribers at the time of application or enrollment. Another example would be drawing a blood sample from a patient who had been admitted to a hospital. In this case, consent would be implied based upon the consent on file that was taken during the admission process. Extensions and Limitations to Rights of Privacy and Confidentiality Confidentiality is a general standard of conduct that obliges a professional provider not to divulge information about a client to anyone. In this country, it directly includes all medical professionals (physicians, nurses, and so on), allied health professionals (occupational therapists, physical therapists, speech therapists, and so on), mental health professionals (psychologists, social workers, counselors, therapists, and so on), educators (principals, teachers, and so on), as well as fiduciary professionals (accountants, financial/estate planners, and so on). Confidentiality and Privileged Communication. In contrast with confidentiality, privileged communication is a legal construct that refers to a rule in evidence law that “provides a litigant with the right to withhold evidence in a legal proceeding that was originally communicated in confidence” (Rule 504 of the Federal Rules of Evidence). In other words, standards on confidentiality have evolved to protect the client from having private information divulged within the courtroom. The underlying rationale for testimonial privilege is based upon the assumption that the benefit to justice in allowing the testimony is outweighed by the potential injury to the relationship between the professional and the client that is based squarely upon trust and confidence. In most situations, privileged communication is respected in the courts as it applies to doctors, lawyers, and “confessional” clergy, but in some states, like Massachusetts, it has also been extended to psychologists, social workers, and therapists. One important limitation to the construct of privileged communication is that the right to have information revealed in court is the client’s choice and not that of the professional. As such, if the client consents to having information revealed in court, the professional has no legal recourse to refuse and may be punished for doing so (contempt finding); that is, ...clients, not therapists, are protected under privilege statutes. Once a client waives his/her privilege, a therapist is legally obligated to testify (unless the therapist is willing to assume the possible penalty for violations of the law by refusing on ethical grounds to break confidentiality). (Jagim, R. D., et al., p.462, 1978). “Need to Know.” Restrictions on access to client information apply to other professionals who may be otherwise qualified but are not directly involved with the client as such. Professionals, despite working together at the same agency, hospital, or institution, do not have a professional right to access files of clients whom they are not directly servicing. In other words, they must have a “need to know” about such information. “Need to know” means that in order to carry out their work-related responsibilities, they must have access and exposure to the client file. If they fail to meet the “need to know” requirement, they have no right to access the client’s file. Besides direct service providers, other professionals with a “need to know” would include clinical supervisors who meet regularly with workers to review and discuss cases they are working on, utilization review committees and internal audit teams who randomly evaluate client files for completeness and quality, and to a more limited extent, billing clerks, approved researchers, and external auditors doing site visitations. Limits of Confidentiality. Under what conditions are the laws governing access and release of private and confidential client information intentionally breached or broken? The following list outlines those circumstances whereby confidentiality is limited by higher priorities or more important reasons. 1. If withholding information would threaten the client’s safety or the safety of others. a. If the client is clearly dangerous to himself and refuses to accept further treatment, the therapist may take steps to seek involuntary hospitalization. The therapist may also contact members of the family or others if necessary to protect the safety of the client.

b. If the client threatens to kill or seriously hurt someone and the therapist believes he or she may carry out the threat, or if the client has a known history of physical violence and the therapist believes he or she will attempt to kill or inflict serious harm on someone, the therapist may: i. tell any reasonably identified victim; ii. notify the police; iii. arrange for the client to be hospitalized voluntarily; or iv. take steps toward involuntary hospitalization. 2. If it is necessary to place or keep the client in a hospital for psychiatric care. 3. If the therapist is a “mandated reporter” and is required to notify government agencies because he or she reasonably believes a child, a handicapped person, or an elderly person is suffering injury as a result of abuse or neglect. 4. If the client reveals information that pertains to an instance of physician misconduct. In such cases, the therapist is required to report the physician to the board of registration in medicine. 5. In the following types of legal proceedings: a. In a court proceeding wherein it is alleged that a child is without proper guardianship due to the death, unavailability, incapacity, or unfitness of the parent or guardian, or in a proceeding to dispense with the need for parental consent to adoption. b. In a child custody or adoption case if the judge thinks that the therapist has important evidence about a parent’s ability to provide suitable care. c. In any other court proceeding in which the client might introduce his or her emotional condition as an element of a claim or defense. (For example, if the client is fired from a job and sues the employer for wrongful discharge and claims to have suffered emotional trauma, the client has “introduced their mental or emotional condition” and the therapist can be required to testify about issues and communications in therapy.) d. In the event of the client’s death, the therapist may be required to testify in a proceeding where the mental or emotional condition is introduced as an issue. e. If the client brings a legal action against the therapist and disclosure is necessary or relevant to a defense, the therapist may disclose confidential communications. 6. If it is necessary to provide information regarding the client’s diagnosis, prognosis, and course of treatment to an insurance company that is paying for these services. 7. If the Agency must use a collection agency or other process to collect amounts the client owes for services. In this case, clinical information will not be released, other than the client’s name and address. Right to Treatment Human service clients have a right to receive adequate and proper treatment. Application of this right is binding by law, regardless of the client’s status (i.e., inpatient vs. outpatient, involuntary vs. voluntary, competent vs. incompetent). This right also applies to all clients regardless of their special classification (e.g., minors, criminal inmates, mental retardates, and so on). The adequacy and properness of treatment also extends to the number and competency of treatment providers. It further incorporates the accuracy and validity of diagnosis and assessment, which in most cases determines the type(s) of intervention best designed to deal with or treat the problem(s) identified diagnostically. The client’s right to treatment also includes the right to the least intrusive treatment necessary to alleviate the particular problem. Factors such as permanency of change, non-beneficial side effects (including mental/physical debilitations), costs, time and follow-up services are just a few considerations. All of the foregoing issues related to the right to treatment help to define standards in the quality of care and its specific delivery. A final extension of the right to treatment is the client’s right to choose between treatments and to be informed of the differences between treatment approaches or modalities. Unless otherwise directed, the responsibilities for ensuring clients’ right to treatment lie with the human service providers. Right to Refuse Treatment While the right to refuse treatment has multiple reflections of legal support in the First, Eighth, and Fourteenth Amendments to the U.S. Constitution, it nevertheless creates endless debates on its utility and relevance, especially in the face of other legal issues that its argument automatically draws into fire (i.e., competence, safety, custody, etc.). As Kraft notes, it pits “patient against doctor, expert against layman, clinician against lawyer” (Kraft, 1985) In the wealth of related literature on the subject it appears that the problems or issues lie not with the refusal right itself, but rather, with the circumstances under which it is applied. Most actual cases of the right to refuse treatment involve (a) administration of medications as treatment, or (b) intrusive treatment modalities (psychosurgery, electroconvulsive treatment, insulin shock treatment, and so on), and (c) refusal is more likely to occur in underfunded public institutions than in well-staffed private hospitals (Ford, 1990; Michaels, 1981). In contradiction to the commonly held position that such legal dilemmas are best clarified and settled in the appellate court system, it does not appear that the states or the supreme courts have thus far remedied the matter in any consistent manner, other than reiterating that such a right should, in fact, exist. If nothing else, the debate has underlined the need for the Right to Due Process. Right to Due Process This legal safeguard points to the protection of all of the rights of clients and ensures that prior to the loss of any of those rights, the client must be given “due process.” Due process outlines the steps, mandated to be followed, in the case of any abridgement or loss of any right involving the client. Sufficient cause for the removal of any right must occur only by and through the following series of steps: (a) Right to Notice—The right to a written form of petition, which spells out all essential elements of the case; (b) Right to Counsel—Availability of an attorney to represent the client and his/her interests; (c) Right to a Hearing—Fair and impartial review of all salient matters pertaining to the case; (d) Right to Appeal—Any/all decisions rendered in the hearing may be appealed by the client to the local court(s), the State Court of Appeals (including the State Supreme Court), and the Federal Court of Appeals (including the Federal Supreme Court). “Best Interests of the Child” An individual is not generally considered legally competent until he or she reaches the statutory age—the age of majority—for taking responsibility for his or her decisions and behavior. Until such chronological age is met or exceeded, the individual remains defined as a “child”—that is, incompetent by reason of immaturity—or of the age of minority (a minor). Typically, until legally mature the minor falls under the custody or control of the child’s parents, unless it can be proven that the parents, as custodians, are not acting in the child’s “best interests.” On the basis of the “parens patriae” doctrine (i.e., the moral, legal duty of the state to protect its citizens), the state can assume legal custody of the child and make decisions in place of the parents. These situations most commonly arise from (a) the “dangerousness” of the child’s behavior, (b) custody disputes emerging from divorce proceedings and/or physical custody issues arising after divorce, (c) child abuse and neglect (physical, sexual, emotional) by parents, and (d) involuntary commitments for treatment. Frequently the protection of the child’s “best interests” is secured by the state appointing an intermediary guardian—a “guardian ad litem”—who will then act on the child’s behalf. Such appointees are usually charged with investigating all of the salient issues surrounding the specific child’s case and reporting back to the court (usually Probate/Family Court or in some cases, Juvenile Court) with their recommendations. Many legal dilemmas have been unearthed in cases dealing with the “parens patriae” doctrine, minors, and the Right of Due Process in those proceedings. In some highly publicized cases (in re Gault 1967), minor children were taken by police to detention centers without parental notice; hearings were held without principal parties present; no transcripts/recordings were made; and subsequently, commitments were effected without access to counsel. Needless to say, these convictions were reversed by the Supreme Court’s decision. In more recent years, competency motions upheld by judges have frequently led to otherwise minor children being tried and adjudicated in adult court. It would appear these trends demonstrate a shift in the underlying juvenile justice rationale for the “best interests of the child” which was designed to offer the child “individualized justice and treatment rather than impartial justice and punishment” (Halleck, 1967, p. 245). Only time will tell. Organizations dedicated to following these trends and advocating for minor children, such as the Child Welfare League of America, The American Professional Society on the Abuse of Children, and The National Association of Counsel for Children, monitor landmark cases, advocate and lobby for protective legislation, and evaluate/research strategies for improving the safety and welfare of all children. Let us now turn our focus to those legal and ethical issues that directly apply to the profession of human services. EFFECTS OF LAWS ON THE HUMAN SERVICE WORKER Credentialing and Competence Professional Licensing Law. Competence in one’s profession is a prerequisite for any or all of those occupations associated with the field of human services. In most mental health professions, symbols of professional competency are expressed as licensing, certification, and/or registration. These credentials are generally administered by state or national boards that determine the required education, the amount and type of supervised training, passing scores for examinations, references, and so on. For government-supported boards, the regulatory bases for these and other activities (i.e., complaint reviews, sanctions, suspensions, and so on) are laws passed in those states. These individual boards of licensing/registration routinely represent the separate professions of psychiatry, psychology, social work, mental health counseling, drug/alcohol counseling, rehabilitation counseling, and others. Allied health boards may represent other professional occupational groups (occupational and physical therapists, speech therapists, and other specialists). Collectively, these regulatory state agencies attempt to assure the competencies of professional human service workers, to protect the interests of consumers, and to implement ethical and legal hearings when complaints against these professionals are filed. So far, these comments have been directed to the separate professions that typically work with human service clients. Another movement with similar purpose and function may be found in the work of The National Community Support Skill Standards Project, which is designed to regulate the quality and competency of entry-level (two-year/four-year college degrees) human service workers. Please refer to Chapter 8 for additional specifics on this national credentialing program. Professional Accountability and Peer Review. In the foregoing discussion, you have been introduced to how society formally recognizes a profession. In that recognition, leading to a credential, the profession also is made aware of its professional accountability to society. When, and if, society evaluates the professional or his/her practice as substandard, it attaches legal liability as a consequence. This liability is presented as a claim of malpractice and its review and judgment is made in one, or both, of two mechanisms: regulatory reviews conducted by the professional board representing the specific discipline involved, or formal legal complaints presented by means of the civil court system. In some legal cases, criminal charges may also be filed. Inasmuch as the latter two topics will be addressed later in this chapter, we will deal only with the former topic—regulatory reviews—at this point. The most often utilized procedure for policing professionals in human services is by means of self-regulation via the professional credentialing boards in each state. It should be stated here that there is much state-by-state variance regarding the defined standards of care and how these standards are monitored in the practice of the specific discipline. One must be knowledgeable regarding the statutes governing one’s chosen profession in the state in which one practices. Notwithstanding the lack of uniform legal references to these credentialed professions, there are fairly common phases or steps involved in how they are processed in any state. In all cases, the professional is protected by the right to due process (notice, counsel, hearing, appeal, and so on). If a complaint is received, the board will record the complaint with release consent and notify the practitioner, gathering verification of basic information. If the complaint is deemed viable, the board will then request pertinent file material, interviews with all principal parties, and statement of review findings. These activities are normally conducted by colleagues, or peers, appointed by the board for such occasions and representing the standard for self-regulation of its credentialed members. A final step incorporates the conclusion of the board for or against the individual in question. Positive findings typically result in dismissal of the complaint(s), whereas negative conclusions that substantiate the complaint(s) lead to a range of possible reprimands, from a formal warning issued by the board, to suspensions, or to revocation of the professional credential. These Peer Reviews constitute the mainstream procedure for self-regulation of professionals. Boards may also refer the complaints to the proper legal authorities (District Attorney, Attorney General, U.S. Attorney) should their investigation uncover serious criminal behavior(s). Malpractice in Service Delivery The delivery of services to human service clients is universally a case process format. The case process for the vast majority of human service clients follows these general steps: 1. Intake—Initial data-gathering contacts with clients; 2. Assessment—Diagnosing/determining the problem(s); 3. Treatment Planning—Planning goals/objectives for helping; 4. Intervention—Implementing the help (therapy, medication, self-help, etc.); 5. Evaluation—Measuring outcomes of treatment; 6. Termination/Referral—Ending services or referring the client elsewhere. The phases of case process that are most vulnerable to accusations of professional malpractice occur in Assessment/Diagnosis and/or Intervention/Treatment. During these phases, errors of commission or omission can occur. For example, the clinician may misdiagnose a client (commission) or may neglect to provide appropriate/proper treatment for a diagnosed condition (omission). In some cases, complaints may incorporate both types of errors in both phases of case process. Diagnosis/Assessment. Clinical skills in the determination of the priority issues for clients vary from one profession to another. For instance, most readers would agree that the use of psychological tests in assessing client problems would be a good choice of tool(s) in such a task. The training and education, however, required to be competent in the administration, scoring, and interpretation of standardized tests lies almost exclusively with doctoral level psychologists. Thus, psychiatrists, social workers, and mental health counselors routinely utilize interviewing techniques to arrive at their diagnostic decisions. For psychiatrists, the mental status exam is the method of choice, while social workers rely on social histories and systems analysis (family, work, school, and so on) to assess the client’s problem(s). Problems for the professional arise when standards of care are ignored or violated. In the procedures for assessment and diagnosis, the professional must gather complete and relevant information on the client in order to accurately and reliably determine problems. Timeliness of data and information, validity of recorded observations, past assessments and issues, prior hospitalizations, medical issues, and the like must be gathered, reviewed, and interpreted before clinical judgments are rendered. In the use of tests, one’s training and competency in testing must be considered. Latest editions of tests and their norms must be used. Referral questions to be answered by the tests must be clear and relevant. Moreover, in formulating the diagnosis, substantiation of symptomatic behaviors must be documented for each diagnostic label or code used. Thorough knowledge of the content and use of diagnostic reference tools such as the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), must be acquired. Faulty use of such tools, incomplete supportive information, misuse of tests, use of outdated editions of tests, and going beyond or outside one’s level or area of clinical expertise, are examples of areas where diagnostic errors of commission and omission are typically made. Therapy/Treatment Aside from misconduct violations within relationships with clients (a topic that will be addressed later in the chapter), human service workers are more often targets of malpractice suits related to therapy and treatment than to any other area of responsibility. Most often such suits are driven by claims of negligence in the delivery of such services. These actions can range from employing radical and inappropriate treatment methods to physical and/or mental harm arising from improper hospitalizations, medications, or other treatment. In all these circumstances, the plaintiff (the client) must demonstrate: (a) A legal duty existed between practitioner and the injured party; (b) The practitioner was derelict or negligent in that duty (by commission or omission); (c) Harm or injury was experienced; and (d) The harm or injury was caused by dereliction of duty (Hogan, 1979, p. 8). Ultimately, the determination of whether a professional is guilty of dereliction/negligence of duty will rest upon whether the practitioner conformed to a required standard of care and followed a standard protocol (procedure) for treatment of what was originally diagnosed. In essence, the student of human service practice must (a) know how to make accurate, valid diagnoses, and (b) since diagnosis drives treatment, understand which treatment protocols or approaches work most effectively with which diagnostic labels or conditions. Relationship Issues Civil and Regulatory Infractions. Many of the complaints made by clients against mental health professionals arise from violations of the therapeutic relationship. Because of the intimacy and trust that form the bond of therapist and client, there cannot be any other relationships between the parties involved. “Dual relationships” are strictly taboo in professional codes of ethics inherent to the field, and penalties for violations can be severe. Human service professionals cannot develop or encourage social relationships with their clients. Social activities, gift exchanges, regular telephone contacts, transportation arrangements, loans, favors, work, home visits, lunches and dinners, and so on are all outside the limits and boundaries of professionals working with needy clients to help them resolve life’s issues and problems. Professional human service workers must be continuously vigilant as to their professional conduct and the limits of their involvement with clients. Along these lines, the most frequent malpractice complaint of clients against their therapist or counselor involves sexual misconduct.

Criminal Behavior.

In some states such as Massachusetts, sexual misconduct is not only a violation of professional ethics (leading to possible civil litigation) but is also actionable as a criminal offense. Violators may not only lose their professional credential (license or certificate) but also may be subject to fines, civil monetary awards, and prison sentencing.

Consequently, human service workers must know and understand the legal responsibilities of their work, the specific ethical codes adopted by their professional association(s), and the penalties and consequences for ignoring or neglecting those professional responsibilities.

HUMAN SERVICE APPLICATIONS OF LAW

Up to this point in the chapter we have attempted to focus on lawful foundations involving the rights of human service clients and professional issues and responsibilities that human service workers must attend to and resolve. Now we will outline how the law is applied to the field of human services and offer selected noteworthy case references.

Competency and Civil Commitment

Historically during the 1950s and ’60s, it was routinely acceptable to place seriously mentally ill patients into psychiatric facilities with legal support and by orders from the civil courts. These actions, known as civil commitments, were almost always involuntary and frequently lasted for long periods of time. The basis for these actions was the legal tradition of parens patriae, referred to earlier as the prerogative of society to act on behalf of these impaired citizens who lack mental competency to make reasonable decisions on their own behalf and at the same time, to protect society from the potential danger they may present as disturbed individuals.

As a consequence of mental health reforms of the 1960s and ’70s, laws were passed tightening the rules for involuntary civil commitments and establishing new public social policies regarding the deinstitutionalization of hospitalized mental patients and their re-entry to community-based outpatient treatment programs. At this time, before individuals who were petitioned for involuntary commitment to residential mental institutions could be admitted, four conditions had to be proven to exist:

· 1. The person is mentally ill;

· 2. The person poses an imminent risk of danger to self or to others as a result of the mental illness;

· 3. Treatment for the person’s mental illness is available at the proposed treatment facility;

· 4. Hospitalization is the least restrictive alternative available for the person’s treatment.

As a consequence of the release of large numbers of mental patients from hospitals and the more difficult standards required for involuntary commitments, more and more mentally ill patients had to rely upon community support systems for help. Unfortunately, over time we have witnessed the failures of these changes as more and more mentally ill persons have drifted into homelessness and faced the risks of surviving on the streets. Also noteworthy have been increases in the number and kinds of criminal behavior in which mentally ill individuals have been involved. In spite of the disadvantages of institutional care, it at least provided safety and minimum standards of treatment and care to these unfortunate and needy individuals.

Let us now examine other legal efforts of society to protect and assist those who are incapable of representing their own best interests.

The “Therapeutic State” and Pleas

The “Therapeutic State” is a jurisprudence viewpoint that sees an obligation of law and society to evaluate and interpret all mental health laws in terms of their value as therapy for the mentally ill.

The utility of the “Therapeutic State” is most apparent in trial court involving suspected mentally ill individuals who are being charged with criminal complaints. The first of these is the “competency to stand trial.” Defendants are considered incompetent if, as a result of a mental disorder, they cannot (1) understand the nature of the trial proceedings, (2) participate meaningfully in their own defense, or (3) consult with their attorney. Competency here refers to the defendant’s mental condition at the time of the trial. In other “therapeutic” pleas, insanity is reviewed in the defendant’s mental state at the time of the alleged offense.

Defendants are commonly presumed to be mentally responsible for the crimes with which they are charged. If defendants plead not guilty by reason of insanity, they must present evidence to show they lacked the state of mind necessary to be held responsible for the crimes with which they have been charged. As a legally defined concept, insanity standards have evolved slowly over time and have varied, and do vary from state to state. The origins of insanity standards began with the McNaughton Rule. Daniel McNaughton was an Englishman who in 1843 plotted to assassinate the British Prime Minister, Robert Peel. Outside 10 Downing Street in London, McNaughton shot and killed Peel’s secretary, whom he mistook for Peel. Following arrest and at his arraignment on murder charges, McNaughton pleaded “not guilty by reason of insanity” (NGRI). After several psychiatric evaluations, he was declared legally insane and subsequently found innocent due to mental impairment. The judgment inspired heated debate within British society and eventually led to defining two requisite criteria: (a) the mental illness caused the subject to not know what they were doing; and (b) the mental illness caused the subject to not know that what they were doing was wrong. The major theme of criticism against the McNaughton Rule was that it was based on cognitive impairment and failed to consider motivation and control.

In 1954 an alternative to the McNaughton Rule emerged from a burglary case involving Monte Durham, a career criminal whose plea of not guilty by reason of insanity was rejected by the sitting judge and appealed by his attorneys on the basis that the McNaughton Rule was obsolete. Appellate Court Judge David Barelon in Washington DC ruled in favor of Durham and ordered a new trial with the standard for an insanity plea being “that an accused is not criminally responsible if his unlawful act was the product of a mental disease or mental defect.” This eventually became the Durham Rule, or the product test for the insanity plea. As a result of its emphasis upon the testimony of psychiatrists and psychologists, the Durham Rule was eventually replaced in 1972 by the Brauner Rule, also known as the ALI Rule (American Law Institute). In the ALI Rule, a defendant is not responsible for criminal conduct if “at the time of such conduct as a result of mental disease or defect the defendant lacks substantial capacity either to appreciate the criminality (wrongdoing) of his conduct or to conform his conduct to the requirements of the law.”

In the last thirty years, the use of insanity pleas has become far less frequent than the public may realize. Despite notorious cases involving such pleas, such as in the John Hinckley trial, less than one percent of defense pleas involve insanity. Moreover, the insanity defense has been successful in only a handful of all cases heard annually.

Guilty but Mentally Ill

A more recent, and to some, more reasonable legal position regarding the competency and sanity of defendants has been the plea or verdict option of finding a person so charged guilty but mentally ill (GBMI). In these rulings, the subject would be adjudicated appropriate treatment for the mental condition and when (and if) cured or relieved of the presenting disorder (the symptoms syndrome) would then begin the sentence applicable to the crime committed.

Mandated Reporting: MGL Chapter 51A

Another application of law to human services may be found in mandated reporting statutes governing the recording of suspected child abuse and neglect circumstances observed or suspected by human service workers who routinely work with children and families. The following excerpt taken from Massachusetts General Law (MGL) Chapter 51, Section A, typifies the spirit of such laws found in most states at this time.

·  Any physician, medical intern, medical examiner, dentist, nurse, public or private school teacher, educational administrator, guidance or family counselor, probation officer, social worker, foster parent or policeman, who in his professional capacity shall have reasonable cause to believe that a child under the age of eighteen years is suffering serious physical or emotional injury resulting from abuse inflicted upon him including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth, shall immediately report such condition to the department by oral communication and making a written report within forty-eight hours after such oral communication; provided, however, that whenever such person so required to report is a member of the staff of a medical or other public or private institution, school or facility, he shall immediately either notify the department or notify the person in charge of such institution, school or facility, or that person’s designated agent, whereupon such person in charge or his said agent shall then become responsible to make the report in the manner required by this section. Any such person so required to make such oral and written reports who fails to do so shall be punished by a fine of not more than one thousand dollars. (Massachusetts General Law, Chapter 51A)

As noted, failure to report child abuse incidents will lead to adjudication of penalties including fines and imprisonment. As presented earlier, such reporting takes priority over the rights of confidentiality and, as such, protects the reporter from any such confidentiality infractions. The law also protects the reporter from any defamation, slander, or libel claims resulting from such reporting, whether the abuse claims are substantiated or not. In all cases, human service workers should recognize their mandated responsibilities in this law and should understand the purpose and protection it affords for both the client (child) and the worker.

CLOSING REMARKS AND FUTURE CHALLENGES

The law and human services are partners in serving and protecting those in need of help and assistance. While lawful foundations establish the structural underpinnings of our professional duties and responsibilities, they also serve to define the rights and privileges afforded to clients. In may different ways, the influences of law and of professional ethics permeate our daily work activities; thus, it is essential to know which laws apply to our work and our clients and how the directives are best utilized and integrated in day-to-day circumstances.

As you have read in this chapter, there is a “power” or “strength” one acquires in studying the law and professional ethics and in learning to exercise this knowledge on behalf of those we serve. As a human service professional, you will feel the power of the law and will know confidently and competently how you must follow and work with those future responsibilities regardless of job title or kind of agency, or individual client with whom you eventually work. Good luck, and never stop learning.