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Informed consent in probation and parole settings

Kevin Yeates

Kevin Yeates is based at the Department of Psychological and Quantitative Foundations, University of Iowa, Iowa City, Iowa, USA.

Abstract

Purpose – The purpose of this paper is to explore the complex factors associated with informed consent in probation and parole settings. Design/methodology/approach – The author conducted a literature review exploring informed consent in correctional settings. To identify articles for review, the author searched electronic peer-reviewed literature databases for articles on: informed consent, corrections, probation, parole, voluntariness, and coercion. Findings – There is evidence in the literature to suggest that the informed consent process is significantly more complicated within correctional settings than in civilian contexts. The use of implicit and explicit coercion and determining an offender’s voluntariness status may be a problematic prospect unique to the setting. This manuscript makes recommendations to ensure informed consent is truly obtained and to safeguard client welfare. Originality/value – There is a paucity of literature on providing mental health services in probation and parole settings. Furthermore, this paper is unique in discussing factors associated with the informed consent process in that context.

Keywords Corrections, Consent, Informed, Parole, Probation, Voluntariness

Paper type Literature review

At the end of 2012, approximately 6,937,600 offenders were in the USA adult correctional system (Glaze and Herberman, 2013). The sizable population of offenders under correctional supervision within the Department of Corrections presents a significant number of mental health-related issues; it has been estimated that the prevalence rate for mental health and substance use disorders is more than three times higher in the offender population when compared to the general population in the USA (Skeem et al., 2006). This elicits unique challenges as the paradigm for offender rehabilitation has shifted toward a more integrated and multi-faceted approach incorporating the identification and treatment of mental health issues among offenders (Skeem et al., 2011).

Providing mental health services within correctional settings brings with it a unique set of ethical implications. The role of the psychologist and determining the actual client, to whom the psychologist is providing services, can often become obfuscated. This blurring of lines is especially salient when working with clients on probation and parole status. One of the primary questions in these settings is whether the client is the individual sitting in front of the provider, whether the client is the correctional system, whether it is society at large, or a nebulous combination of all three. Because of the unclear nature of the role of the psychologist and client services, ethical concerns regarding informed consent can emerge. Determining if an individual client is officially mandated, voluntarily seeking services of their own volition, or unofficially coerced to seek treatment becomes a very difficult task for the psychologist to parse out.

Despite the specific and complex ethical issues in providing services in these settings, there appears to be a significant gap in the literature regarding informed consent. There is a paucity of

Received 12 December 2014 Revised 15 February 2015 Accepted 16 February 2015

DOI 10.1108/JCP-12-2014-0018 VOL. 5 NO. 4 2015, pp. 279-286, © Emerald Group Publishing Limited, ISSN 2009-3829 j JOURNAL OF CRIMINAL PSYCHOLOGY j PAGE 279

research that directly applies to the provision of psychological services for those on probation and parole, and especially on obtaining informed consent in these settings. This manuscript seeks to analyze several areas surrounding informed consent in probation and parole settings through an ethical framework. This paper will provide: a broad overview of the ethical considerations of obtaining truly informed consent within correctional settings; the importance of ensuring client understanding of the informed consent process; the issue of coercion and how it impacts upon treatment; assessing client voluntariness of seeking services; and recommendations for practitioners in these settings.

Informed consent

Informed consent is one of the primary ethical duties that practicing psychologists must abide by in modern times. According to Barnett et al. (2007), “Informed consent is a shared process in which the professional communicates sufficient information to the other individual so that she or he may make an informed decision about participation in the professional relationship” (p. 179). Throughout the American Psychological Association (APA) ethics code, informed consent can be implicitly found in virtually every standard and is explicitly stated in standards 3.10 Informed Consent, 8.02 Informed Consent to Research, 9.03 Informed Consent in Assessment, and 10.01 Informed Consent to Therapy (American Psychological Association (APA), 2010). Whenever psychologists provide professional services it is an ethical and legal imperative to provide informed consent before the onset of said services (APA, 2010; Knapp and VandeCreek, 2006).

There are several requirements listed within the APA ethics standards for ensuring that informed consent is truly obtained: the psychologist must use reasonably understandable language to obtain informed consent from the client, informed consent must be freely given unless services are mandated or court ordered, and when services are mandated the individuals are informed of potential limits to confidentiality and the anticipated activities that will take place in session (APA, 2010). But the spirit and intent of the ethics code goes beyond the letter of the law and does not involve the psychologist simply filling the minimum requirements necessary to within a legal context. Barnett and colleagues (2007) outline several considerations that a practicing psychologist should take into account in order to ensure that informed consent is truly obtained from the client. The client simply verbally confirming understanding does not meet the requirement or ensure that the information is being understood. Additionally, written records of informed consent agreements are now the standard in many practices. As opposed to simply having the written form be proof of informed consent or a way to protect the psychologist’s liability, a verbal review should be done with the client. This review must be informed by multicultural factors and tailored to the education and competence level of the individual client. Regardless of the setting in which he or she operates, it is imperative that the psychologist takes reasonable steps to provide a truly understandable informed consent process to their clients.

Informed consent for clients on parole/probation

The issue of providing informed consent within correctional settings becomes significantly more complicated when compared to the general practice of psychology. One of the primary questions for psychologists in these settings is determining whether a client is seeking services of their own volition or if they have been coerced. When a client is court ordered to seek a mental health evaluation or treatment services, it is often readily apparent through the referral process. As a condition of probation and parole, complying with treatment recommendations from mental health professionals is often mandated. However, when a referral is received from a probation/ parole officer (PO) or other staff members on an offender’s treatment team, the status of a client’s voluntariness for seeking services can become unclear. While it may be the staff member’s understanding that they are simply facilitating the referral process for the client to voluntarily seek services, the client may have an entirely different understanding of whether or not they have been mandated to undergo mental health services. The APA Ethics Code provides some guidance for correctional psychologists on informed consent. According to the APA (2010), Standard 3.10C Informed Consent, “When psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including

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whether the services are court ordered or mandated and any limits of confidentiality, before proceeding” (p. 1065).

The International Association for Forensic and Correctional Psychology (IAFCP) Practice Standards Committee (2010) released further standards to help guide practitioners in these settings. Standard C-7, Informed Consent, requires the psychologist to provide informed consent and document that the client has received information on: the diagnosis, the anticipated treatment, treatment alternatives, risks, anticipated outcomes and time frames. Additionally, they recommend that separate forms for informed consent be used for each specific purpose such as a psychological evaluation, assessment, and therapy.

While the standards listed in the APA ethics code and by the IAFCP helps to guide the spirit of informed consent for correctional mental health workers, the real-world application of the standard can be difficult to deliver in some settings. Haag (2006) identified several factors relating to informed consent that correctional psychologists in Canada faced that presented themselves as ethical barriers. The very nature and context of a correctional setting can make it difficult to determine if the client has given voluntary informed consent. The environment in which an offender presides often hinges on the idea of compliance to a strict set of rules. This is a necessity both in order for the offender to successfully function within the correctional setting and additionally to facilitate their transition out of correctional supervision and into the larger community. This strict adherence to rules and statements made by staff members in positions of authority can run counter to the traditionally voluntary delivery of psychological services. Even when something is phrased in a way that conveyed as a suggestion, within the context of correctional settings the client may perceive it as being mandatory or necessary to ease their living conditions. The client may perceive that there will be substantial consequences stemming from their compliance, which subsequently may impact their willingness to consent.

Furthermore, the issue of consent becomes even more complicated when it is determined that coercive forces may have caused substantial influence on the client’s decision to seek treatment but the individual still provides consent and wants to proceed with treatment. In this instance, it is the duty of the psychologist to assess the client’s underlying motivation for seeking mental health treatment and to ascertain their true level of voluntariness. If the client does not want treatment on their own accord but provides consent regardless of that fact, either to acquiesce to the wishes of their PO or other systemic factors, the psychologist must carefully consider how to proceed and what, if any, services will be provided that is in accordance with the ethics code and safeguards the wellbeing of the client (Haag, 2006).

Understanding of informed consent

As stated previously, one of the primary components of informed consent is that the client must understand the information and the implications for seeking services (APA, 2010, Standard 3.10). One of the most prominent reasons for obtaining informed consent and ensuring that the information is understandable to clients is to protect vulnerable populations. While traditionally thought to be those who are developmentally impaired, children, or those who are not deemed competent to provide consent, those in the criminal justice system are also a vulnerable population. There is often a perceived pressure to participate in treatment services, either on an implicit or explicit level. Rounsaville et al. (2008) examined the informed consent process of marijuana users referred from their probation officers to randomized clinical trials. Participants were referred by staff member within the criminal justice system but not mandated to participate. They were provided with a standardized informed consent consisting of both a written and verbal explanation consistent with APA Standard 8.02 Informed Consent to Research (APA, 2010).

Following the completion of the informed consent process, participants were asked to complete a brief four question multiple-choice measure assessing the client understanding of their informed consent. This measure tested areas that were covered during the informed consent process and included asking the subjects: how many treatment sessions would occur throughout the clinical trial, whether the subject knew that participation in the trial was voluntary, what types of

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treatments were offered in the study, and the name of the investigator who could be contacted if the subject had any questions.

Of the 130 participants who completed the measure, just over half (55 percent) of participants answered all four questions correctly, 30.8 percent answered three correctly, 11.5 percent answered two questions correctly, and 2.3 percent of participants answered only one question correctly. Furthermore, another finding relevant to this manuscript is that 81.5 percent of the subjects understood that their participation was voluntary. Despite the in-depth explanation of informed consent, a process that was arguably more detailed than most settings provide, there was still a significant lack of understanding of their rights by the subjects.

These findings are significant for a few reasons. First, it is a primary ethical duty of psychologists to ensure that the informed consent process is presented to the client in reasonably understandable language (APA, 2010, Standard 3.10). Second, the results of this study indicate that despite providing a standardized informed consent process, that many subjects lacked a fundamental understanding of their rights. The primary intent behind Standard 3.10 is to ensure that when providing voluntary services, that clients understand their rights and that psychologists respect client autonomy. Finally, the very context of the criminal justice system often blurs the line of client rights and clients are often unaware they have any autonomy or choice in this setting. The onus lies on psychologists to ensure that the way in which the informed consent is presented is tailored to the competence level of the individual client. Within probation and parole settings, intentional or unintentional coercive forces may be present to a higher degree than in other outpatient settings. The psychologist must confirm that the client truly has an appropriate understanding of the purpose of the treatment, their rights as clients, and most importantly if the services are voluntary or court-ordered/mandated.

Coercion

This section will explore the issue of coercion within probation and parole settings and how coercion impacts the informed consent process. The intent behind probation and parole is to help integrate offenders into society as productive citizens by providing a level of supervision to them, which provides sufficient structure and boundaries for them to succeed. For the offender, this places them in a position of being in a lower power differential than virtually every staff member within that system. The threat of being incarcerated or facing severe ramifications for non-compliance with rules and regulations is a constant reminder for offenders, and the correctional setting rewards compliance for demands that staff members place on the clients. This significantly comes into play when considering the provision of mental health services to probationers and parolees. Even when the intent of providing treatment is purely to help the client, such coercive forces may be significantly at play in the clients’ decision to undergo treatment. It is important to note that coercion is not inherently illegal, unethical, or contraindicated for treatment, especially within correctional settings. Mental health treatment may indeed be a required component for an offender to be on probation, and mandating treatment is often well within a PO’s rights. Coercion can be effectively used in these cases to elucidate to the offender the consequences of non-compliance with their supervision requirements. However, it is the responsibility of the psychologist to distinguish between mandated treatment and when a client is voluntarily seeking services. Often times referrals are unclear as to whether the treatment is voluntary or mandated, and providers must take steps to determine if coercion has been used to encourage the offender to voluntarily seek treatment and to inform the client of their rights.

Polcin and Greenfield (2003) explored the use of coercion among probation officers to mandate substance use treatment. Coercion in this study was primarily defined as using the threat of possible legal ramifications in order to obtain compliance with treatment. The researchers provided a survey to nine probation departments in California of which 145 probation officers participated. The survey consisted of a 13-page self-administered questionnaire and surveyed four major areas: characteristics of the officer’s specific caseload, vignettes featuring offender case examples which assessed how often the probation officer mandated treatment, perceptions of their department and beliefs about substance abuse treatment, and demographic characteristics as well as the probation officer’s personal experience with alcohol. The caseload characteristics assessed the way in which the officers used coercion to mandate treatment and the way in which

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referrals were made to their clients. The perceptions section asked for the officer’s perception of treatment resources as well as their perception as to how other officers, both within their department and in the criminal justice system at large, referred their respective caseload to services. Beliefs about substance abuse treatment ascertained the probation officer’s belief about the effectiveness of substance abuse treatment, both coerced and voluntary, as well as those on probation’s self-efficacy in dealing with substance abuse. Finally, the last section dealt with the probation officer’s experience with alcohol and specifically if they or someone in their family had difficulty with substance use and/or received treatment in the past.

The analysis of the study revealed some meaningful findings regarding probation officers and their use of coercion to mandate treatment. The researchers found that overall, probation officers support the use of coercion when referring probationers for treatment. However, they typically do not rely on coercion as a first step, but rather utilize it after encouraging clients to seek services on their own accord. Additionally, the general perception among the respondents was that other POs in their department and the correctional system at large used coercive methods to mandate treatment, and that the officer’s own use of coercion would be supported. Finally, the beliefs about the effectiveness of substance abuse treatment showcased a broad belief in treatment efficacy, and this led to a higher rate of using coercion in treatment referrals. This study indicates that there is a culture of acceptance of coercive methods among probation officers. While this appears to be acceptable, and in some cases necessary for the job of a probation officer, the psychologist must understand the forces at play that led to the client seeking services in the first place.

Coercion has a strong negative connotation especially in the realm of mental health treatment. Many providers have a visceral reaction to the idea of coercion and believe it’s’ use is antithetical to the provision of psychological services. While it is indeed preferable for services to be sought voluntarily, this ideal is not always achievable, especially within the context of correctional settings. Coercion may simply reflect the reality of the setting and the psychologist must adapt to fit into the context of the environment in which they operate. However, despite not being ideal, this does not necessarily mean that if coercion is utilized that the overall treatment outcomes will be negative. Prendergast et al. (2008) examined substance-using offenders’ perception of coercion and the influence that had on motivation for and completion of substance abuse treatment. Data were collected as a part of the Treatment System Impact (TSI) and outcomes of Proposition 36, which assessed the impact of the Substance Abuse and Crime Prevention Act (SACPA). SACPA is a California law that allows for non-violent drug offenders to receive probation with treatment as opposed to incarceration or probation without treatment. As a result this study utilized a large sample of individuals (7,416) who agreed to provide their data as part of the TSI.

The TSI included multiple measures that the participants completed: the Addiction Severity Index (ASI) which examined problem areas for substance users, the Stages of Change Readiness and Treatment Eagerness Scale (SOCRATES) which assessed readiness for change among substance users, and the MacArthur Perceived Coercion Scale (PCS) which assessed the client’s perception of coercion to undergo treatment (Bovasso et al., 2001; Miller and Tonigan, 1996; Gardner et al., 1993). Overall, scores on the PCS indicated that, upon entry, there was a relatively low amount of perceived coercion on the part of the participants. This indicates that even when treatment is mandated as a condition of probation, the general perception among the clients was that they retained their autonomy while entering treatment. Additionally the correlation between client motivation and level of perceived motivation was relatively small. This suggests that they are separate constructs, and that even clients who have a higher level of perceived coercion may not necessarily experience a detrimental impact on their motivations for treatment. Additionally, the level of perceived coercion was not statistically significant in predicting treatment completion or in predicting if a subject would be arrested for drug offenses. While this may run counter to intuitive reasoning, this is suggestive of the fact that coercion is not contraindicated and is not necessarily negatively correlated with treatment success.

Voluntariness

Mental health providers must ensure that they themselves understand if the services have been mandated as well as ensuring that the client has an understanding of their own status. In recent

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literature this concept has been labeled voluntariness. In Applebaum et al. (2009) examination of voluntariness in research, a subject’s voluntariness was formed primarily from the level of exposure a subject has to deliberate and external influences which influenced their decision to participate in the study. Significant parallels can be drawn between these influences in participating in research and for those seeking mental health services.

Stiles et al. (2011) analyzed the assessment of voluntariness during the informed consent process in research with prisoners. The researchers proposed a consent process when conducting research with prisoner populations and consisted of: disclosing relevant clinical information, testing the client’s level of comprehension, and assessing for client voluntariness. The addition of the voluntariness assessment allows for a more intentional evaluation of the client’s voluntariness status as opposed to simply allowing for clinical judgment or intuition, which can be misleading. This assessment consists of three parts for determining the client’s status. The first step is the creation of a list of possible coercive influences relevant to the research population. Next, the researcher should develop questions to determine which of those factors may have an undue influence on the specific subject being assessed as well as the level and magnitude that those factors may have in influencing the subject. The third and final step is identifying an alternative action plan if coercion has been identified and if the subject has been identified as being involuntary. In addition to aiding the assessment of voluntariness in research settings with prisoners, this model could feasibly be adapted to other correctional settings and other offender groups.

Recommendations

There are several recommended steps that may be implemented in correctional settings to better ensure that informed consent is truly obtained and to safeguard offenders from harm. It is crucial that these steps be tailored to the unique context of each individual setting, but it is plausible that they can be effectively applied across many different correctional settings:

1. Develop a comprehensive informed consent process, which includes an assessment of voluntariness: Stiles and colleagues’ (2011) model for informed consent for prisoners in research settings can feasibly be adapted to other groups of offenders in a multitude of settings (i.e. research and treatment). In conjunction with other treatment team members, psychologists should develop a list of coercive influences that may be reasonably considered as possible to cause undue influence on the offender. Examples may include, possible coercion by a PO or treatment team, foreseeable uses of the mental health services and information obtains, or pressures from their legal team. This list should be tailored to the specific context in which the psychologist operates and in which the client resides in order to fully help determine the client’s status.

2. Ensure client understanding of informed consent and implications of treatment: Rounsaville et al. (2008) demonstrated that despite providing a standardized informed consent process that many clients still do not demonstrate a full understanding of the implications of treatment. Mental health services within correctional settings may have more significant ramifications for clients than in civilian environments. Clinicians must spend the time necessary to explain informed consent to the client in accordance with their competence levels and taking multi-cultural factors into account. A brief verbal questionnaire based on the informed consent procedures may be helpful for clients to indicate understanding as opposed to a simple verbal agreement.

3. Implement standardized operating procedures for how to provide services based on level of coercion and/or voluntariness: as stated previously, coercion is often necessary within probation and parole settings and not inherently detrimental to an offender’s wellbeing. However, the onus is on the psychologist and other mental health professionals within the agency to determine if coercion has been used inappropriately and/or if harm is being done to the client. If mental health treatment is truly voluntary or if it is a condition of offender supervision than how to proceed may be relatively straightforward. However, as is often the case, the answer often lies somewhere in the middle of the spectrum between the two continuums. The treatment team should work to develop operating procedures so as to standardize ways to work with clients based on various levels of coercion and voluntariness.

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Conclusion

Like many ethical issues within the field of psychology, informed consent is not always easy to provide and maintain accordance with the ethics code. This is especially salient within probation and parole settings. There are outside influences and factors unique to this setting that psychologists must take into account in order to ensure that they are fulfilling their ethical duties and appropriately obtaining informed consent. Some of these factors include recognizing how coercion is being used within a psychologist’s operational environment, ensuring that the client truly understands the informed consent process and tailoring it to their specific needs, clarifying the specific role of all parties involved, and assessing for voluntariness of the client. Further research should continue to identify unique variables within the context of probation and parole settings to identify further ways to adapt the informed consent process to this context as well as to provide ethical guidelines for providing psychological services to those on probation and parole. Only by continuing to examine these areas, can we fulfill our ethical obligation and ensure that the rights of this vulnerable population are being protected.

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