Ethical Challenges in Serving Families Gerald P. Koocher, Ph.D., ABPP DePaul University

Ethical Challenges Ethical Challenges in Serving Familiesin Serving FamiliesEthical Challenges Ethical Challenges in Serving Familiesin Serving Families

Gerald P. Koocher, Ph.D., ABPPGerald P. Koocher, Ph.D., ABPP

DePaul UniversityDePaul Universitywww.ethicsresearch.com

© Gerald P. Koocher, Ph.D., 2014, All Rights Reserved 2

Psychological work with families differs

significantly from work with individuals in many respects that

have important ethical implications.

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Families often include…

• People with non-congruent, competing, or conflicting interests.

• People who wish to keep secrets from each other.

• People who do not wish to be totally candid with each other.

• People with differing levels of decisional capacity and dependence.

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People with non-congruent, competing, or

conflicting interests.

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People who

want to keep

secrets from each other.

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People who don’t wish to be totally candid with each

other.

• Do I look fat in this?

• Aren’t my parent’s wonderful?

• I’m right, aren’t I?

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People with differing levels of

decisional capacity and dependence.

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How are Child Clients Different from Adults?

• Legal Status– Minors and Emancipated Minors

• Example: Dominique Moceanu

• Socialization Influences– The case of Ricky Ricardo Green

• Time perspective• Concept manipulation abilities

– Piagetian Frameworks

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Legal Status

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Socialization Influences

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Time perspective


Concept manipulation capabilities

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Ability to anticipate Consequences?

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Therapy Involving Couples or Families

• When psychologists agree to provide services to several persons who have a relationship (such as spouses, significant others, or parents and children), they take reasonable steps to clarify at the outset – (1) which of the individuals are clients/patients

and – (2) the relationship the psychologist will have

with each person. This clarification includes the psychologist’s role and the probable uses of the services provided or the information obtained.

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Therapy Involving Couples or Families

• If it becomes apparent that psychologists may be called on to perform potentially conflicting roles (such as family therapist and then witness for one party in divorce proceedings), psychologists take reasonable steps to clarify and modify, or withdraw from, roles appropriately.

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Remember to discuss…

• Rules for disclosure of information across the family.

• Reminder that no one can predict the course of or changes in human relationships.

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Isn’t it obvious?• Psychologists do not

engage in sexual intimacies with individuals they know to be close relatives, guardians, or significant others of current clients/patients. Psychologists do not terminate therapy to circumvent this standard.

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Multiple Relationships in the 2010 Code

• A multiple relationship occurs when a psychologist is in a professional role with a person and – (1) at the same time is in another role with the

same person,– (2) at the same time is in a relationship with a

person closely associated with or related to the person with whom the psychologist has the professional relationship, or

– (3) promises to enter into another relationship in the future with the person or a person closely associated with or related to the person.

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Multiple Relationships in the 2010 Code

• A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists.

• Multiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical.

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Multiple Relationships in the

2002 Code • If a psychologist finds that, due to

unforeseen factors, a potentially harmful multiple relationship has arisen, the psychologist takes reasonable steps to resolve it with due regard for the best interests of the affected person and maximal compliance with the Ethics Code.

• When psychologists are required by law, institutional policy, or extraordinary circumstances to serve in more than one role in judicial or administrative proceedings, at the outset they clarify role expectations and the extent of confidentiality and thereafter as changes occur.

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Who’s in the record?

• Psychologists create, and to the extent the records are under their control, maintain, disseminate, store, retain, and dispose of records and data relating to their professional and scientific work… – (1) facilitate provision of services later by them or

other professionals, – (2) allow for replication of research, – (3) meet institutional requirements, – (4) ensure accuracy of billing and payments, and – (5) ensure compliance with law.

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Involvement of 3rd Parties

• When psychologists agree to provide services to a person or entity at the request of a third party, psychologists attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes the role of the psychologist (e.g., therapist, consultant, diagnostician, or expert witness), an identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality.

Understanding the subtleties of confidentiality

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APA’s fundamental statement on confidentiality• Psychologists have a primary obligation

and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship.

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Limits on Confidentiality per 2010 APA Ethics Code• Psychologists discuss with persons (including,

to the extent feasible, persons who are legally incapable of giving informed consent and their legal representatives) and organizations with whom they establish a scientific or professional relationship – (1) the relevant limits of confidentiality and– (2) the foreseeable uses of the information

generated through their psychological activities.

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Limits on Confidentiality per 2010 APA Ethics Code• Unless it is not feasible or is

contraindicated, the discussion of confidentiality occurs at the outset of the relationship and thereafter as new circumstances may warrant.

The challenge of multiple-client therapies

• When considering work that involves more than one client in the room the therapist should:– Think through the rationale for who will be included (i.e.,

screening in group treatment, rationales for collateral engagement, planning rules of engagement and cautions for couple/family work).

– Who (if anyone) is the primary client.– What rules of conduct or expectations apply.– What limitations apply (e.g., client for a limited purpose

or contacts outside of the group context).– What hazards apply (e.g., emotional confrontation in

group treatment or break-up of couple)

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• When more than one person hold “client” status the clinician should:– Clarify the duties owed to each person and the

limitations on those obligations at the outset.– Document having done so.

Multiple Client Therapies and Records

• Groups– No privilege held in relationship to

other group members

• Couples– What is the couple’s contract?

• Families– What is the contract?– What will parents allow?– What about break-ups?


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Sharing information about children’s psychotherapy with their parents

• Basic concept: therapy has to be safe for all participants and parents need to know info about their children that allows them to fulfill parental responsibilities.

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Sharing information about

children’s psychotherapy with their parents

• Children should have consensual confidentiality rights.

• Parents should have regular progress reports.

• Therapists may breach a child’s confidentiality non-consensually to prevent serious harm, disclosing only info necessary for parents to protect.– Clarify meaning of serious harm to avoid

confusion.

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• Therapists may breach a child’s confidentiality non-consensually to prevent serious harm, disclosing only info necessary for parents to protect.– Clarify meaning of serious harm to avoid confusion.

© Gerald P. Koocher, Ph.D., 2014, All Rights Reserved

When the client is a minor

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What secrets will parents allow their children?

Contract at outset; but minds can change

Long-term issues◦ When grown children

access their own childhood records.

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Confidentiality

Confidentiality Hazards & Mandated Reporting

Dealing with Problematic Caretakers

Basic Principles• police power

– The state’s authority to protect the community and ensure domestic tranquility.

• parens patriae– The state’s authority to act as the “general

guardian of all infants, idiots and lunatics.”• William Blackstone, Commentaries, 47

Mandated Reporting

Child abuse/neglect– “Reasonable cause to believe” or “reasonable

suspicion”– Sexual abuse may require additional actionsAbuse/neglect of dependent persons– Elderly

• May include financial abuse

– Disabled• May allow more discretion by practitioner

– Dangerous Driver (including elders and neurologically impaired)

– Firearm ID laws (Illinois FOID and NY SAFE acts)

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Mandated reports• Why: protection of the vulnerable and the

practitioner.• Who, what, and to whom…

38© Gerald P. Koocher, Ph.D., 2014, All Rights Reserved

Illinois Firearm Owners Identification Act (430 ILCS

65)• On July 9th 2013, Illinois passed HB 183 (

Public Act 098-0063), also known as the Firearm Concealed Carry Act. The Firearm Concealed and Carry Act expands the reporting requirements for healthcare facilities and physicians, clinical psychologists and qualified examiners to include any person that is: adjudicated mentally disabled person; voluntarily admitted to a psychiatric unit; determined to be a "clear and present danger"; and/or determined to be "developmentally disabled/intellectually disabled".

• The Illinois FOID Mental Health Reporting System website provides mandated reporters with 24-hour and immediate access to report an individual that is receiving mental health treatment or is determined to be a clear and present danger, developmentally disabled or intellectually disabled.

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626.5561, Minnesota Statutes 2007: REPORTING OF PRENATAL EXPOSURE TO CONTROLLED

SUBSTANCES---

“A person mandated to report… shall immediately report to the local welfare agency if the person knows or has reason to believe that a woman is pregnant and has used a controlled substance for a nonmedical purpose during the pregnancy, including, but not limited to, tetrahydrocannabinol, or has consumed alcoholic beverages during the pregnancy in any way that is habitual or excessive.

Any person may make a voluntary report if the person knows or has reason to believe that a woman is pregnant and has used….

An oral report shall be made immediately by telephone or otherwise. An oral report made by a person required to report shall be followed within 72 hours, exclusive of weekends and holidays, by a report in writing to the local welfare agency. Any report shall be of sufficient content to identify the pregnant woman, the nature and extent of the use, if known, and the name and address of the reporter.”

40© Gerald P. Koocher, Ph.D., 2014, All Rights Reserved

Psychologist Accused of Failing to Report Child Abuse

• POSTED: 6:35 am EDT April 9, 2009 http://www.theindychannel.com/news

• NORTH VERNON, IN -- A psychologist was arrested in his Jennings County office Wednesday on a charge of failing to report child abuse or neglect. Police said Dr. Robert Dailey did not report a case in which a juvenile suspect in a child molestation investigation told him of inappropriately touching another juvenile during an appointment. The juvenile's case went through the juvenile justice system.

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Bottom line: know the jurisdictional rules that apply to your practice.

• Including electronic or remote practice!

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Informed Consent

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Essential Components of Informed Decision

Making• Information

– Access

• Understanding– Comprehension

• Competency• Voluntariness• Decision Making Ability

– Reasoning Capacity

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What are you asking for when you say, “Is that okay with you?”

• Consent– Competent, Knowing, Voluntary

• Assent– Veto Power– Therapeutic versus non-therapeutic

context• Permission

– Proxy Consent– Substituted Judgment

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Informed Consent Discussion Topics

• Provide the same basic information given to individual clients.

• Confidentiality limits.• Access to records.• Normal conflicts of interests in

multiple client therapies.• Children’s rights and limitations in

these situations

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What principles apply to informed consent to

treatment?

• Inform clients as early as feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality.

• Provide sufficient opportunity for the client to ask questions and receive answers.

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APA 2010 Code Comments on Informed

Consent• When psychologists conduct research or

provide assessment, therapy, counseling, or consulting services in person or via electronic transmission or other forms of communication, they obtain the informed consent of the individual or individuals using language that is reasonably understandable to that person or persons except when conducting such activities without consent is mandated by law or governmental regulation or as otherwise provided in this Ethics Code.

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APA 2010 Code Comments on

Informed Consent• For persons who are legally incapable of

giving informed consent, psychologists nevertheless– (1) provide an appropriate explanation, – (2) seek the individual's assent, – (3) consider such persons' preferences and best

interests, and – (4) obtain appropriate permission from a legally

authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual’s rights and welfare.

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APA 2010 Code Comments on

Informed Consent

• When psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding.

• Psychologists appropriately document written or oral consent, permission, and assent.

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How about informed consent other than

treatment?• Psychologists may dispense with informed

consent only – (1) where research would not reasonably be

assumed to create distress or harm and involves • (a) the study of normal educational practices, curricula,

or classroom management methods conducted in educational settings;

• (b) only anonymous questionnaires, naturalistic observations, or archival research for which disclosure of responses would not place participants at risk of criminal or civil liability or damage their financial standing, employability, or reputation, and confidentiality is protected;

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Who Can Consent to Treatment

for a Minor Child?• The Child

– Confirm applicability of state laws.

• The Parents– Joint custody means either parent may

consent unless court decrees state otherwise.

– With joint custody either parent can demand an end to therapy of minor child.

– Resisting parental demand could result in disciplinary action.

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of Minor Child?• When legal/physical custody is

divided:– Seek consent from both parents prior

to evaluating or treating.– Request copy of divorce decree or

letter from parent’s attorney attesting to their authority.

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of Minor Child?

• When a parent is unavailable or when parental contact might reasonably be expected to harm the child:– Seek consultation.– Note pros and cons of non-contact in

your records.

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Parental disputes regarding child’s

treatment• Consent to your services does not

equal acceptance of payment responsibility.– Clarify this in advance, preferably in

writing, with the party accepting responsibility.

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Who is the client when a child enters therapy?• Does a psychotherapist-client relationship

exist when a parent participates in services only (or chiefly) to aid the child?– If parent is not considered a client he/she

should be specifically informed before professional activities begin.

– Information provided in such contexts is confidential, but may not be privileged.

– Document the parent’s “client” status in writing

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Who is the client when a child enters therapy?

• Usual best option: designate parents as clients for limited purposes in your records and inform them.

Understanding the subtleties of confidentiality


When the client is a minor


What secrets will parents allow their children?

Contract at outset; but minds can change

Long-term issues◦ When grown children

access their own childhood records.





• Therapists may breach a child’s confidentiality non-consensually to prevent serious harm, disclosing only info necessary for parents to protect.– Clarify meaning of serious harm to avoid confusion.


Parent and Child Relationships

Traditional and Not so Traditional

Parent/Child Issues

Parental Right of Control

• Pierce v. Society of Sisters (1925)– Private school okay

• Meyer v. Nebraska (1923)– OK to teach German

© Gerald P. Koocher, Ph.D., 2014, All Rights Reserved

• Prince v. Massachusetts (1944)– Betty M. Simmons, age 9– Sara Prince aunt and custodian– The issue: Do religious convictions

trump child labor laws?– “Parents may be free to become

martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before … they can make that decision for themselves.”

Guardianship of Phillip B. (1983)

• Herbert and Patsy H. seek to take Guardianship from Warren and Patricia B.

• “…substantial evidence adequateley supports the finding that parental custody would have resulted in harmful deprivation of…human needs contrary to Philip’s best interests.”

Parham v. J. R. (1979)

• The reluctant volunteers (children voluntarily hospitalized by parents)

• Affirmative duty to release recovered patient?• Least restrictive treatment?• “Admissions’ staffs…acted in a neutral and

detached fashion.” • Georgia met due process requirements• Contrast with Fare v. Michael C., 442 U.S. 707

(1979)

Roe v. Doe Court of Appeals of New York, 1971. 29 N.Y. 2d 188, 324 N.Y.S. 2d

• 20 year old Roe moves out of dorm at University of Louisville– Dad (attorney in NY) finds out and cuts off money– Daughter sells car against Dad’s wishes and lives of sale

income.– Daughter seeks continuing support to age 21.

• Dad (NY attorney) was not “unreasonable or capricious.”

• Daughter subjected herself: “to her father’s lawful wrath…abandons her home…forfeits her support.

Diehl v. State (1985)• Daughter of Barbara Diehl (age

11) gave info to police; police search and find pot.

• Motion to supress evidence denied.

• Confidentiality of parent-child relationship?

Judicial Notice of Child Development:

What do Judges Think?

What we want to believe:

• Judges care about child welfare.• Judges believe in good science.• Judges understand child

development (or want to).• Going into court and telling judges

what we know will carry the day.

Reality:• Most judges do care about child welfare,

but they (must) care more about the law.• Judges often have trouble sorting out

what’s really valid data and what it means.

• Telling judges what you know may not help accomplish what you want, if you don’t understand legal issues, context, and precedent.– P.S. Don’t forget politics & Zeitgeist (all

politics is local and some judges are elected)

Shelley v. Westbrooke (continued)

• December, 1816 – Harriet commits suicide by drowning in Hyde Park.– Percy decides to raise the kids, but MGPs say

“No!”– Percy marries Mary (to look better in custody

dispute?).

• Though fathers had nearly absolute rights under then-existing English law, Shelley became one of the first fathers in English history to lose custody of his children.

• The court articulates the “tender years” doctrine.– The court described Percy as “profligate

and dissolute,” but focused on his writings as an avowed atheist.

– The Court of Chancery mostly relied on this, not on his infidelity or unreliability.

– Lord Chancellor reasoned: Shelley endorsed atheism and sexual freedom, and would teach his children to do the same.

Shelley v. Westbrooke (continued)

U.S. Origin of Tender Years

• Maryland decision in Helms v. Franciscus, 2 Bl. Ch. (Md.) 544 (1830). – While recognizing the general

rights of the father, the court stated that it would violate the laws of nature to 'snatch' an infant from the care of its mother.

Palmore v. Sidoti, 466 U.S. 429 (1984)

• Anthony and Linda Sidoti, both Caucasians, were divorced and Linda was awarded custody of their 3 year old daughter, Melanie. One year later, Anthony sought custody of the child after Linda began cohabitating with Clarence Palmore, an African-American. The Florida courts awarded Mr. Sidoti custody of the child, arguing that the child would be more vulnerable to social stigmatization in a racially mixed household. No evidence was introduced that indicated Ms. Sidoti was unfit to continue the custody of the child.

• In a unanimous decision, the Court held: “The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother.”

• "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." The Court thus held that the decision of the lower courts was an unconstitutional denial of rights under the Fourteenth Amendment.

Goldstein v. Goldstein (1975). Supreme Court of Rhode Island.

115 R.I. 165, 341 A.2.d 51.• In the parties' divorce decree, the father was awarded custody of the daughter. Shortly after the decree was entered, the father and the daughter moved to Israel. They did not return for three years. The mother filed suit to gain custody of her daughter. During the hearing, the daughter (age 9) the trial court judge in chambers she wished to live with her father in Israel. The trial court awarded custody to the father and allowed him to return with her to Israel, but ordered her to visit the mother for four weeks every summer.

• At the wife's request the trial justice took judicial notice of the threat of war/terrorist activity in Israel; he also took notice, upon his own motion, that this country has been engaged in more violent wars than Israel during the past 25 years and that “There's an awful lot of violence here."

• The wife presented testimony that the child, although reared in the Jewish religion, would not be considered a member of that faith under Jewish law until she had been converted as had her mother.

• On appeal, the court affirmed. The court held that the trial court did not err by giving substantial weight to the daughter's preference when awarding custody to the father because the factors favoring each of the parents was nearly equal.

• “Ann is a very intelligent 9.5 year-old girl who has had more burdens placed on her at a very young age than most youngsters and (has coped) with those problems and suffers no emotional damage as a result.“

Oliver Brown v. Board of Education of Topeka, Kansas • The Supreme Court announced its

unanimous decision on May 17, 1954. It held that school segregation violated the Equal Protection and Due Process clauses of the Fourteenth Amendment. The following year the Court ordered desegregation "with all deliberate speed."

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

• The decision:– On 17 May 1954 the Supreme

Court handed down a 9-0 decision which stated, in no uncertain terms, that "separate educational facilities are inherently unequal."

Kenneth B. Clark & Mamie Phipps Clark• During the 1940s, the Clarks designed a test to

study the psychological effects of segregation on black children.

• In 1950 Kenneth Clark wrote a paper for the White House Mid-Century Conference on Children and Youth summarizing the research and attracted the attention of Robert Carter of the NAACP Legal Defense Fund.

• Carter believed that Clark's findings could be effectively used in court to show that segregation damaged the personality development of black children.

• The Supreme Court specifically cited Clark's 1950 paper in the Brown decision.

Naughty Children

Roper v. Simmons

• On Sept. 9, 1993, Christopher Simmons broke into the St. Louis home of Shirley Crook intent on robbing and then killing her, presumably for the thrill of the crime. He and a friend tied her with duct tape and drove to a nearby state park. He wrapped her in electrical cable, leather straps and a towel before pushing her off a bridge into the Meramac River where she drowned.

• According to prosecutors, Simmons had talked about this plan with his friends on several occasions, assuring them they wouldn't be punished because they were juveniles in the eyes of the law. A doctor who evaluated him years after the incident added that Simmons had drunk12 beers and smoked marijuana on the evening of the murder.

Roper v. Simmons

• APA's Position: APA submitted an amicus brief together with the MoPA presenting scientific evidence to assist in resolving critical empirical questions relevant to the legal standards governing the death penalty including whether the recognized purposes of the death penalty – deterrence and retribution – apply to 16 and 17-year-olds as a group:– Behavioral research on the developmental

characteristics of late adolescents, featuring recent studies from the MacArthur Foundation’s Research Network on Adolescent Development and Juvenile Justice, a collection of experts in psychology, sociology, public policy, law and legal practice.

Roper v. Simmons

– Research and expert opinion about the characteristics of adolescents such as less mature decision-making, impulsivity, risk-taking, peer orientation, temporal perspective and vulnerability to coercion and false confession.

– Recent relevant MRI research on brain function suggesting that the brain continues to develop through young adulthood in areas that may bear on adolescent decision-making.

– Assertions that a categorical exclusion of 16 and 17-year-olds from the death penalty is warranted based on the research and the fact that assessment of character and likelihood of dangerousness as an adult in the death penalty context cannot be sufficiently reliable to satisfy constitutional standards.

Roper v. Simmons

• Result: In a 5-4 opinion delivered by Justice Anthony Kennedy, in March 2005, the U.S. Supreme Court ruled:– Standards of decency have evolved so that

executing juvenile offenders who committed while younger than 18 is “cruel and unusual” punishment” prohibited by the Eighth Amendment.

– The majority opinion used several of APA’s arguments in reaching its conclusion. In his dissent supporting the death penalty for juveniles, Justice Scalia asserted that research provided by APA in a 1989 case involving parental consent laws was inconsistent with APA’s position in Simmons.

Roper v. Simmons

School Daze


Psychologists, Kids, and Schools: Special Ethical Concerns

Who is the Client?The School Board?The Principal?The Parents?The Child?Who is most vulnerable?

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• Organizational Demands versus Child Client Needs– Incongruent interests– Autonomy in the context of

organizational structure– Service needs and limited budgets

• Forrest v. Ansbach

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Psychologists, Kids, and Schools: Special Ethical Concerns within the

School

Legitimacy of token economies, rewards, and aversive controls

Use of “time out” Preventive exclusion Post hoc support for

administrative decisions

Pygmalion effects

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Psychologists, Kids, and Schools:Special Ethical Concerns

• Privacy and Confidentiality– What goes into school records– Who has access– “Need to know: paradigm

• Psychologist as “whistle blower” and mandated reporter in absence of administration action

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• School-based research– Merriken v. Cressman: “prediction of drug

and alcohol abuse” in Norristown, PA schools opposed by parent and ACLU

– “Opt-out ConsentConsent” • Delancy et al. v. Gateway School District

– Prediction of school-based violence

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Psychologists, Kids, and Schools: Special Ethical Concerns Extending

Home

• Substance abuse• Domestic

violence• Academic

dishonesty• Disciplinary

actions:– Detention– Suspension– Expulsion

• Attendance• Harassment and

bullying (school violence)

• Social needs• IEP appeals

Documents

Ethical Challenges in Serving Families Gerald P. Koocher, Ph.D., ABPP DePaul University