Preface The intended readership of this volume is the full range of behavioral scientists, mental health professionals, and students aspiring to such roles who work with children. This includes psychologists (applied, clinical, counseling, developmental, school, including academics, researchers, and practitioners), family counselors, psychiatrists, social workers, psychiatric nurses, child protection workers, and any other mental health professionals who work with children, adolescents, and their families. Working with children is both rewarding and demanding.
The work is fraught with more acceptance of responsibility, confusions, intrusions, and potential ambiguity among the various players in the system than with any other clinical population. Although unfortunate, it is perhaps no wonder that many mental health professionals attempt to avoid working with children altogether, often citing concern about potential legal and ethical dilemmas. It is not that such professionals dislike or are unsympathetic towards children. Rather, they are concerned about what people who are legally defined as minors bring along, and not usually by their own choice, into a professional relationship.
Those who work with children cannot always count on dealing with loving and cooperative parents who will make appropriate sacrifices for their children or give mental health professionals appropriate latitude to do their work according to their own best judgment. Professionals cannot rely on local, state, or federal laws and policies related to children to say ¦ This original manuscript was published by the University of Nebraska Press, but is currently out of print. The un-copy-edited raw manuscript is made available to students and scholars in this form at no charge.
The authors retain all rights to the material. Please cite as: Koocher, G. P. & Keith-Spiegel, P. C. (1990). Children, Ethics, and the Law: Professional Issues and Cases. Lincoln, Nebraska: University of Nebraska Press. © Gerald P. Koocher and Patricia Keith-Spiegel, 1990, all rights reserved Preface ii what they mean in easily interpretable language or to never contradict or preempt each other. Nor can we assume that community agencies and the courts will provide prompt, highly competent, compassionate and well-orchestrated services.
We cannot even rely on our own professional associations to have ethics codes or other information that deliver clear guidance as to how a member of the profession should proceed in a given circumstance related to children. All of these factors combine with continuing disagreements about the meaning and desirability of increasing children’s rights to self-determination. Although there is a growing recognition of the autonomy of children and respect for their input to matters affecting them, there remains a general lack of consensus as to when and how children’s input should be considered, even in everyday matters.
Despite the risks and uncertainties that surround professional work with children, the need for such professionals is greater than ever before. Demand for such services in increasing, even as the number of individuals in training as child specialists declines. This book introduces the reader to a variety of ethical and legal dilemmas that may arise for mental health professionals in the course of their everyday work with children, adolescents, and their families.
Although we are not always able to offer a definitive action that will be successfully applicable in every similar instance, we aspire to give sound general advice, to aid the reader in identifying the key factors to take into account, and to help with the formulation of decision-making strategies. We have attempted to cover a broad spectrum of professional functions and work setting contexts such as counseling in the schools, psychotherapy in private practice, research in the university laboratory, and serving as an expert witness in court.
We also attempted to cover a wide range of ethical-legal dilemmas reflecting the peculiar twists that unavoidably occur when children are involved. These include special considerations related to confidentiality and record keeping, consent to treatment and research, and psychological assessment of children. It was, of course, impossible to cover every conceivable topic in a single volume, so no inference about the lesser importance of uncovered materials should be made. We make frequent use of case vignettes to illustrate the ethical and legal dilemmas under discussion.
Many of these incidents are based on ethics files of professional associations or public domain sources, usually litigated cases. The authors’ own consultation experiences provide another major source of case material. In instances where the sources are confidential, we have used a variety of techniques to disguise the incident and the identity of the actual people involved. Specific reference to actual persons living or dead is not intended. The use of bogus names in case material is meant to enhance readability of the text, and is in no way intended to trivialize the significance of the ethical issues involved.
Please cite as: Koocher, G. P. & Keith-Spiegel, P. C. (1990). Children, Ethics, and the Law: Professional Issues and Cases. Lincoln, Nebraska: University of Nebraska Press. © Gerald P. Koocher and Patricia Keith-Spiegel, 1990, all rights reserved Preface iii We are also grateful to our students and to the large number of colleagues (listed below) who contributed ethical dilemmas or problems to us via the ethics casebook project of the Section of Clinical Child Psychology (of APA’s Division of Clinical Psychology). David Hayes Kenneth D. Herman William F. Hodges Jane Irion Grace R. Kalfus Sophie L.
Lovinger Ramasamy Manikam Audrey Ricker Lois J. Rifner Michael C. Roberts Gloria M. Roque Lanning S. Schiller Audrey Sistler F. Beth Stone Elaine Sweeney, RSM June M. Tuma Margaret Witecki Deborah Young-Hyman Virginia Youngren Kristi Alexander Russell Bauer Frank H. Boring Emily Bronfman Debra Carmichael Robert Cornnoyer Sheila M. Eyberg Edward D. Farber Eileen Fennell Jacqueline Goldman S. J. McKenzie D. Louise Mebane Michael D. Miller Linda L. Reed Elizabeth C. Rickitt Peter Goldenthal Nancy Grace Linda J. Gudas The routine methods of designating the principals in disguised case materials (e. g. , “Dr. B.” or “the child”) were avoided in favor of contrived names.
We have found this technique useful in teaching and improving the readability of the text. We do not in any way intend to trivialize the importance of the issues at hand, yet we also wanted to assure that the names of our characters were unlikely to correspond to the names of real people. Any similarities which remain, despite our efforts, are purely coincidental and in no instance resemble the actual names of the principals. The exception to this rule is that when citing public domain cases we use the real names of the parties and cite the relevant case law or public source.
As a convenience to readers, we have also included a glossary of important cases described in this volume. Finally, we wish to extend our special thanks to our colleagues Gary B. Melton and Dee Shepard for their thoughtful review of the manuscript and detailed suggestions for improving it. The manuscript is significantly improved as a result of their efforts. Please cite as: Koocher, G. P. & Keith-Spiegel, P. C. (1990). Children, Ethics, and the Law: Professional Issues and Cases. Lincoln, Nebraska: University of Nebraska Press. © Gerald P. Koocher and Patricia Keith-Spiegel, 1990, all rights reserved.
Chapter 1 1 CHAPTER 1 Introduction and Basic Concepts The Law versus Ethics: Rambo Meets Bambi Most movie goers will have little difficulty grasping the contrasts between Rambo and Bambi. The cinematic analogy provides a context for quickly absorbing some of the important differences between legal and ethical standards as applied to psychological interventions with children and families. These differences chiefly include the origins, purposes, and manner of enforcement of the standards. Before addressing these in detail, the reader without much legal background will need some contextual information.
Legal standards addressed to family issues often originate in common law, which has its roots in legal traditions inherited from America’s early European ancestry. Common law generally refers to legal principles which derive from sources other than formal legislative enactment. The second cluster of legal standards most commonly encountered by mental health professionals are statutory law and case law. Statutes are those laws enacted by legislative bodies at the local, state, or federal level, and case law refers to precedent-setting decisions handed down by courts.
Finally, one occasionally encounters administrative laws which bear on family functioning. These are often termed regulations and originate in the executive branch of government, as opposed to legislative or judicial branches, and usually deal with policy implementation (e. g. , rules governing the treatment of participants in research using federal funds or rules governing administration of the social security benefits system). Federal regulations are published in the Federal Register, while state regulations are usually available through the various Secretary of State offices.
Ethical codes generally refer to basic philosophical notions and professional norms about the morality of human conduct (Weithorn & McCabe, 1987). Such codes are often promulgated by professional organizations (e. g. , the American Psychological Association, American Psychiatric Association, and the Society for Research in Child Development). In addition, groups charged with policy-making (e. g. , the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research) also occasionally undertake explication of ethical guidelines.
Beauchamp and Childress (1983) have underscored key principles which guide codes of ethics. These include: autonomy (i. e. , respect for the right of self-determination), beneficence (i. e. , the obligation of members of the profession to help others), confidentiality (i. e. , preventing disclosure of information received in the context of a professional relationship), fidelity (i. e. , keeping one’s promises), justice (i. e. , offering fair and equal treatment to all), nonmaleficience (i. e. , the obligation to “do no harm”), privacy (i. e. , respecting people’s personal decisions about when and what information to provide about themselves), and veracity (i. e. , truthfulness). Please cite as: Koocher, G. P. & Keith-Spiegel, P. C. (1990).
Children, Ethics, and the Law: Professional Issues and Cases. Lincoln, Nebraska: University of Nebraska Press. © Gerald P. Koocher and Patricia Keith-Spiegel, 1990, all rights reserved Chapter 1 2 The value of professional associations’ ethics codes as applied to everyday practice is limited. Except for the code of the Society for Research in Child Development (SRCD), which is focused on children, professional association ethics codes say little or nothing about kids.
In addition, the SRCD ethics code is now so outdated that parts of it actually conflict with some federal regulations on the protection of children in research projects. Many groups with ethics codes, including SRCD, have no monitoring or enforcement capability (e. g. , ethics committees with investigatory and disciplinary authority). In these instances, the ethics codes are essentially educational and consciousness-raising documents for the members of the organization or statements for public relations purposes. Thus, some groups with ethics codes ignore the special interests and needs of children while others are totally toothless.
Most professional groups with a focus on children have no written ethics code at all. Although morals and laws often have the same goals and suggest similar underlying social values, the vigor with which they are enforced and the adequacy of the protection they afford society is highly variable. Despite its failings, government through the legal system has a complex array of personnel and procedures available to enforce laws (e. g. , Rambo, the well-armed enforcer) by comparison with the more limited and relatively toothless resources available to those who attempt to enforce professional ethical codes (e.g. , Bambi, being guided chiefly by conscience or fear of embarrassment).
Although ethical codes may well be enforced on members of professional organizations, the ultimate sanction available is generally limited to expulsion from the group. This is not an entirely benign sanction, since it may include dissemination of the “guilty” finding to licensing boards and members of professional associations (Keith-Spiegel & Koocher, 1985). In addition, such findings can lead to termination of professional liability (i. e. , malpractice) insurance coverage.
Clouser (1973) noted that, despite the apparent overlap, morality is external to law, and laws frequently deal with matters that are not moral concerns at all. Likewise, many matters of morality or ethics cannot be sanctioned by law because of inconvenience or the impossibility of enforcement. Frequently, a lack of congruence exists between what is legal and what is considered ethical in terms of professional standards. For example, a psychologist who is convicted of shoplifting has broken the law, but may still be an ethical practitioner of her/his profession.
Likewise, a practitioner may behave in ways which are unethical or potentially harmful to clients, while at the same time violating no actual statutes. The following case is illustrative. Case 1-1: It is not unusual for Brian Brash, Ph. D. to invite discussions of specific problems on his radio call-in show, “The Children’s Hour with Dr. Brian Brash, Child Psychologist. ” A parent called in and described her eight-year-old child’s behavior, including: temper tantrums, argumentativeness, constant challenges to parental authority, and refusal to respond to requests that he clean up his room.
In Please cite as: Koocher, G. P. & Keith-Spiegel, P. C. (1990). Children, Ethics, and the Law: Professional Issues and Cases. Lincoln, Nebraska: University of Nebraska Press. © Gerald P. Koocher and Patricia Keith-Spiegel, 1990, all rights reserved Chapter 1 3 response Dr. Brash stated that a diagnosis of “oppositional disorder of childhood” seemed likely. In this case no law is violated, although the APA ethics code (1981, Principle 4k) admonishes psychologists to refrain from offering a diagnosis in a context other than a traditional professional relationship.
When working with children in clinical, institutional, or research, settings the distinctions between legal and ethical obligations become even more complex. Society’s laws are generally framed with adults in mind. As such, the law often treats children as “exceptions to the rule,” which may be either beneficial or insidious depending on the precise context. The purpose of this volume is to highlight and discuss the special ethical and legal considerations required when studying children and their families or when delivering psychological services to them.
To use the analogy with which we began this chapter, this volume is generally focused on educating Bambi rather than calling in Rambo. Legal Background Historical Considerations Children have long been treated by the courts as valuable property of their parents. In many societies, children have represented a means of establishing a labor force or to provide parental support during old age. In our own legal system, parents have been held to possess a “right of control” over their children (Meyer v. Nebraska, 1923; Pierce v.Society of Sisters, 1925)1.
Although parents’ rights of control over their children are limited by a prohibition against making “martyrs of their children,” (Prince v. Massachusetts, 1944, p. 170). This restriction was advanced not because of an enlightened view of children’s rights, but rather as an assertion of society’s interest in the socialization of children. It was actually not clear until the mid 1960s that children were deemed “persons” within the meaning of the Fourteenth Amendment which applies the Bill of Rights to all of the states.
Under common law, children up to the age of seven were considered doli incapax (i. e. , the defense of infancy) and therefore could not be held responsible for their actions. Older children under the age of majority were also considered incompetent unless the state could prove them doli capax (Melton, 1983a, 1983b). Although one can easily question the validity of this doctrine and the age levels used, such questions were irrelevant in this capacity until the Supreme Court’s decision in the case In re Gault (1967).
Prior to that decision juvenile courts were deemed to be acting in the best interests of the children before them under the doctrine of parens patriae (i. e. , the principle of the state performing parental functions for those deemed 1 Brief summaries of these and other important cases cited in this volume appear in the case glossary. Please cite as: Koocher, G. P. & Keith-Spiegel, P. C. (1990). Children, Ethics, and the Law: Professional Issues and Cases. Lincoln, Nebraska: University of Nebraska Press. © Gerald P. Koocher and Patricia Keith-Spiegel, 1990, all rights reserved.
Chapter 1 4 incompetent under law). In the Gault decision, the Supreme Court concluded that, “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone” (p. 28). This decision and others that followed combined with the increasing recognition of the prevalence of social problems such as child neglect and abuse, runaway youth, and changing child custody practices contribute to an increasing involvement of children in the legal system. Similarly, the involvement and roles of mental health professionals who work with children have changed.
We are increasingly called upon to advise or testify on such matters, and in so doing expose ourselves to new duties and responsibilities with special obligations for which we may not be fully prepared. Children’s Ability to Make Competent Decisions Much of this volume will revolve around questions of decision-making by and for children. The ability of children to make well-informed decisions about their lives and their exercise of that ability, directly or through proxies, is a core issue which cuts across many ethical problems.
The law, society, and many mental health professionals generally presume that children are not able to make major life decisions on their own. This presumption is often correct, and the rules that exist to deny children independent decision-making authority generally serve to protect them in the long run. At the same time, the relative dependency, vulnerability, and immaturity of children often interact with complex family roles to create complicated conflicts of interest.
By the nature of their work, human service professionals frequently encounter such conflicts in work with families, and ethical dilemmas often result. Assessment of specific competency (in the case of children) or incompetency (in the case of adults) revolves around four basic elements (Leikin, 1983; Weithorn, 1983a; Weithorn & Campbell, 1982). These include: 1. the person’s ability to understand information that is offered about the nature and potential consequences of the decision to be made; 2. the ability to manifest a decision;
3.the manner in which the decision is made; and 4. the nature of the resulting decision. These elements involve psychological aspects of comprehension, assertiveness and autonomy, rational reasoning, anticipation of future events, and judgments in the face of uncertainty or contingencies. In the following pages, relevant developmental trends will be discussed in relationship to these basic elements of competency. The points discussed here represent an overview of the various approaches to determining competence.
The matter of whether any single circumstance represents a valid exercise of competence is obviously linked closely to context and subjective interpretation. Please cite as: Koocher, G. P. & Keith-Spiegel, P. C. (1990). Children, Ethics, and the Law: Professional Issues and Cases. Lincoln, Nebraska: University of Nebraska Press. © Gerald P. Koocher and Patricia Keith-Spiegel, 1990, all rights reserved Chapter 1 5 There are five key elements in fully informed decision-making.
These include: information, understanding, competency, voluntariness, and decision-making ability (i.e. , reasoning). In this context information refers to access to all data which might reasonably be expected to influence a person’s willingness to participate. Information includes only what is offered or made available to the person. Competency includes the capacity to understand, the ability to weigh potential outcomes, and also the foresight to anticipate the future consequences of the decision. Voluntariness is the freedom to choose to participate or to refuse.
Decisionmaking ability refers to the ability to render a reasoned choice and express it clearly (Lidz,Meisel, Zerubavel, Carter, Sestak, & Roth, 1984). Although the concepts of competency and informed consent are different, it is clear that there are many overlapping elements. Competency is a prerequisite for informed consent. An offer to provide a person with informed consent is simply not meaningful unless the individual in question is fully competent to make use of it. Across the developmental trajectory between infancy and adulthood, there are many aspects of human development which act to inhibit or enhance competency and the ability to give consent. How are Children Special in This Regard?
Socialization It is no secret that we begin life as egocentric beings, largely unaware of our own capabilities and without verbally based interpersonal relationships. We progress through developmental stages which involve a focus on interaction in the family, peer group, and ultimately in society as a whole. Along the way we are “socialized” or taught about various interpersonal and societal roles by our parents and social institutions (chiefly our schools). As children, we are taught to do what older and bigger people (i. e. , authority figures) tell us.
There is a substantial body of data to suggest that even after children become capable of understanding that they have certain rights or societal entitlements, their exercise or assertions of those rights is often a function of their social ecology (Melton, Koocher, & Saks, 1983). Many children literally regard their rights as those entitlements that adults permit them to exercise (Melton, 1980, 1983c). Although a parent may say to a child, “Please pick up your toys,” children as young as three are well aware that adverse consequences will follow a failure to respond.
Adults’ interactions with children are often framed as requests, yet children are seldom fooled into thinking that they have a real option to decline. The “terrible twos” and “rebellious adolescent years” are well known societal concepts which present the adult perspective that it is difficult to deal with children who challenge or question authority. The point to be made here is that the process of socialization presents considerable pressure for children to conform or acquiesce to adults’ wishes.
As a result of these pressures, it is quite likely that offers to exercise various rights will not be recognized or acted Please cite as: Koocher, G. P. & Keith-Spiegel, P. C. (1990). Children, Ethics, and the Law: Professional Issues and Cases. Lincoln, Nebraska: University of Nebraska Press. © Gerald P. Koocher and Patricia Keith-Spiegel, 1990, all rights reserved Chapter 1 6 on by many children. Likewise, oppositional responses may sometimes occur more as a function of developmental stage than reasoned choice.
Time Perspective “Do you want a little candy bar today, or a big one next week? ” To the young child for whom next week may seem a decade away, immediate gratification is the obvious choice. Psychologists have conducted a considerable amount of research investigating children’s time perspective including a now classic body of social learning theory (Mischel, 1971). The ability to go beyond the present and conceptualize the future, including hypothetical or potential outcomes, is closely linked to stages of cognitive development.
We must be mindful of this when asking children to participate in decisions or to give consent involving long-term consequences of future outcomes. Time perspective becomes critically important whenever a decision involves being able to weigh its short- versus long-term consequences. It is also an important consideration when developmental level predisposes a child to choose immediate gratification while ignoring or failing to weigh her longer-term best interests.
The impact of developmental level has been especially well documented as an issue in health-related decision making, both with respect to pregnancy decisions (C.C. Lewis, 1981) and more general health attitudes (Roberts, Maddux, & Wright, 1984; Jessor, 1984).
The classic paradigm, of course, is the adult patient facing major surgery who says, “Well doc, what are the odds? ” The ability to weigh probabilities and to make some kind of long-term cost-benefit analysis is crucial to an informed decision. Concept Manipulation The ability to manipulate concepts using a developmental model of consent has been well described in a previous volume (Melton, Koocher,& Saks, 1983), as well as in many subsequent studies (e.g. , Belter & Grisso, 1984).
Considering the Piagetian model in simplistic form, for example, one can examine the basic reasoning shifts which occur between pre-operational, concrete-operational, and formal-operational stages (Phillips,1975). In the pre-operational stage, children are limited to their own experiences as a primary data base for decision-making. Fantasy and magical thinking are also very powerful at this stage and may carry equal weight with more valid or reality-based data in a child’s reasoning.
While such children are very interested in their environment and interpersonal relations, their perspective is self-centered. Their understanding of other’s behavior and their own experiences are interpreted chiefly in terms of how these happenings affect them personally. When they ask questions or observe events happening to others, such children interpret the events chiefly via projection and identification. During the concrete-operational stage the child for the first time becomes capable of truly taking the perspective of another person and using that data in decision-making.
While Please cite as: Koocher, G. P. & Keith-Spiegel, P. C. (1990). Children, Ethics, and the Law: Professional Issues and Cases. Lincoln, Nebraska: University of Nebraska Press. © Gerald P. Koocher and Patricia Keith-Spiegel, 1990, all rights reserved Chapter 1 7 observational learning and asking questions are obvious in much younger children, the concrete-operational child is able to integrate and reason with these data in a more logical and effective manner than was possible at an earlier developmental level.
In addition, this is the stage at which children first become able to explore their motivation from the standpoint of another person (Phillips,1975). With the arrival of formal-operations the child becomes able to use hypothetical reasoning. The way things are now is recognized as a subset of the way things might be for the first time. Cause and effect reasoning becomes generalized in a manner which permits the child to extrapolate and theorize about future events and outcomes.
Likewise the ability to understand contingencies and consider probabilities (e.g. , “There is a fifty percent chance that you will get well without treatment… “) will generally require the cognitive talents which do not arrive prior to formal-operational thought. Such thinking is obviously critical if a child is to make a decision regarding his or her long-term best interests. Consent, Permission, and Assent Among those writing on the interaction of developmental stages with competence to consent, a clear distinction is often made among the terms “consent,” “permission,” and “assent.
” To give consent, a person should be able to understand the facts and consequences relative to a decision and manifest that decision voluntarily. We usually like to see the adjective “informed” precede consent, implying that all of the data needed to reach a reasoned decision have been offered in a manner that can and has been understood. Often the person must meet a legal age requirement, typically age 18, in order for the decision to be considered valid or binding More and more often, consent is being defined as a decision that one can make only for oneself.
Thus, the term “proxy consent” is decreasingly used in favor of the term “permission. ” Parents are usually those from whom permission must be sought as both a legal and ethical requirement prior to intervening in the lives of their minor children. Assent, a relatively new concept in this context, recognizes that minors may not, as a function of their developmental level, be capable of giving fully reasoned consent but may still be capable of reaching and expressing a preference.
Assent recognizes the involvement of the child in the decision-making process, while also indicating that the child’s level of participation is less than fully competent. Granting assent power is essentially the same as providing a veto power. What can be done to respect the rights of a child or other “incompetent” when the consequences of a poorly exercised veto could be disastrous to the individual in question? This is often the case when some high-risk medical procedure offers the only hope of long term survival or when the person in question is pre-verbal, mute on the matter, or comatose.
In such situations, a substitute or proxy is needed. Please cite as: Koocher, G. P. & Keith-Spiegel, P. C. (1990). Children, Ethics, and the Law: Professional Issues and Cases. Lincoln, Nebraska: University of Nebraska Press. © Gerald P. Koocher and Patricia Keith-Spiegel, 1990, all rights reserved Chapter 1 8 The degree to which children ought to be permitted to make binding decisions on matters involving their own welfare is a matter of much controversy (Wadlington, 1983).
The point of this volume is not to argue a position so much as to clarify the issues with respect to the psychological capacities of children to make such decisions and the ethical obligations of professionals who work with them. Although the law has seldom been guided by psychological principles, a growing body of psychological studies are shedding new light on how children’s decision-making capacities, as a function of development, interact with legal concepts. Mental health professionals are increasingly being asked to come into court as experts with respect to children’s needs and capacities.
With this expanded visibility, comes added risk. Those who do come forward as experts are more likely to be held accountable for their professional behavior. Unfortunately, ethical guidelines which apply particularly to work with children and families are all too rare. Use of the term “competence” as a legal concept in this chapter is no accident. In many ways the concept of competence provides a paradigm for the manner in which the legal system deals with children.
Adults are presumed competent, and children (i.e. , minors) are presumed incompetent in virtually all legal contexts. Although children may be “heard” on behalf of themselves or may be treated as adults in a variety of special circumstances, these situations are generally preceded by a qualifying process. Some examples of statutory and common law exemptions are discussed below. At times the basic elements of the process may be quite specific under statute, as in the matter of whether or not a juvenile defendant is to be tried as an adult.
On most occasions, however, the process by which a minor is deemed competent for any given purpose is open to determination by the broadest judgment of the court. The process of determination of competence and the reasoning applied vary widely as a function of both the case context and the willingness of the court to consider psychological input. In at least one context (i. e, decisions about admitting a minor to a psychiatric facility for inpatient treatment), the Supreme Court gave approval to considering a mental health professional as an administ.
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