Decision Making Model

In the next part of the course, the following Model for an Ethical Decision Making Process will be used to identify the ethical issues and resolve the ethical dilemmas in several different case scenarios. Refer back to the appropriate code of ethics in your assessment of the ethical issue.

Model for an Ethical Decision Making Process

1. Identify the ethical dilemma.

2. Determine the facts.

3. What are the ethical standards (codes), laws or cases that apply?
- Is the Code clear?
- Are there conflicts within the Code?
- If the Code is clear, the behavior is wrong

4. What other values or ethical perspectives should be considered (personal, societal, professional, client’s or agency)?

5. Where will the decision be made and who should be involved in the decision making?

6. What are the organizational and/or professional barriers that may interfere with the social worker’s participation in the decision making process?

7. Identify goal/objective to resolving dilemma identified in Step 1.

8. Identify possible strategy(s) to achieve Step 7. Which one is the most efficient and effective? What are the potential consequences both short and long term?

9. Consult with colleagues and/or supervisor regarding chosen strategy?

10. Make decision and document process.

11. Indicate the plans for monitoring and evaluating implementation of decision. Document.

SCENARIO

Consent from Divorced Parents for Treatment of Minor Children

A licensed mental health clinician works for a large counseling program. He began treatment of two minor children at the request of and upon the signed authorization of the mother. The clinician knew that the children’s’ parents were divorced. The clinician planned to contact the father later for informational purposes. The clinician was aware that the mother shared custody of the children with her husband but did not inquire further as to the formal custodial arrangement as set forth in the divorce decree.

A week after the initial assessments the father called the clinician. He expressed his disapproval of the clinician's provision of services to his children without his consent and wanted access to their records. The divorce decree gave both parents joint decision making authority regarding mental health care of the children. After consulting with colleagues, the clinician terminated the client relationship after the father's call.

What could be done to prevent this type of dilemma in the future?

An Ethical Decision Making Process

1. Identify the ethical dilemma

1. When working with families of divorced parents, what are appropriate guidelines for disclosure of confidential information with both parents, especially when the parents are not in agreement about who should have what information?

2. When someone is working with adolescents, what are the legal/ethical obligations about disclosure of information to parents, in light of the clinical relationship with the adolescent?

2. Determine the facts

- Both parents do not consent to treatment
- The children are ages 15 and 17
- The divorce decree provides for joint decision-making but is not clear about whether both parents must consent to treatment or if either parent can consent to treatment
- The agency has policies regarding obtaining appropriate consent and they include obtaining copies of divorce decrees
- It appears that the social worker did not follow policies and obtain a copy of the divorce decree

3. What are the ethical standards (codes) laws or cases that apply?

NASW Standards for Working with Adolescents

Standard 9 – Social workers shall maintain confidentiality in their relationship with youths and of the information obtained within that relationship.

NASW Interpretation – Respect for the client as a person and for the client’s right to privacy underlies the social worker-client relationship. Although assurance of confidentiality enhances the relationship and the willingness of the youth to develop and adhere to a case plan, the youth should be advised that there are circumstances in which confidentiality cannot be maintained.

Certain programs require that parents or guardians be notified that the youth is residing in a short-term residential facility. Suspicion of child abuse or neglect requires that appropriate authorities be notified. Social workers must also disclose information necessary to avert danger to the youth or to others. In all such situations, the social worker shall advise the youth of the exceptions to confidentiality and privilege, shall be prepared to share with the youth information that is being reported, and shall handle the feelings evoked.

Except for federal, state or local legal and other overriding requirements, the social worker will share information only with the informed and signed consent of the youth, the family or both.


Laws Regarding Confidentiality of Minor’s Health Information*

State laws regarding confidentiality and a minor’s ability to consent to treatment are very complicated and vary considerably from state to state. Clinicians should be aware of the laws in their state and any relevant cases interpreting those laws.

Typically, if a parent consents to treatment than the parent also has the authority to decide when information may be disclosed, even if the minor objects. The minor may not even know when or what information has been disclosed.

While it may be legal to release information with only the parent’s consent, the implications for not informing or including a minor in that decision, particularly more mature minors, may negatively impact the professional relationship. Once a minor reaches the age of 18, the minor alone can consent to treatment and controls access to health care information unless the minor has signed releases authorizing a parent’s access or there has been a court proceeding to determine that the minor is incapacitated and requires a guardian.

In situations where your state law allows a minor to consent to treatment, they are entitled to the same confidentiality protections as adults. States may have statutes that define when confidentiality may be breached, such as in the event of a mandatory reporting requirement for child abuse or neglect or for a mandatory report for risk of harm to a third person.

State laws may also allow a provider to notify the parent or guardian who has sought treatment if, in the judgment of the provider, failure to inform the parent or guardian would seriously jeopardize the health of the minor or would seriously limit the providers’ ability to provide treatment.

Other legal issues to take into consideration in this scenario:

- Should consent for counseling services be treated differently than consent for health services? Medical practitioners are not expected to get consent from both parents before providing treatment.

- When the NASW Code of Ethics refers to “third party” should that be interpreted as requiring the consent of more than one “third party” when there is no indication that this is the intent of the code?

*This section is only intended to raise legal issues that may be pertinent and it is not intended to provide legal advice or to speak comprehensively about the laws in all states, but to only provide examples of the aspects of state laws that may apply to this type of scenario.

4. What other values or ethical perspectives should be considered (personal, societal, client’s, agency)?

In deciding how to resolve an ethical dilemma it is important to be aware and take into consideration all relevant perspectives. In this scenario perspectives that should be considered or that will influence the outcome include:

- your own values and beliefs – What are your own values and beliefs about divorce, joint custody your agencies policies or this particular couple and their children? Would you think differently of them if the woman was a victim of abuse and you disagreed with the court order establishing joint custody?

- the minor children – What will be the impact on them of terminating services? Are they being used as pawns in the divorce dispute between the parents?

- the mother – How does this action impact her ability to provide appropriate care for her children? Has she been a victim of abuse? Is the divorce decree clear about the meaning of joint decisionmaking authority – does it require both parents to consent or does it allow either parent to consent to treatment?

- the father – How does this action impact his ability to be involved in important decisions regarding his children? Is the divorce decree clear about the meaning of joint decision making authority – does it require both parents to consent or does it allow either parent to consent to treatment?

- the counseling program – How does this action impact the agency’s ability to serve these children or other minors with divorced parents or even married parents who disagree about services? Does the agency have policies and if so are they clear about the appropriate procedures that counselors must follow to get informed consent? Are staff appropriately trained regarding these policies and is there appropriate supervision around this issue?

- NASW, AAMFT, LPCA state chapter – Are there implications beyond this one case? Does this scenario represent an issue for other clinicians across the state? Should there be training provided in this area? Should advocacy be done with the courts to ensure that divorce decrees are clear regarding joint custody agreements and who can consent to mental health treatment for minor children?

- State Licensing Boards – Are clinicians providing treatment to minor children of divorced parents obtaining the appropriate consent for treatment and are they in compliance with the NASW, AAMFT, or ACA Code of Ethics? Should advocacy be done with the courts to ensure that divorce decrees are clear regarding joint custody agreements and who can consent to mental health treatment for minor children?

5. Who should be involved in the decision making?

In this scenario since the clinician has already terminated services to the minor children those involved in the decision making process do not need to include the parents or the children. The clinician, agency personnel who provide services to minors and their supervisors and those who are involved in setting policies and procedures should be involved in the decision making process. It may be appropriate to involve legal counsel for the agency and the NASW, AAMFT, or ACA state chapter or local branch if no clear policies exist within the agency or if the agency has difficulty in determining what the appropriate policies should be. If the agency has clear policies than it may only be necessary for the clinician, the supervisor and those determining training needs for the agency to be involved.

6. What are the organizational and/or professional barriers that may interfere with the clinician’s participation in the decision making process?

If agency policies need to be adopted or changed those decisions may happen at a board or other level to which the clinician does not have access. There may be resistance amongst staff to recognize need to change policy and practice and to take the steps necessary to assure there is appropriate informed consent. There may be competing interests for training time for staff that could be resolved at organization levels above the clinician. The clinician may not have access to discussions and decisions about positions on this issue that may happen within the professional association, legal community or licensing board.

7. Identify goal/object to resolving the dilemma identified in Step 1.

Adhere to appropriate guidelines for the disclosure of confidential information when those who are consenting to treatment are not in agreement concerning who should have access to what information.

Maintain a clinical relationship with an adolescent while meeting legal and ethical obligations to disclose information to parents.

8. Identify possible strategy(ies) to achieve step 7. Which one is the most efficient and effective? What are the potential consequences both short and long terms?

- Both parents do not consent to treatment
- The children are ages 15 and 17
- The divorce decree provides for joint decision-making but is not clear about whether both parents must consent to treatment or if either parent can consent to treatment
- The agency has policies regarding obtaining appropriate consent and they include obtaining copies of divorce decrees
- It appears that the social worker did not follow policies and obtain a copy of the divorce decree

Since the facts of this case state that the clinician did not follow agency policies, strategies to address the ethical issue might focus on helping him and all staff to better adhere to those policies. This can be done through a review of the policies, further consultation and training and ongoing supervision to reinforce those polices and the need to adhere to them and the NASW, ACA, or AAMFT Code of Ethics.

The facts of the case also suggest that even if the clinician had obtained a copy of the divorce decree, the authority to make decisions regarding mental health treatment may still not be clear. It therefore may be appropriate to review agency policies so that there is clear direction to staff about what is necessary for a valid informed consent.

These policies might include the following:

- Procedures that require clinicians to ask specific questions about the decision making authority of the divorced parent who is signing off on the informed consent.
- In addition to requiring a copy of the divorce decree, make sure that all clinicians read and understand its provisions and that there is clear guidance about consent to treatment.
- Consent forms should include language specific for divorced parents that includes a representation that the parent has authority to make decisions about counseling for their child. If a parent signs that consent form, and the agency and social worker rely on it in good faith, then the burden would fall on the parent if they misrepresented the facts.
- Assure that there is routine and adequate guidance and training for all staff regarding: requirements for consent to treatment, limitations on confidentiality and that all clients, including minor children are provided information about and understand the limitations of confidentiality and who else may access their records and under what conditions
- If there is disagreement about consent to treatment, treatment should not be provided until parents go back to court to get a determination from a judge about how to resolve the conflict and who can consent to treatment and determine who has access to the minor’s records.
- Consider adopting a policy that would require that parents with joint legal custody and married couples who consent to treatment and also must both consent to the termination of treatment.

9. Consult with colleagues and/or supervisor regarding chosen strategy.

In this situation the clinician and supervisor should discuss training and ongoing consultation and supervision needs. Additionally, they should speak with their colleagues about the need for training for other staff and the adequacy of agency policies in providing guidance to staff and clients, including both parents and minors.

It may also be appropriate to review other agency records or minor children with divorced parents with joint custody to ensure that there is adequate consent, and for those clients where adequate informed consent may not exist, new consent forms should be signed. The above strategies would be considered and reviewed by the appropriate personnel within the agency depending on the adequacy of the policies.

10. Make decision and document process.

- The clinician and supervisor will meet routinely to review the NASW, ACA, and/or AAMFT Code of Ethics and other resources regarding informed consent and confidentiality.
- The clinician and all agency staff will review their client files to ensure that there is adequate consent to treatment and that it is appropriately documented.
- The agency will review and revise its policies regarding consent to treatment and access to confidential information by divorced parents with joint custody of minor children to ensure that there is adequate direction provided to staff about informed consent and confidentiality for treatment for minor children by divorced parents or married parents who disagree about treatment.
- Training will be provided to staff working with minor children about informed consent and confidentiality.

11. Indicate the plans for monitoring and evaluating implementation of decision. Document.

- At least quarterly during the next year the clinician and his supervisor will review issues related to informed consent and confidentiality for minors of divorced parents or married parents who disagree about treatment. There will be documentation in the employee’s file.
- Files that have been reviewed for adequate informed consent will be documented as to the date of the review, who reviewed the file, whether or not it met agency standards for appropriate informed consent, and if not, the date a new consent was requested, the appropriate consent form and supporting documentation such as divorce decree.
- Employee trainings regarding informed consent, confidentiality, agency policies and procedures, including newly passed policies, will be documented in the employee’s personnel file.
- Agency policies will be reviewed and new policies will include the dates they were passed and implemented.

After the strategies have been implemented, to evaluate their effectiveness, the clinician’s supervisor and other supervisory staff can randomly review files or check the files of new clients to ensure that there is adequate documentation regarding informed consent. If it appears that there is no change, agency staff may want to once again review policies and procedures to see if they address the issues and to review if staff are able to carry out the procedures. A greater degree of supervision, consultation and additional training may be necessary.
 

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