Case Study: Legal/Ethical issues

For this week’s content module read the Case Study on pages 142 of the text, then answer the following questions:

1. What key legal issues are present in this scenario? What key ethical issues are present?

2. What options does Consuela have in this situation? What should she do?

Text:

Generalist Case Management, 5e (pinata.cloud)

Generalist Case Management
A Method of Human Service Delivery 5th Edition

Marianne R. Woodside
Tricia McClam

CHAPTER 4
Ethical and Legal Perspectives

Introduction
Sometimes client confidentiality can be maintained. But there are other times that the case manager must break confidentiality, especially when suspicion of harm to self or other is involved.
Working with families is often integrated into the case management process. Sometimes families can enrich and support the helping process; sometimes they can cause difficulties.
In many situations, finding the appropriate resolution is difficult and challenging. Case managers use codes of ethics, the law, and agency policies and procedures to guide their practice.

Confidentiality, Slide 1
The obligation of confidentiality is fundamental to developing a relationship between the helper and the client.
Confidentiality: information disclosed during the helping process is kept in confidence.
Confidentiality helps the client feel free to share concerns and issues.
Trust between the helper and the client is a prerequisite to the success of their relationship.
There are exceptions to case managers maintaining confidentiality including entering into a electronic system, talking to colleagues during consultation, or working under supervision.

Confidentiality, Slide 2
Five Standards for Confidentiality

1) The case manager keeps client information confidential except when the client intends to harm self or others or if the client has been neglected or abused or reports neglect or abuse of others.
2) When information needs to be shared with colleagues, the client will be informed of: who will be told, the reason for the disclosure, and what information will be disclosed.
3) If the client consents, some information will be disclosed to family and friends.
4) The case manager must testify in court regarding information about the client, unless protected by the state.
5) The case manager must ask for the client’s permission to release information.

Confidentiality, Slide 3
The Health Insurance Portability and Accountability Act of 1996 (HIPPA) protects the confidentiality of client health records by allowing patients access to their medical records, requiring health professionals to explain how they will use patient information on health records, limiting the personal information a health professional may share with others, and allowing patients to request confidential communications.
The Family Educational Rights and Privacy Act (FERPA) protects the educational records of children. It allows parents and children to view their educational records, to request copies, and to amend these records. FERPA also requires that schools get permission before releasing students’ records with certain exceptions.
Having sensitive information about clients often causes dilemmas for case managers.

Confidentiality, Slide 4
The case manager should address certain matters before collecting any information, to anticipate any confidentiality problems:
What does the case manager need to know to do the job, and why?
What should become part of the permanent record?
What understanding should exist between case manager and client about why the information is being sought, how it will be used, and the client’s right to refuse to answer?
Under what circumstances should information be shared?
A good outline of information to be gathered keeps the case manager focused on appropriate and relevant areas to probe.

Confidentiality and Working with Minors
Though there are cases with legal exceptions, parents must provide consent for a minor’s treatment; minors provide assent.
In general, a parent’s consent to treatment secures the parent’s right to know about the treatment of the minor.
Confidentiality issues between parents and minors present an opportunity for the case manager to discuss confidentiality with both parties; this conversation should happen at the beginning of the case management process.
Legal and ethical guidelines for working with minors and maintaining confidentiality suggest that case managers consider the minor’s physical and developmental age, competency, and their best interests when making confidentiality decisions.

Confidentiality and Technology, Slide 1
As case managers increase their use of technology to communicate, store, and retrieve information and care for clients, considerable concern is developing about client confidentiality.
There are three areas of security and confidentiality to address: security of the data, use of email and social media, and securing the communication site (Remley, 2011). Security issues can be addressed through use of encryption programs, firewalls, and required authentication for remote access.
Several measures can be used to address security issues:
Use of encryption programs to scramble data and protect data being transmitted
Use of firewalls for data stored on the Internet
Required authentication for remote users

Confidentiality and Technology, Slide 2
Many clients are beginning to communicate with their case managers online and through social media sites. Many agencies developed or are developing a policy related to agency use of email or social media.
Guidelines for electronic work in a shared space include using a screen saver and password to control access to your digital files, securing the network, securely storing physical files when they’re not in use, being careful with documents while traveling, and refraining from working on sensitive materials in public.
Additional safeguards for a shared workspace include compiling a list of all technology being used, evaluating the risks of each to patient confidentiality, making changes in the procedures that contribute to the risk, and discussions with those with whom the space is shared.

Confidentiality and Interpreting
Another concern about confidentiality is working with a client who uses an interpreter.
Interpreters are guided by a code of ethics, and may be certified. The code of ethics requires interpreters to maintain confidentiality.
Case managers should expect interpreters to speak clearly, convey the tone and emotions of the speaker, remain impartial, and have no unnecessary discussions with participants.

Family Disagreements, Slide 1
Working with clients and their families is an important part of case management as families can often provide support to clients that will help them meet their goals.
End-of-life care is a difficult ethical area for the case manager. Family members may disagree over the care of an incompetent client.
Interdisciplinary teams need strategies for working with difficult families, especially when the client is incompetent.

Family Disagreements, Slide 2
In working with different populations, such as minors, those that are homeless, mentally ill, or have limited mental capacity, the case manager must maintain a delicate balance, advocating for the client, engaging the support of the family, and assessing what is in the client’s interest.
The mission and goals of the organization guide the case manager; ethical guidelines, ethical codes, state statutes or law also provide a foundation for decisions.
Multicultural issues may complicate work with families. Attitudes about health, illness, treatment, lifespan, and death and dying represent basic cultural orientations that must be considered.

Family Disagreements and
Working With Minors
Family disagreements may also arise when parents disagree about their child’s treatment goals, treatment itself, or the process of case management.
When parents disagree case managers should use the following guidelines: get everyone to agree on rules for positive communication, clarify that the purpose is to work for the client’s best interests, create a process to help communication, welcome all perspectives, recognize everyone’s emotions, and rationales, give the client a voice, consider each option, and work towards consensus.

Working with Potentially Violent
Clients, Slide 1
Cases of violence are increasingly common in the human service delivery system, especially since treatment occurs within community settings including neighborhoods.
Violence: physical assault, verbal assault, or the destruction of property.
Case managers have a responsibility – to themselves and everyone else involved – to look for violent tendencies in their clients, and warn team members about these tendencies.
Stresses are exacerbated by personal pressures and lack of skills for coping with difficulties.
Problems are compounded by a lack of social support, changing values, easy access to weapons, and a tendency in our culture to condone violence.

Working with Potentially Violent
Clients, Slide 2
Many service providers are not educated about this potential, and protocols for working with violent clients are seldom established.
The following steps can be used as guidelines to address the issue of violence:
Identify potentially violent clients and vulnerable situations.
Understand several triggers of violence such as lack of control.
Receive training to de-escalate a potentially violent situation.
Know how to write a report on violence in the workplace.
The agency needs policies and procedures that protect clients, employees, and family members from violent acts.

Duty to Warn, Slide 1
Duty to warn: arises when a helping professional must violate the confidentiality that has been promised a client in order to warn others that the client is a threat.
The Tarasoff court decisions of 1974 and 1976 established that mental health practitioners have a duty to warn not only anyone who works with the client and the police, but also the intended victim.
The law and professional codes of ethics provide guidance in this matter. However, state laws on confidentiality may conflict with duty to warn and codes of ethics do not always provide clear guidelines.
The case manager must consider the legal implications in case someone is hurt.

Duty to Warn, Slide 2
Because this issue is so complicated, the following recommendations guide aspects of informed consent:
Make informed consent, duty to warn, and confidentiality part of the introduction to services.
Be informed of agency policy and procedures.
Develop plans of action for harm to self or others and/or for abuse or neglect.
Obtain professional liability insurance.
Include the client in the duty to warn process.
Continue to learn more about the client.
Document in writing.

Working in the Managed Care Environment
Many case managers work with managed care organizations to determine the services for which their clients are eligible.
Case managers may encounter ethical dilemmas as they work with managed care including, providing the “best” services to clients and advocating for the client.
Case managers have a responsibility to work with these organizations if they are to serve their clients effectively. They can improve their work with these organizations if they do the following:
Understand that there are limits on the amounts and types of treatment available for clients.
Work with the system.
Help clients understand about managed care.
Keep detailed records and reports of client progress.
Write clear, well-documented treatment plans.

Autonomy, Slide 1
Client autonomy is a fundamental value in the case management process; clients become able to manage themselves.
Clients are to be involved in the process as much as possible, and treatment plans must support client choice and promote self-sufficiency.
Autonomy: increasing the range of choices a client can make.
There are several instances in which client autonomy is not an absolute priority: when the client preferences interfere with other clients or the helping professionals, when the client is not competent to make decisions, and when clients need protection from their own decisions.

Autonomy, Slide 2
Asking the following questions can help the case manager and guard the client’s autonomy:
What are the facts of the case?
Can you understand the history of the case and the current situation, and view it from the client’s perspective?
Is the client competent? What does the client want?
What are the barriers to what the client wishes? Can these obstacles be overcome?
What are the risks involved in allowing client autonomy?
What is the advice of the treatment team?
How can the case manager guard the values of the client?

Client Preferences: One Component
of Autonomy
In every part of the plan, client preferences receive priority, and everyone involved must respect those preferences.
The case manager should consider the following guidelines when faced with issues involving client preferences:
Ask what the client needs and why the client has a particular need.
Can each of the needs be addressed?
How are client preferences met?
When is a preference not legitimate?

Autonomy and End-of-Life Issues
Case managers can be involved in end-of-life care for a competent client. To give clients more autonomy over end-of-life decisions case managers can help clients with writing down their wishes.
Advance directive: “a general term that refers to your oral and written instructions about your future medical care, in the event that you become unable to speak for yourself” (Partnership for Caring, 2005).
Living will: defines what type of medical treatment the client wants at the end of life and what medical interventions the client does not want used.
Medical power of attorney: a document that records the name of the individual designated to decide about medical care if the individual is unable to do so.
Helping clients think about and make their end-of-life decisions before their final days supports client autonomy and helps avoid ethical dilemmas that do occur when these decisions have not previously been made.

Breaking the Rules
One of the most difficult dilemmas that a case manager can face is whether to comply with laws, regulations, and rules of practice when these do not appear to meet client needs.
One way to approach this issue is to determine if the welfare of the client is more important than following the rules.
Guidelines to use when considering these issues (Kane, 1993: Kane & Kane, 2000):
What is the purpose of the rule, and how does it help the client?
Who made the rule? What are the consequences of violating it?
What does the client lose and what does the client gain if the rule is followed?
Is this a life-or-death situation for the client?
Ask for help.
Appeal for an exception.

Making Sense of Ethical Issues, Slide 1
Mullahy (2014), in her book The Case Manager’s Handbook (5th edition), provides some wisdom about working through ethical challenges in her chapter related to ethical issues and the case manager.
She offers advice for thinking about ethical issues suggested by John Banja, who is a Professor and Medical Ethicist at Emory University in Atlanta. Dr. Banja presents three steps for his No Brainer Test of Ethical Behavior (Mullahy, 2014, p. 354). One way to approach this issue is to determine if the welfare of the client is more important than following the rules.

Making Sense of Ethical Issues, Slide 2
Guidelines to use when considering these issues (Kane, 1993: Kane & Kane, 2000):
Is it legal?
Would my mother approve?
What if my behavior was described on the front page of tomorrow’s New York Times?

Making Sense of Ethical Issues, Slide 3
Mullahy (2014) also suggested practical decision-making guidelines proposed by Frank Lewis (2012), the National Director of Clinical Outcome Services of Neuroestortive Clinic providing care for individuals with brain injury.
Lewis’ guidelines are summarized here:
Identify that ethical conflict exists. Write about the nature of the conflict. You may understand the conflict if you summarize it in writing.
Bring together the facts from the various points of view represented. The facts may appear differently for each of those involved.
Be clear with each individual involved regarding all of the facts you gathered. Each individual needs to have a clear picture of the varying perspectives.
Ask others to help you generate solutions to the dilemma(s) identified.
As the discussion of the solutions unfolds, be sure to involve others in asking questions and generating answers to the questions.
Choose a solution and put it into effect.
Evaluate the implementation of the solution.

References
Kane, R. A. (1993). Uses and abuses of confidentiality. In R. A. Kane & A. L. Caplan (Eds.), Ethical conflicts in the management of home care: The case manager’s dilemma (pp. 147–158). New York: Springer.
Kane & Kane (2003).
Partnership for Caring. (2005). Advance directives: Living wills, durable power of attorney for health care. Retrieved February 13, 2005, from
this link.
Remley, T. P. (2011). Ethics and the helping professions in a technological world. Unpublished paper presented in Knoxville, TN on November 4, 2011).

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