Continuing Education & Resources for Mental Health Professionals

Why “Who Is the Client?” Is The Wrong Ethical Question

Mary Alice Fisher, Ph.D.

Fisher, M.A. (2014).  Why “Who is the Client?” is the Wrong Ethical Question.  Journal of Applied School Psychology. 30 (3):183-208. DOI: 10.1080/15377903.2014.888531
To link to this article: http://dx.doi.org/10.1080/15377903.2014.888531

This HTML version may not exactly replicate the final version as published in that article.  It is not the copy of record.  

Abstract

The familiar question, “Who is the client?” elicits a singular answer.  This may be appropriate as a clinical question, and it is sometimes necessary as a legal question or reimbursement question; but on ethical questions, the NASP Ethics Code requires school psychologists to “think plural” instead.  For example, before providing services they must inform all involved parties about the nature of their role, where their loyalties lie, and when confidentiality will be limited. This is ethically important because it protects the informed-consent rights of everyone involved.   However, this way of beginning relationships requires forethought about how the case will be structured, awareness of potential multiple relationships and conflicts of interest, and knowledge of relevant laws and local policies. To facilitate the necessary preparation, the author recommends replacing the old question with a new plural one: “What are my ethical responsibilities to each of the parties in this case?” 

KEYWORDS: Ethics, Client Identification, Informed Consent, Who is the client?

Text of Article

“Who is the client?”   This question is often asked in an attempt to define roles and clarify responsibilities. The problem with the question is that it implies a singular answer.  This encourages school psychologists to name one person or entity as the client when, in fact, they have ethical responsibilities toward multiple parties in almost every case.

 Thinking in singular terms can place at risk the confidentiality rights and informed consent rights of all the parties in a consultation or intervention case.  It can lead school psychologists to create avoidable ethical dilemmas in cases involving separated families or unusual family structures; it can affect their ability to think clearly about their potentially conflicting loyalties to school, student, parent, and others; and it can make it difficult to comply with their ethical and professional standards in complex cases.  In short, “the notion of a singular client has gotten us into a real bind. It has become an impediment to thinking in a careful and nuanced manner about our ethical obligations, which even in our binary approach extend beyond ‘the’ client” (Behnke, 2007).

History

From the early days of the profession, those attempting to clarify the identity and purpose of school psychology have asked the “Who is the client?” question about the profession itself.  From the beginning, it was unclear whether the profession’s first obligation was “to the individual child or to the school as an organization” (Cutts, 1955, p. 85).  Two decades later, the answer was still unclear:

 We find ourselves caught between our sacred concern for the well-being of children and our duties to the organizations which employ us.  We can respond by construing our role narrowly to meet the internal pressure and demands of the schools, or broadly, to meet the external demands of the parents and the children we serve and the needs of the schools. (Kuriloff, 1975, p. 340)

The ethical dilemmas that arise in school settings often involve issues of confidentiality. In 1972, Trachtman wrote that “pupil records, confidentiality, privileged communication, and invasion of privacy have been issues of great concern to educators and, most particularly, to pupil personnel specialists during the decade of the sixties” (p. 37).  However, the determination of confidentiality rights was complicated by the fact that the “client” question remained unanswered. In a 1979 article, within a section entitled “Who Is Our Client?”, Trachtman responded to the singular question by taking the minority position that the parent was the client:

The school is not our client, but our paymaster; not even our employer, but our payroll other. Except for the fact that it is a legal entity recognized by the state, one can see the school as an abstraction, really representing the collective will of the parents.. . .The working premise offered here is that our employer is the parents, collectively, and our client, the individual parent. No ground rule works well all the time, and it is easy to find imperfections in this conceptualization, but it has worked well for the writer over the years. It appears to be somewhat of a minority position, since some psychologists define the school as their client and most, especially those of liberal persuasion, define the child as client. (Trachtman, 1979, p.383)   

At the 1980 Spring Hill Symposium on the Future of Psychology in the Schools, the issue remained unresolved:  Trachtman (1981) noted that “our profession has never satisfactorily defined its client” (p. 145) and Ysseldyke (1982) acknowledged that that there was still “the need to specify who the client is (student, parent, school)” (p. 551). Some argued that the child was the client (Hyman, 1983); some argued that the parents were the client, within which context the school psychologist could advocate for the child (Pantaleno, 1983; Trachtman, 1981).  Some refused to name a single client, emphasizing instead that school psychologists have obligations to everyone affected by their services (Kicklighter, 1983). Segal and Watzlawick (1986) suggested that in some cases, the most concerned person, or the person most affected by the problem, should be considered to be the client (or at least the most promising “customer” for a potential intervention) (p. 61).  Observing the lack of consensus on the “clientage issue,” Stewart suggested that “one reason the client question persists may be that to the current time virtually no empirical data have been gathered on factors relating to the determination of client” (Stewart, 1986, p. 296).  No such research appeared.

Through the next decade, the singular question continued to be used.  MacKay (1992) noted that ethical dilemmas arise when a psychologist must report to a variety of people, not all of whom share the same priorities: “Who is the client — the institution, the referring physician (also a staff member of the institution) or the person referred for help?”  (p. 237). In other words, school psychologists were still “wrestling with questions about who is the client: the student, the parents/guardians, or the school” (DeMers, 1994, p. 49). Crespi, writing in 1997 about issues in the supervision of school psychologists, similarly asked, “Who is the client?  The school, the child, or the parent?”

Further complicating the issue, White and Loos (1996) noted that there might also be one or more “hidden clients” who should be included in decision making and/or intervention planning.  These could include grandparents, step-parents, siblings, or other members of the child’s extended family system, as well as other professionals outside the school system who have relationships with the child or whose actions have an impact on the child.

The consultations provided by school psychologists . . . have the potential to affect many individuals.  Some of those individuals, such as the child, the teacher, the school administrator, or the parent, are easily identified.  Each in turn may be considered to be the client or, at least, a member of the client system. The web of individuals affected by a consultation may also include those whose identity is not obvious; these individuals have been previously labeled the hidden client. (White & Loos, 1996, p. 161)

In 2007, Fagan & Wise also used the concept of multiple clients and seemed to suggest that the term “client” could be either singular or plural, although they continued to use the singular term “client.” 

The question of who the school psychologist’s client is has no simple answer.  The term “client” may refer to the person in need of professional help, the person who employs a professional, the person paying for the help, the person who is under the protection of another, the person receiving services of a professional, or the person benefiting from such services.  Consequently, in the work of the school psychologist, the client may include one or more of the following:  child, parent or parents, teacher, principal, special education director, school superintendent, school board, or an agency administrator or governing board.  (pp. 98-99, emphasis added)

Thus, in spite of the continued use of the singular term, “client,” the emphasis on multiple responsibilities was growing.   This was reflected in the writings of Keith-Spiegel and Koocher across the decades.  In the 1985 first edition of their popular ethics text, Keith-Spiegel and Koocher noted that “psychologists must always be conscious of who the client is, and they should be prepared to define carefully client relationships concerning confidentiality, responsibility, and other critical ethical issues” (p. 320, emphasis added).  They also introduced the notion of “hierarchies” of clients, and emphasized that there can be “varying categories of clients and distinct client need hierarchies,” making it “critical that the psychologist carefully consider and conceptualize these situations, since the needs of the different components may often compete or be mutually exclusive” (p. 320).

 In their 1990 book, Children, Ethics, and the Law, Koocher and Keith-Spiegel used the singular term, “client,” but nevertheless suggested that psychologists in the schools had ethical and professional obligations to multiple parties:

“There are many . . . contexts within which the issue of who the client is becomes blurred. Schools, child care agencies, and extended family members are good examples. . . . The psychologist must be prepared to draw careful distinctions regarding which of the parties are due specific professional obligations” (p. 14, emphasis added).  

In the 1998 second edition of their ethics text, Koocher and Keith-Spiegel still used the singular question.  However, in the section entitled “Who is the Client?” (p. 340), they emphasized that “the psychologist’s obligations are to clarify the nature of the ethical duties due each party, to inform all concerned about the ethical constraints, if any, and to take any steps necessary to ensure appropriate respect for the client(s)” (p. 341).  Furthermore, one of the steps in their Ethical Decision-Making Process also advised psychologists to “evaluate the rights, responsibilities and vulnerability of all affected parties (including, if relevant, an institution and the general public)” (Koocher & Keith-Spiegel, 1998, p. 14).  

The current (2008) third edition of the Koocher and Keith-Spiegel ethics text still includes a section entitled “Who is the Client?” but the authors continue to emphasize the plural responsibilities to all parties involved in the case: “The profession has an obligation to clarify the ethical duties due each party, to inform all concerned about the ethical constraints, if any, and to take any steps necessary to ensure appropriate respect for the rights of the person at the bottom of the client hierarchy” (Koocher and Keith-Speigel, 2008, p. 487). 

 Legal & Reimbursement Issues

In addition to the confusion arising from asking “Who is the client?” as an ethical question, some suggest that it may require a singular answer when asked as a legal question:

In child therapy, it is the parent or legal guardian in most cases who is the client of the services, even though the child is the patient. This occurs because the law presumes the minor child is incompetent, which means that the child lacks the requisite legal capacity to consent to or refuse services, or to hold the right to confidentiality in regard to any information that he or she divulges during therapy. Rather, it is the parent or legal guardian who holds these rights. Thus, child therapy presents the opportunity for potentially serious conflicts of interest between the child, parent, and therapist.” (Sales, DeKraai, Hall, & Duvall, 2008, p. 519)

Ordinarily, these assumptions would apply under both state and federal law.  For example, under the federal HIPAA regulations, the general rule is that the minor’s parent or guardian exercises the minor’s privacy rights. In other words, the parent or guardian would receive the Notice of Privacy Practices required by HIPAA, give or deny consent for releasing the minor’s mental health information, and have the right to access and amend treatment records.

 However, this legal picture is complicated by the fact that some states grant to minors the legal right to obtain mental health services without parental knowledge or consent (e.g., see, for example, Virginia §54.1-2969 (E)).  When minors consent to treatment under such a state law, the HIPAA Privacy Rule generally grants to those self-referred minors the same privacy rights as to adults, thereby giving them the freedom under HIPAA to make their own decisions about confidentiality and disclosure (APA Practice Organization, Legal & Regulatory Affairs Staff, 2005).  In settings where HIPAA would apply, this would allow such minors to exercise their own privacy rights, including the right to obtain access to records and request amendment to records, to receive an accounting of all disclosures; and to control disclosure decisions. In school settings, however, policies vary regarding the extent to which these HIPAA implications might apply.     

 Finally, when client identification is raised as a reimbursement issue, a singular answer may be required.  For example, Medicare, Medicaid, and other third parties require that a single client be named when submitting a claim for reimbursement for psychological services.  However, the fact that school psychologists may need to supply a singular answer in legal or reimbursement situations should not change the fact that when considering the “client” question from an ethical perspective, their answer will ordinarily need to be plural.

 The NASP Ethics Code

Defining “Client” 

 In 1974, the first NASP Ethics Code did not use the term “client” at all. It centered on services to “the student” or “the child,” although it did indicate certain responsibilities to parents and others.  The next Ethics Code (1984) used the term “client” only within the term “student/client.” For example, school psychologists were required to “recognize the obligation to the student/client and respect the student/client’s right of choice to enter, or to participate, in services voluntarily” (Standard III, B, 3).  The 1997 Ethics Code used the term “client” alone, not within a combined term.  However, it did not clarify the term or define its meaning.   

The 2000 NASP Ethics Code reflected movement away from the singular perspective, but it did so in a way that was grammatically confusing: The Introduction used the singular term “the client,” but it provided a plural definition and referred to multiple clients: “Throughout the Principles for Professional Ethics, it is assumed that, depending on the role and setting of the school psychologist, the client could include children, parents, teachers and other school personnel, other professionals, trainees, or supervisees” (NASP 2000, p. 15). Elsewhere in that Ethics Code,  it was made explicit that although “school psychologists typically serve multiple clients including children, parents, and systems,” there could be conflicts of interest between these client groups, in which case the child was to be considered “the primary client” (Standard IV-A-1, emphasis added). In other words, “if conflicts of interest between clients are present, the school psychologist supports conclusions that are in the best interest of the child” (Standard IV-A-2, emphasis added). 

However, the 2000 Ethics Code did not resolve the issue. School psychologists were reporting that their most frequent ethical issue involved “balancing the interests of multiple parties” (Humphreys, 2000, p. 1), but the Ethics Code provided no guidance about how to resolve the conflicting interests in such cases. Meanwhile, in discussions of the delivery of psychological services and the future of school psychology, the question continued to be asked in the singular, but with growing emphasis on the complications of responsibilities to multiple parties. “With experience, the school psychologist comes to understand that almost all referrals of children involve several clients” (Fagan & Wise, 2007, p. 99). Clearly, the “single client” question was not helpful when preparing for or resolving conflicts among such multiple parties, or in clarifying and weighing their respective rights.

The 2010 NASP Ethics Code still uses the singular term but begins with a definition of “client” that explicitly designates it as a potentially plural term:

The client is the person or persons with whom the school psychologist establishes a professional relationship for the purpose of providing school psychological services. A school psychologist–client professional relationship is established by an informed agreement with client(s) about the school psychologist’s ethical and other duties to each party [Fisher, 2009]. While not clients per se, classrooms, schools, and school systems also may be recipients of school psychological services and often are parties with an interest in the actions of school psychologists. (Introduction)

 This definition reaffirms the possibility of multiple clients and adds the concept of other non-client parties.

Note, however, that the child is no longer described as the “primary client.”  Instead, the 2010 NASP Ethics Code places emphasis on the informed consent process as a way of explaining in advance, to everyone involved, where the psychologist’s loyalties lie. Within its new definition of “client,” the Ethics Code cites Fisher (2009), who noted possible problems arising from the fact that the “Who is the client” question elicits a singular answer, and who emphasized instead the psychologist’s ethical responsibilities to all involved parties.  However, nothing in Fisher’s recommendations preclude the possibility of giving the child the position of “primary” client in any given case.  Indeed, the 2010 Ethics Code itself does not prevent school psychologists from considering the child to be the primary client and placing the child’s interests first.  It simply no longer requires them to do that.   

Even in cases which begin as a referral for a formal evaluation of an individual child, the results of that evaluation may lead the school psychologist to decide that the necessary intervention should focus elsewhere.  In such cases, it can sometimes be clinically important that the child not be identified as the “primary” target of the planned intervention, and it would be ethically important that the school psychologist be free to make this clinical decision.  For example, such cases include those in which it would be clinically important for the intervention to focus on the behavior of others within the school system (e.g., the teacher or classroom aide), or on parties outside the school system who have an impact on the child (e.g., parents, siblings, and/or others in the family system). In planning such interventions, it would be ethically important that school psychologists clarify the nature of their relationship with each of the involved parties.  

Emphasizing Informed Consent

The current emphasis on informed consent in the 2010 NASP Ethics Code does not represent a new professional requirement.  From the beginning, it has been considered ethically essential that students, parents and others be informed about certain things before services are provided, and from its inception, the NASP Ethics Codes has reflected its ethical importance.  

The first NASP Ethics Code (1974) specified that “the school psychologist defines the direction and the nature of personal loyalties, objectives, and competencies, and advises and informs all persons concerned of these commitments” (Standard II, a, emphasis added).  Special attention was given to the student’s right to be fully informed: “Informing the student of all aspects of the potential professional relationship prior to continuing psychological services to the student is challenging but necessary” (Standard III).  This conversation was to include complete information about the psychologist’s role, as well as about confidentiality and its limits: 

The school psychologist explains to the student who the psychologist is, what the psychologist does, and why the student is being seen.  The explanation includes the uses to be made of information obtained, procedures for collecting the information, persons who will receive specific information, and any obligation the psychologist has for reporting specific information.  This explanation should be in language understood by the student. (Standard III, b).

Parents were also among those who had the rights  to be informed about certain things, including policies about record keeping and confidentiality.  For example, the 1974 Ethics Code stated that “the school psychologist informs the parent of the nature of records made of parent conferences and evaluations of the child.  The advisement includes what information goes into reports, who will receive the reports, and what safeguards are used for protecting the information” (Standard V, d). Writing during this time about the importance of due process, Kaplan, Hill and Ownby (1977) noted that school administrators sometimes advised against informing parents about such things out of fear that they “might get upset” (p. 39). For those reluctant to provide such information to parents, the authors reminded school psychologists that such advice conflicted with their ethical standards, as well as with newly-evolving legal requirements.  

The 1984 Ethics Code required that school psychologists “understand the importance of informing students/clients of all aspects of the potential professional relationship prior to beginning psychological services of any type” (Standard III, A, 5).  This explanation needed to be in language understandable to the student and to incorporate discussion of the limits of confidentiality, including “the uses to be made of information, persons who will receive specific information and possible implications of results” (Standard  III, B. 2).  It also required that “school psychologists discuss recommendations and plans for assisting the student/client with the parent” (Standard III, C. 4). But students and parents were not the only parties now considered to have informed consent rights.  In recognizing the potential conflicts experienced by school psychologists, the 1984 Ethics Code also required them to “define the direction and the nature of personal loyalties, objectives, and competencies, and advise and inform all persons concerned of these commitments” (Standard III, A. 4, emphasis added).  There was a list of possible concerned parties:

“In a situation where there are divided or conflicting interests (as between parents, school, student, supervisor, trainer) school psychologists are responsible for attempting to work out a plan of action which protects the rights and encourages mutual benefit and protection of rights.” (Standard III, A. 6).  

Similarly, in the 1997 Ethics Code, informed consent was emphasized throughout.   As it related to informed consent for services, Standard III (Professional Relationships and Responsibilities) included several duties.  Section A required that “parents and students are to be fully informed about all relevant aspects of school psychological services in advance” (III, A, 4); Section B required that school psychologists “explain important aspects of their professional relationships with students and clients in a clear, understandable manner” (III, B, 2, emphasis added); and Section C required that school psychologists discuss with the parent “recommendations and plans for assisting the student/client” (III, C. 5) and “discuss the rights of parents and students regarding creation, modification, storage, and disposal of confidential materials” (III, C, 6).   As it related to informed consent for disclosure of confidential information, Section A stated that “information is revealed only with the informed consent of the client, or the client’s parent or legal guardian except in those situations in which failure to release information would result in clear danger to the client or others” (Standard III, A. 9).  

The 2000 NASP Ethics Code continued to emphasize informed consent. “Parents and children are to be fully informed about all relevant aspects of school psychological services” (III, A, 3); and “school psychologists inform children and other clients of the limits of confidentiality at the outset of establishing a professional relationship (III, A, 11). (Also see further similar provisions in standards III, B and IIIC.).  This Ethics Code retained the responsibility to obtain informed consent before disclosing confidential information (see III, A, 9).  

In the current (2010) NASP Ethics Code, informed consent is emphasized from the beginning. The Table of Contents contains the statement that “school psychologists must . . . help clients and others make informed choices” (p. 1).  The Definition of Terms, in defining the term “client,” states that “a school psychologist–client professional relationship is established by an informed agreement with client(s) about the school psychologist’s ethical and other duties to each party” (p. 3, referencing Fisher, 2009).  The very first Ethical Standard raises consideration about which school psychology services require “informed parent consent” (Standard 1.1.1), and at least 13 subsequent Standards reflect the necessity of informing various parties.  

Dealing With Conflicting Loyalties and Responsibilities 

In discussing ethical issues in school-based assessments, Knauss (2001) noted that psychologists who are employed by a school district may have difficulty defining their loyalties.

Psychologists who provide services in school settings are often employees of the school district and may be faced with the issues of “who is the client?” Is it the child being tested, the child’s parents (or guardian), the teacher, or the school system? In some situations, the best interests of the child being tested are quite different from the best interests of the system requesting the evaluation. (Knauss, 2001, p. 231) 

In any given case, school psychologists may not only have more than one potential “client,” but may also interact with multiple non-client parties.  Moreover, these parties often have mutually conflicting interests, which leaves school psychologists with the task of deciding where their own loyalties lie in each case.  This becomes especially difficult when one party expects to be the school psychologist’s exclusive client. “This may occur, for example, when administrators demand that case study recommendations be made from their perspective but the school psychologist prefers taking a position advocating for the child”  (Fagan & Wise, 2007, p. 100). 

The role of a school psychologist has traditionally included providing consultation to others who work with students (Snyder, Quirk & DeMatteo, 2011). Although these consultations are often client-centered (i.e., focusing on a student who is considered the primary client) (Kratochwill & Pittman, 2002), school psychologists can also provide consultee-centered consultation (i.e., focusing on the personal problems of a teacher or other consultee), in which case the consultee may seem to become the “primary client.”  Unless the school psychologist has carefully explained the potential limits of confidentiality to the consultee in advance, this situation can potentially result in conflicting roles and/or conflicting loyalties.  (See Case #2, below.) 

The 2010 Ethics Code, like previous Codes, responds to this concern by giving school psychologists an ethical responsibility to explain their loyalties before beginning an assessment or intervention case: “School psychologists who provide services to several different groups (e.g., families, teachers, classrooms) may encounter situations in which loyalties are conflicted. As much as possible, school psychologists make known their priorities and commitments in advance to all parties to prevent misunderstandings” (III.2.4, emphasis added). This informed consent responsibility extends beyond children and parents, to include “all parties.” In other words, there is no longer a presumption that the school psychologist’s priorities always lie with the child, or with any other specific “client,” which makes it important to inform all parties in advance about the actual loyalties. 

Conflicts Between Ethical Responsibilities and Organizational Demands.  School psychologists perform their professional duties either as employees or as contracted agents of educational organizations.  These hiring entities, or their administrative representatives, often consider themselves to be the primary client.  Psychologists in any setting may encounter conflicting loyalties when the interests of their employer conflicts with the interests of those receiving their services. 

In this regard, no circumstances are more complex than those faced by psychologists who work within the school setting, with differing ethical responsibilities to their employer, to the students who receive their services, to the teachers who elicit their consultation, and to staff colleagues who are members of their team. No single-answer question would adequately clarify the potential conflicts of interest or the complicated confidentiality rules that must be established and explained among those relationships.  (Fisher, 2008, p.4) 

The 2010 NASP Ethics Code contains no Standard specifically addressing school psychologists’ responsibilities when organizational standards conflict with their ethical responsibilities, although its Introduction contains an acknowledgment that “the dual roles of employee and pupil advocate” might create conflicts of interest:  

Psychologists employed by the schools may have less control over aspects of service delivery than practitioners in private practice. However, within this framework, it is expected that school psychologists will make careful, reasoned, and principled ethical choices based on knowledge of this code, recognizing that responsibility for ethical conduct rests with the individual practitioner” (Introduction). 

On the issue of advocacy in behalf of students, the 2010 Ethics Code states that “School psychologists have a special obligation to speak up for the rights and welfare of students and families, and to provide a voice to clients who cannot or do not wish to speak for themselves.”  But this has some limits:

“Nothing in this code of ethics, however, should be construed as requiring school psychologists to engage in  insubordination (willful disregard of an employer’s lawful instructions) or to file a complaint about school district practices with a federal or state regulatory agency as part of their advocacy efforts” (NASP, 2010, Definition of Terms).

In some circumstances, school psychologists might actually need to remove themselves from a case:

“When personal beliefs, conflicts of interests, or multiple relationships threaten to diminish professional effectiveness or would be viewed by the public as inappropriate, school psychologists ask their supervisor for reassignment of responsibilities, or they direct the client to alternative services” (Standard III.4.2). 

Conflicts between administrative demands and the best interests of the child can overlap with the conflicts between administrative demands and the profession’s ethical standards.  When describing their most ethically challenging situations, school psychologists put at the top of the list the problem of “administrative pressure to act unethically” (Jacob-Timm, 1999, p. 207).   

Although the 2010 NASP Ethics Code has no Standard describing exactly what to do in such circumstances, it does include a recommendation that school psychologists “consult the American Psychological Association’s (2002) Ethical Principles of Psychologists and Code of Conduct for guidance on issues not directly addressed in this code” (Introduction); and in a section on “Multiple Relationships and Conflicts of Interest, NASP Standard III.4.2  also cites the 2002 APA Code.   

However, the relevant section of the APA Ethics Code has been amended.  As originally published in 2002, APA Standard 1.03 required psychologists to resolve such conflicts in a way that adheres to their Ethics Code “to the extent feasible.” However, as subsequently revised (APA, 2010a), the language of that Ethical Standard gives psychologists a responsibility to “take reasonable steps” to defend their Ethics Code against administrative demands to behave unethically:   

“If the demands of an organization with which psychologists are affiliated or for whom they are working are in conflict with this Ethics Code, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights.” (APA, 2010b, Standard 1.03, Conflicts Between Ethics and Organizational Demands)   

 Conflicts Between Ethical Responsibilities and Legal Demands.  Ordinarily, laws affecting school psychologists do not require them to define the term “client” in any particular way, so laws are unlikely to conflict with ethical standards in that respect.  However, laws can require behaviors that reduce the school psychologist’s autonomy in weighing conflicting loyalties.  This would include laws that define the rights of parties other than the child in ways that limit the child’s rights, especially confidentiality rights (e.g., laws giving parents the right to obtain information about their minor child).  

The most prevalent legal requirements about confidentiality and record keeping . . . will arise from FERPA [Family Educational Rights and Privacy Act, 2009] and IDEA [Individual Disability Education Act, 2009]. Under these regulations, parents have the right to inspect and review the minor student’s records and have the right to request that a school correct records that they believe to be inaccurate or misleading. Information may be shared among school personnel, but (with specific exceptions) schools must have written permission from the parent or eligible student in order to release any information from a student’s education record to another party outside the school team. All this must be explained to both the minor and the parent(s) before mental health services are provided. (Fisher, 2013, p. 170). 

The 2010 NASP Ethics Code contains a separate Standard addressing the potential conflict between ethical responsibilities and legal regulations.  According to Standard IV.2.3: 

“When conflicts between ethics and law occur, school psychologists take steps to resolve the conflict through positive, respected, and legal channels. If not able to resolve the conflict in this manner, they may abide by the law, as long as the resulting actions do not violate basic human rights.” 

Again, there is a footnote referencing the 2002 APA Ethics Code; but since its revision in 2010, the wording in the relevant APA Standard no longer states that psychologists may simply abide by the law when faced with an ethical-legal conflict.  Instead, it contains language identical to that in the amended Standard 1.03 quoted above, which requires psychologists to “take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code” (APA, 2010b, Standard 1.02).  

 In addition to laws that can require certain behaviors, there are enabling laws that allow behaviors which would fall below the NASP Ethical Standards.  This would include laws that allow voluntary disclosure of confidential information without consent from child or parent.  However, this does not create a true ethical-legal conflict, since the school psychologist remains legally free not to disclose in those circumstances, and the parent and student remain free not to consent to the disclosure. In circumstances when legal standards fall below the professions ethical requirements, NASP Standard IV .2.2 makes the ethical obligation clear: “The Principles for Professional Ethics may require a more stringent standard of conduct than law, and in those situations school psychologists are expected to adhere to the Principles.” 

 Choosing a New Ethical Question 

Fisher (2009) suggested that when determining their ethical responsibilities, psychologists should replace the old singular question with the plural question, “What are my ethical responsibilities to each of the parties involved?” (p. 1).  This way of framing the question is consistent with the NASP informed consent requirement to “make known their priorities and commitments in advance to all parties to prevent misunderstandings” (NASP 2010, Standard III.2.4, emphasis added).   

Since most of the services provided by school psychologists are likely to involve multiple parties, it is necessary to enter the informed consent conversations well prepared. School psychologists must consider in advance what their role(s) might be with each of these multiple entities. This advance preparation would be especially important before entering into the confidentiality portion of the informed consent conversation (Fisher, 2008). “It is not unusual to discover that a flawed decision resulted from the lack of awareness of a party’s right to confidentiality, informed consent, or evaluative feedback” (Koocher & Keith-Spiegel, 1998, p. 14). 

 There may be no setting in which the informed consent interview is more important.  This is true whether the educational setting is public or private, elementary, secondary, undergraduate or graduate. Relationship confusions abound and multiple relationships may be unavoidable. Psychologists must be clear about exactly which professional “hat(s)” they are wearing from one moment to the next, and about where their loyalties lie. (Fisher, 2012, p. 365)

Preparing for the initial informed consent conversation about confidentiality, and describing its implications for all parties, requires considerable advance planning. Otherwise, by failing to consider all of the limits that might later be placed on confidentiality by others’ demands for (or rights to obtain) confidential information, school psychologists are at risk for making confidentiality promises they cannot keep (Fisher, 2008).  While it may not be possible to know in advance exactly which “hats” one might later wear in a given case, the initial informed consent interview can describe the potential roles and note their confidentiality implications.   

Table 1 contains selected NASP Ethical Standards as they apply to some of the parties that might be involved in a school-based case.  These ethical responsibilities of school psychologists flow from the rights of each party, so reviewing these Ethical Standards can be helpful for answering the suggested new ethical question, “What are my ethical responsibilities to each of the parties involved?” [See Table 1 at end of text]

 Familiarity with these NASP Ethical Standards can help school psychologists protect the rights of all parties, beginning with the initial informed consent process.  For example, although parents must provide the formal consent for their minor child to receive services, the child also has certain rights that must be protected, including the right to be informed about the services that will be provided and about the potential limits of confidentiality.  According to the NASP Ethics Code (2010), the school psychologist must seek the child’s assent or “affirmative agreement to participate” (Definition of Terms, p. 3) before providing services, and when feasible must obtain the child’s assent before disclosing information to others, including the parents (Standard I.1.4 and I.2.4).  

Finally, additional questions may be important for clarifying the responsibilities of an outside consultant as compared to those of a school psychology employee.  According to the 2010 NASP Ethics Code, either role would be considered “school-based practice” if the psychologist is acting under the authority of the school (see Definition of Terms, p. 3), and the same ethical standards would apply to both.  Like an employee, an outside consultant might provide services at various levels, including system consultation to the school administration, individual consultations to staff, or intervention services to individual students.  However, an outside consultant may not only need to ask the plural ethical question suggested above, but may also need to pose further ethical questions to clarify how local school policies affect rights and determine responsibilities. For example, questions to administrators might include “What limits may exist to confidentiality of the information that will be produced by my consultation?” Fuqua et al. (2012) have provided a list of such questions for organizational consultants. 

Implications

Implications for School Psychology Practice.  How might changing to a plural question affect the day-to-day work of a school psychology practitioner?  School psychologists who enter a new school system with that plural question in mind might be more likely to clarify in advance any school policies that would affect their relationships with any party.  For example, regarding school policies about the information provided to parents, one might ask in advance, “What are the policies that might affect what I write in my reports?”  (See Case #3, below.)  Regarding limits of the confidentiality that can be promised to students, they might ask, “What are the principal’s policies about the types of information that must be voluntarily shared with parents of minor students, even if that is not legally required?” and “What are the policies regarding the types and amount of information about a student or a family that the school psychologist is expected to share with multidisciplinary teams?” Only with answers to such questions can the school psychologist be prepared to conduct an accurate informed consent discussion with a student or parent.

Furthermore, with the plural question in mind, a school psychologist is more likely to review the NASP Ethical Standards to clarify the rights of all parties, including others who work in the setting (as reflected in Table 1).  With such preparation, school psychologists can be better prepared for consultations with school staff, including teachers, colleagues, and administrators.  Not only will this lead to better informed consent conversations before beginning a consultation with others, but it will also help the school psychologist be in a better position to provide ethics-based training for non-psychology clinical colleagues and for non-clinical staff, thereby helping others to better protect the rights of students and families who receive services.  

The expanding roles of school psychologists can create informed-consent challenges. In the Responsiveness to Intervention (RtI) process, school psychologists now participate in every level of the Multi-Tier System of Support (MTSS) (NASP, 2006).  This can include serving on policy-level problem-solving teams or consulting with general education teachers about Tier 1 practices, as well as providing or facilitating special education services to particular students and serving on multidisciplinary teams that review such services (Tiers II and III). With the plural question in mind, school psychologists can clarify in advance with school administrators and team members the extent to which they might share confidential student information with others at each Tier.  When they conduct the initial informed consent conversations with students and parents, they are then prepared to describe their various potential roles and explain their possible implications. For example, they might explain that if they later need to meet with other members of an intervention team, they would need to share information that would help team members provide the needed services. 

Finally, asking, “What are my ethical responsibilities to all the parties in this case” can help the school psychologist anticipate — and potentially avoid — some of the ethical dilemmas that can be created by thinking only in the singular. For example, this may be especially helpful when considering the rights of family members in cases involving separated or divorced parents, or in cases involving unusual extended-family living arrangements.

Implications for Training, Supervision and Continuing Education.  The “Who is the client?” question is raised not only by practicing school psychologists but also in graduate training and supervision relationships (Crespi, 1997).  What if we stopped asking it and adopted the new plural question instead?   How might that affect training and supervision?   

First, school psychology graduate students and supervisees could be encouraged to consider, in advance of entering each case, which parties might ultimately be involved.  They could be given the opportunity to problem-solve in advance about their potentially conflicting loyalties, in order to be prepared to explain their role and relationship with each party.   

Second, using Table I and case vignettes, trainees could prepare for conducting the informed consent conversation with students, parents, teachers, and other parties by practicing with each other.  Not only might the content differ in each of these conversations, but the language level may also need to differ because this explanation must take into account  “language and cultural differences, cognitive capabilities, developmental level, age, and other relevant factors so that it may be understood by the individual providing consent” ( NASP, 2010, Ethical Standard 1.1.3). It is helpful to anticipate such needs and practice finding the appropriate vocabulary in advance. 

Third, asking the broader question, “What are my ethical responsibilities to each party?” would increase the likelihood that everyone’s informed consent rights would be protected, because it would alert trainees to the fact that the NASP Ethical Standards require them to inform all parties, including minor students, about the services that will be provided (Ethical Standard I.1.4) and about confidentiality and its limits (Ethical Standard I.2.3).  Adult students must also be informed about their rights regarding records that will contain information about them (Ethical Standard II.4.1).  Before giving consent for their minor child to receive services, parents must be informed not only about the nature and scope of the prospective services, but also about foreseeable risks as well as benefits, rules about confidentiality, and their right to remove their child from participation in screenings for mental health problems (Ethical Standards I.1.1 and I.1.3). 

In supervision relationships, the supervisor can use Table 1 to help supervisees think in advance about the parties that might be involved in the case, and about the rights that must be protected.  Forethought is an essential component in ethical practice, and this exercise would help supervisees learn the importance of considering everyone’s rights in advance. 

In continuing education training for practicing school psychologists, the trainers and workshop leaders could introduce the broader, plural question and encourage its use.  School psychologists could provide case examples from their own settings, to see how that question might be helpful in planning their work and carrying out their ethical responsibilities to all parties.  

Finally, since this is an issue that confronts all school-based mental health professionals, school psychology could lead the way in conducting multidisciplinary training.  Like school psychology, other professions have tended to think in singular terms, or to presume that the child must always be considered the primary client.  For example, Glosoff & Pate (2002) advised school counselors to “clarify that their consultation is on behalf of students and that only the students are their clients (except if school counselors offer counseling to students’ families)” (p. 20, emphasis added).  School social workers were similarly advised that “when conflicts of interest arise, the primary client should be assumed to be the student” (School Social Work Association of America, 2008, p. 2, emphasis added).  A focus on the broader new question could prepare all school-based mental health professionals to protect the rights of all parties involved.

 Case Vignettes 

Case vignettes can be useful for encouraging school-based professionals and trainees to ask, in advance, “What are my ethical responsibilities to each of the parties involved in this case?” and for helping them practice how they will answer that question in various types of cases.          In the vignettes below, the focus is not on the clinical issues, but on the ethical responsibility to protect each party’s rights.   

Case #1 

A school psychologist is meeting with Mrs. Smith in preparation for conducting a routine re-evaluation for her sixth grade child, Cathy, who receives special education services. The father has given written consent for the evaluation, but he now lives apart from the family in another state, so he is not present at the interview. Mrs. Smith requests that he not be informed about the results of the upcoming evaluation. 

In preparing for the informed consent conversation with a separated or divorced parent, asking “Who is the client?” is not helpful.  The school psychologist should be clear about any applicable local school policies, state laws, or federal regulations regarding not only the rights of the child, but also the rights of each parent. Here, there must be an advance decision about whether Mr. Smith will be routinely notified about the results of this evaluation, and if not, what his rights are if he initiates a request to receive a copy of the results. Such decisions can be affected not only by school policies, regulations, and laws, but also by the nature of court orders regarding custody arrangements, and by whether Mr. Smith’s parental rights have been terminated for any reason.  The school psychologist may need to clarify such matters before responding to Mrs. Smith’s request.  Meanwhile, until such matters are clarified, it would be ethically important in conversations with both Mrs. Smith and Cathy not to make (or by silence to imply) a promise of confidentiality that may ultimately be impossible to keep. 

Case #2

A school psychologist has just completed an evaluation of a first-grade student who was referred by his teacher, Miss Jones.  The student is hyperactive and difficult to control in the classroom, and Miss Jones has requested assistance in devising a behavior management plan.  In the process of the consultation, this new young teacher breaks down and confides to the school psychologist that she has just been diagnosed with a serious disease, and that her lesbian partner has just abandoned her.  She reports that her level of stress is so great that she has begun drinking too much at home after work and is tempted to bring alcohol to work. She requests that the school psychologist meet with her regularly during this difficult time, and she does not seem open to pursuing the referrals the psychologist suggests to her.

Asking “Who is the client?” here would elicit some singular answer that offered no guidance about how to balance the interests of the child, the teacher, other students in the classroom, and the school administration that hired both the psychologist and the teacher.  In contrast, asking “What are my ethical responsibilities to each of the parties?” would help the psychologist prepare to weigh the loyalties in advance. 

For example, before beginning a consultation with teachers or colleagues, it can be helpful for the school psychologist to review relevant standards of the NASP Ethics Code that determine ethical responsibilities specific to them (See Table 1). The school psychologist will then be prepared to routinely begin a teacher consultation conversation with an explanation of the limits of confidentiality that will arise from the fact that the school psychologist also has responsibilities to the student(s) and to the school administration.  This is especially important if, as here,  the psychologist must “change hats” in mid-stream as the consultation role shifts from being student-centered to being “consultee-centered.” In this case, there is an additional ethical responsibility to handle the teacher’s private medical information and relationship information with sensitivity. For example, NASP Ethical Standard 1.2.6 requires that the school psychologist “not share information about the sexual orientation, gender identity, or transgender status of a . . . school employee with anyone without that individual’s permission;” and Standard 1.2.7 prohibits a school psychologist from sharing “sensitive health information about a . . .  school employee with others without that individual’s permission.” 

Through a well-planned initial informed consent conversation, the psychologist can (1) protect the teacher’s informed consent rights (i.e., the right to make an informed decision about how much to confide); (2) prevent a betrayal of confidence that would result from an actual or implied promise of absolute confidentiality; and (3) leave the school psychologist ethically free to contact the administration if that seems necessary for protecting the safety of the evaluated student and other students in the classroom. 

Case # 3

The school psychologist has been advised by her employing school system that she must include in her assessment reports only such recommendations as are directly related to a child’s educational needs.  Specifically, she may not include recommendations for neurological, neuropsychological, or medical services. 

The school psychologist is aware that the school district has limited funds and that her administration is trying to avoid being held accountable for costs of services beyond those available within the school system. Asking “Who is the client?” would require her to choose between the interests of her employer and those of her student assessment clients.  Instead, if she asks “What are my responsibilities to all of the parties involved?” she will weigh the needs of both and decide in advance where her loyalties will lie if such conflicts arise.  She may decide to advocate for a different policy within the school system and may cooperate with administrators in finding ways to word the needed referral in her reports.  Meanwhile, she will have this potential conflict of interest in mind when she conducts the initial informed consent conversation and final feedback session with the parents. Finally, if she finds it necessary to exclude certain referral recommendations in her written report, she may decide to provide them to the parents orally, along with a possible referral for second opinion and information about the parents’ right to appeal any school decision about services.

———————–

 Table 1

School Psychologists’ Relationships With
and Ethical Responsibilities Toward Various Parties
(Paraphrased from Selected 2010 NASP Ethical Standards)


Responsibilities Toward All Client Parties

Standard 1.2.1: Respect the right of persons to self-determine whether to disclose private information

Standard 1.2.2: Minimize intrusions on privacy; do not seek or store private information that is not needed in the provision of services.  Do not disclose information that would put the student or family at legal, social, or other risk if shared with third parties.

Standard  1.2.3: Inform students and other clients of boundaries of confidentiality at the outset of establishing a professional relationship; seek shared understanding with clients regarding the types of information that will and will not be shared with third parties. (Exception = in crisis, conversation can be delayed until crisis is resolved.) Recognize that this conversation may need to be reopened and repeated to ensure client understanding.

Standard  1.2.4: Respect the confidentiality of information obtained during professional work; reveal no information to third parties without consent. (Exceptions = failure to release information would result in danger to the student or others.)

Standard 1.2.5: Release confidential information only for professional purposes and only to persons who have a legitimate need to know.

Standard 1.2.6: Respect right of privacy of students, parents, and colleagues with regard to sexual orientation, gender identity, or transgender status; do not share such information with anyone without the individual’s permission.

Standard 1.2.7: Respect right of privacy of students, parents, other family members, and colleagues regarding sensitive health information, such as presence of a communicable disease.

Standard I.3.1: Do not engage in or condone discrimination  against students and their families, other recipients of service, supervisees, and colleagues based on race, ethnicity, color, religion, ancestry; national origin; immigration statuts; socioeceonomic status; primary language; gender; sexual orientation; gender identity or gender expression; mental, physical, or densory disability; or any other characteristics.

Standard III.2.4: If providing services to several different groups (e.g., families, teachers, classrooms) in which there may be conflicting loyalties, make known priorities and commitments in advance to all parties to prevent misunderstandings.

Standard III.3.2: If referring a client to another professional for services, ensure that all relevant and appropriate individuals, including the client, are notified of the change and reasons for the change, and provide clients with lists of suitable practitioners from whom the client may seek services.

Standard III.4.3: Do not exploit clients through professional relationships or condone those actions by colleagues. 

Additional Responsibilities Toward Students 

Standard I.1.2: May provide services to mature minors without parental consent where allowed by state law and school district policy.

Standard I.1.4: Honor a student’s right to be informed about the services provided.

Standard I.1.4: Encourage voluntary participation in decision making about services to extent feasible; ordinarily seek student’s assent to services.

Standard I.2.4: Whenever feasible, obtain student’s assent prior to disclosing confidences to third parties.

Standard I.3.4: Strive to ensure that all children have equal opportunity to participate in and benefit from school programs.

Standard  II.4.1: Discuss with adult students their rights regarding creation, modification, storage and disposal of records that result from the provision of services; notify them of electronic storage and transmission of identifiable information and the associated risks to privacy. 

Additional Responsibilities Toward Parents or Guardians 

Standard  I.1.1: Encourage and promote parental participation in school decisions affecting their children; notify parents prior to administration of screenings for mental health problems and give them the opportunity to remove their child from participation in such screenings.

Standard I.1.2: Seek parental consent before establishing a client relationship with student for the purpose of diagnosis, assessment for special accommodations, individual or group counseling, or other nonclassroom therapeutic intervention. (Exception = urgent situations or self-referrals by a minor student)

Standard I.1.3: Fully inform individual providing consent for services about nature and scope of services, assessment/intervention goals and procedure; any foreseeable risks or consequences, potential benefits, cost of services (if any), and limits of confidentiality; take into account language, cultural differences, and cognitive capabilities that might affect understanding..

Standard I.1.5: Respect wishes of parents who object to school psychological services and attempt to guide them to alternative resources.

Standard  II.3.10: Encourage and promote parental participation in designing interventions; discuss with parents the recommendations and plans for assisting their children, taking into account the ethnic/cultural values of the family; inform parents of available alternatives and available sources of support at school and in the community.

Standard  II.4.1: Discuss with parents their rights regarding creation, modification, storage and disposal of records that result from the provision of services; notify them of electronic storage and transmission of identifiable information and the associated risks to privacy.

Standard II.4.4: Ensure that parents have appropriate access to their child’s records; parents have a right to access any and all information used to make educational decisions about their child. 

Additional Responsibilities Toward Administrators, Teachers and Professional Colleagues 

Standard 1.2.6: Respect right of privacy of colleagues with regard to sexual orientation, gender identity, or transgender status; do not share such information with anyone without the individual’s permission.

Standard 1.2.7: Respect right of privacy of colleagues regarding sensitive health information, such as presence of a communicable disease.

Standard I.3.1: Do not engage in or condone discrimination  against supervisees or colleagues based on race, ethnicity, color, religion, ancestry; national origin; immigration status; socioeceonomic status; primary language; gender; sexual orientation; gender identity or gender expression; mental, physical, or sensory disability; or any other characteristics.

Standard III.2.2: Make reasonable efforts to become integral members of the client service systems to which they are assigned; establish clear roles within those systems while respecting the various roles of colleagues in other professions.

Standard III.2.4: If providing services to several different groups (e.g., families, teachers, classrooms) in which there may be conflicting loyalties, make known priorities and commitments in advance to all parties to prevent misunderstandings.

Standard III.3.1: Cooperate with other psychologists and professionals from other disciplines in relationships based on mutual respect; promote coordination of services.

Satndard III.3.2: If referring a client to another professional for services, ensure that all relevant and appropriate individuals, including the client, are notified of the change and reasons for the change, and provide clients with lists of suitable practitioners from whom the client may seek services.

Standard III.4.3: Do not exploit clients through professional relationships or condone those actions by colleagues.

Standard IV.3.2:  If suspecting that another school psychologist or another professional has engaged in unethical practices, attempt to resolve the suspected problem through a collegial problem-solving process, if feasible.

Standard IV.3.3:  If a collegial problem-solving process is not possible or productive, take further action appropriate to the situation.

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