Virginia Gutman, Editor
Chapter 3: Law and Ethics in Mental Health and Deafness
William P. McCrone
Therapists working with deaf clients can and should achieve a basic level of legal literacy in dealing with the unique intersections of ethics and law in therapy with deaf people (McCrone, 1988). The most likely future negligence/malpractice suits by deaf clients against therapists, their supervisors, and human service agencies will be based on alleged ethical violations in areas such as communication and clinical competence, dual relationships, failure to obtain meaningful informed consent, the negligent hiring of unqualified interpreters in therapy, as well as testing and diagnostic errors that cause client harm. The irony is that these suits may be propelled by naive efforts by some hearing therapists who think they are complying with or advancing the goals of the Americans With Disabilities Act (ADA) (Bruyere & O’Keefe, 1994).
This chapter explores a number of issues surrounding the intersection of ethics and law, including the special legal significance of the therapist’s code of ethics and its underlying principles; the four essential elements of a “prima facie” (i.e., essential, basic) negligence/malpractice case against a therapist; deafness-related code of ethics case studies to illustrate the elements of potential negligence/malpractice suits against therapists; ethical code clarifications and addenda in serving deaf people; what it means to be a qualified interpreter in mental health settings when that is the only alternative; and ethical teletherapy technology and the training of specialists and subspecialists (e.g., addictions, pastoral counseling, gerontology, child abuse/neglect, cochlear implant adjustments, psychopharmacology) in therapy with deaf people (Miller, 1998). It also offers a basic reference list and several websites on law and ethics for mental health professionals serving deaf people.KNOW YOUR CODE OF ETHICS AND ITS FUNDAMENTAL ETHICAL PRINCIPLES
Too often, our relationship as therapists to our code of ethics is mechanical and superficial. We are attracted to the notion of an ethical cookbook or checklist. Students often say, “Just tell us the rule and we’ll follow it.” However, students must learn what seasoned therapists know, which is that all codes of ethics in mental health professions are wonderful, incomplete, evolving documents written by committees.
Codes of ethics can be maddeningly vague in one section and all too specific in other sections. Some codes are brief; others are encyclopedic. Codes of ethics used by therapists are notoriously ineffective in solving conflicts between code sections and setting priorities among code principles. Because they reflect surveys of practitioners’ ethical dilemmas, related state statutes, and lawsuits, the codes often tell us more about the past than the present or the future. For example, the “duty to warn” rule regarding specific client threats and identifiable potential victims established by Tarasoff v. Regents of the University of California (1976) has been codified in ethical codes and state laws, but those ethical rules and state laws were not in place when the University of California psychologist needed them. Current therapist codes of ethics still do not adequately guide the therapist dealing with clients who claim to be purposely infecting unnamed victims and their sexual partners with deadly diseases.