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Ethical dilemmas in evaluating programs with family court related clients
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Evaluation and Program Planning, Vol. 8, pp. 45-51, 1985 Printed in the USA. All rights reserved.
ETHICAL DILEMMAS IN EVALUATING PROGRAMS WITH FAMILY COURT RELATED CLIENTS
PAUL L. JOHNSON Independent
Consultant,
Washington,
DC
ABSTRACT Two ethical dilemmas are discussed; breaching client confidentiality in order to intervene in the client’s illegal behavior, and defining the role of evaluator as expert witness. The evaluation context concerns a combined program development and evaluation project with clients involved in famiIy court proceedings for child abuse or neglect. Different perspectives, approaches, and experiences in resolving each dilemma are reviewed. The conclusion argues that approaches to ethical dilemmas in evaluation projects must go beyond techniques to dtkguise data, to include an assessment of the values and value commitments connected to the different roles an evaluator must perform.
situations in which an evaluator must break a confidentiality agreement with an agency’s client in order to report the client’s child abusive or neglectful behavior; and, the second one concerns questions about the appropriate role of evaluators as expert witness, subpoenaed or otherwise, in a family court proceeding involving an agency client. The discussion of each dilemma focuses on both the legal and moral arguments for and against intervention in the personal life and legal affairs of agency clients connected to an evaluation project. These two dilemmas are not new to evaluators. As the survey conducted by Sheinfeld and Lord (1981) pointed out, the two most important ethical issues rated by evaluators were: knowledge and adherence to legal and human rights concerns, and protection of the confidentiality of individuals. The paramount importance of these two issues for evaluators may be partly understood from evaluation history, from such situations as the National Income Transfer Experiment, in which local prosecutors successfully subpoenaed individually identifiable data from the evaluators (Rossi & Lyall, 1976). Cronbach (1980) reported a more recent occurrence involving an evaluation of a high school drug abuse intervention program. Other surveys have shown that subpoenas for data are not unique
The evaluation profession has paid considerable attention to the ethics of its practice. Discussions of ethical dilemmas in evaluation research have tried to bring out the responsibilities that evaluators should assume in formulating projects, in carrying out data collection and analysis, and in disseminating results (Anderson & Ball, 1978). The development of evaluation professional standards (Evaluation Research Society, 1981) has more formally established a definition of these responsibilities. Although the ethical dilemmas of evaluators largely appear to stem from questions of appropriate methodology in such areas as informed consent, deception, privacy, and confidentiality, these dilemmas are better understood as a function of the multiple roles the person as evaluator often performs (Sieber, 1980). It is rarely possible for evaluators to segregate their role from that of others, such as consultant, manager, clinician, teacher, or, as in the more general case, of citizen or humanitarian. These separately prescribed role responsibilities inevitably overlap; and thus, when discrepancies occur, role conflicts often surface in the expressed form of ethical dilemmas. This paper discusses two ethical dilemmas that face evaluators working in human service agencies with clients who are referrals of a community family court and child welfare system. The first dilemma concerns
This paper is supported by the Administration for Children, Youth and Families. U.S. Department of Health and Human Services. Grant No. 90 cw 661/01. Requests for reprints should be sent to Paul L. Johnson, 3315 Wisconsin Avenue, NW, Washington, DC 20009.
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PAUL
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L. JOHNSON
to evaluators, but are common, and increasing in numbers, for all social science researchers (Carroll & Knerr, 1975). Social scientists have responded in two ways to the issue of court subpoenas. The first suggestion is to avoid subpoenas by employing procedures to mask the identity of all evaluation data collected on individuals (Boruch & Cecil, 1979). The second is to advocate for legislation on statutory privileged communication for researcher-subject relationships, or “shield laws,” which can protect all researchers in a given subject area from compulsory disclosure of information. One CONTEXTUAL
BACKGROUND
The evaluation context for this discussion of ethical dilemmas is a preventive child abuse and neglect treatment program. The particular program involves a private, nonprofit human service agency with a purchase of service agreement with the county child protection office to provide parent education classes to parents indicated for child abuse or neglect. If the abuse or neglect is acute, and the child’s health is in danger, the child may be placed in a foster home; otherwise the child remains in the home. In cases involving foster care, the child protection office has custody of the children, either by the parents’ voluntary consent or by a court order for placement of the children in foster care. To regain custody of their children, the parents must demonstrate to the child protection office and the judge of family court that they are now capable of caring for their children adequately. The child protection office is mandated to show “all diligent effort” to help the parents acquire parenting skills to adequately care for their children. To this end, the child protection office makes a referral of the parents to an agency providing parenting education. At 6-month intervals, the child’s foster care placement is reviewed in family court, and a decision is made about the parents’ present capacity to care for the child and whether or not the child should be returned home. In these family court proceedings the child protection officials provide the judge with assessments of the parents’ progress in resolving the original problem of inadequate parental care. As well, the staff from the private human service agency who work directly with the parents are often subpoenaed to testify about the parents’ progress. This agency’s confidential case records are often made available to the child protection office and the family court, with the clients’ written consent. In cases where it is determined that parents are not cooperating with the private agency providing the parent education, the child protection office can petition the family court judge for a termination of parents’ rights. In other cases, where parents are cooperating with the private agency, generally by
form of this statutory privilege is the confidentiality certificate. It is granted to individual research projects upon application to and review by a federal agency (Nejelski & Lerman, 1971). Although both the methodological and legislative responses to the subpoena issue have made an invaluable contribution to evaluators and their capability to handle ethical dilemmas of confidentiality, this paper will argue that these responses are insufficient for situations involving qualitative-type evaluation in agencies serving clients who are family court referrals.
OF ETHICAL
DILEMMAS
showing good attendance, but are not showing improvement in parenting skills, the family court usually authorizes continuation of the childrens’ placement in foster care and the parents’ court-ordered referral for parent education services. The private human service agency just described was the focus of a 2-year program development and evaluation project that the author directed beginning in 1981. The project was supported with federal research monies to (a) conduct an assessment of the parent education needs of parents with developmental disabilities, (b) assist an agency in the development of a special parent education program for these parents, and (c) evaluate the impact of such a program. The project staff, consisting of the author and two research associates, planned a 2-year program development and evaluation project with the professional staff of the private human service agency. We agreed that the role of the project staff was to conduct a formative evaluation of the group dynamics taking place in three parent groups led by the agency’s professional staff. The project staff would observe the parent groups and provide weekly feedback to the agency group leaders on how group dynamics and planned activities were working to achieve the parent education goals. In a consultative role, the project staff would work each week with the group leaders to plan, design, and implement innovative group activities adapted to the learning styles of parents with developmental disabilities. We knew beforehand that these parents had special needs for training in parenting skills because of observable learning problems and poor self-esteem, and that the poor socioeconomic conditions of their family life resulted in chronic crisis situations that often made it difficult to hold regular parent education classes. To better understand the special education needs of these parents, the project staff made arrangements with the agency to interview the parents about their parenting problems, their feelings toward their children, and their evaluation of the parent group activities.
Ethical Dilemmas with Family Court Related Clients
When the project staff first outlined the scope and tasks of our program development project with the professional staff of the private human service agency, a major issue discussed was our project’s relationship to the county child protection office and the family court. It was agreed that the program development project staff would not involve themselves in any way with the clients’ relationships to the child protection office or the family court. The informed-consent form for the clients’ participation in the project stated that (a) participation in the project was not obligated on the basis of their court-ordered referral to the agency for parent education services, (b) refusal to participate would not affect their relationship with family court, and (c) anonymity of their names in project reports would be assured. The possibility that the project’s parent group observation notes, parent interview tapes or transcripts, and staff testimony could be subpoenaed by the family court was also discussed. We thought that a subpoena
CONFIDENTIALITY
47
was unlikely, but to be safe we decided to apply for a federal certificate of confidentiality (U.S. Department of Health, Education and Welfare, 1979). We believe that our being a federally funded project that already had a university review board approval was helpful in our obtaining a confidentiality certificate from the National Institute of Mental Health. Several months into the implementation of the project, we, the project staff, found ourselves continuing to discuss ethical dilemmas connected with client interview procedures. The discussions centered around the question of whether it was right or wrong to intervene in behalf of the parent or the child as clients of the agency. Two possible situations of questionable intervention were identified: (a) when a project interviewer is witness to an incident, or indicators, of child abuse and neglect in a client’s home and; (b) when a project staff member is subpoenaed by family court to testify or turn over data records on a specific parent of the agency.
AND REPORTING ILLEGAL BEHAVIOR
In the first situation, the project staff, whose task was to interview the parents in the home, often with the children present, were concerned about what to do if they witnessed an incident of child physical abuse or, more likely, if they discovered indicators of child neglect. If the incidence was particularly severe, or the indicators especially clear, was it ethically justifiable to do nothing because it was not part of their role as evaluators or program developers? Was it best to inform the human service agency professional staff and let them decide to investigate it at a later point? Would that action breach the agreement of confidentiality? On the other hand, would intervention by reporting, or “hotlining,” the incident or indicators of abuse or neglect to the child welfare agency create repercussions that would jeopardize continuation of the entire program development and evaluation project? Should the interviewer try to counsel the parents to report the incident themselves? Should the interviewer assume he or she had adequate counseling skills? Should the interviewer try to forestall the witnessing of an incident or an indicator by warning the parent, at the time of obtaining consent, that the interviewer as a citizen had an obligation to report? However, would such a warning possibly jeopardize the parents’ consent to the interview? For guidance in examining these questions weighing both ethical and tactical research decisions, we found several parallel situations in which other professionals have faced similar questions. Criminologists, delinquent youth workers, social workers, psychiatrists, psychotherapists and anthropologists have ail addressed the issue of reporting crimes or illegal behav-
ior, and they have come up with different and interesting approaches to a definition of their appropriate roles. Criminologists have been concerned about incriminating themselves by withholding information about criminal offenses committed by the subjects of their research (Wolfgang, 1981). By not reporting a criminal offense, a criminologist might face prosecution as an “accessory after the fact.” The criminologist might be legally committing the offense of misprision of a felony. Although this offense is obsolete in many jurisdictions, it is often used by the police in attempts to obtain cooperation from citizens in gathering evidence for criminal convictions (Rosenheim, 1965). Aside from the legal question of breaching subject confidentiality to report a crime, Wolfgang asked whether or not the criminologist has a moral responsibility to report. In which situations can it be said that reporting would be beneficial to the criminal offender? In other situations, would the potential injury to the offender (prosecution, conviction, and imprisonment) be outweighed by the benefit to the safety of others and the well-being of society? Regardless, his advice is “if any researcher doubts the moral obligation to maintain confidentiality, he should abstain from this kind of research” (Wolfgang, 1981, p. 52). Although probably sound advice, this “heat-in-the-kitchen” approach to an ethical question does not help the unsuspecting program evaluator. Juvenile delinquent youth workers often face the ethical dilemma of reporting criminal activity. They must assess the relative benefit of reporting to the police a particular youth, or the whole gang, compared
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PAUL L. JOHNSON
with the risk imposed on other persons, friends, relatives, or community residents who might be victimized by the youth or the gang. The youth worker in the context of making “progress” with a gang to reduce delinquent behavior will often be confronted with the backslider type of youth, who slips back into delinquent behavior (Brymer & Farris, 1967). Should the worker report the individual gang member’s criminal activity and most likely jeopardize the larger progress with the whole gang? Speaking to this dilemma, Rosenheim (1965) offered one argument favorable to the decision to report, which also raises an interesting point about the reporting dilemma. She said, “The underlying objectives of the street work agency and its professional staff are law compliance and social adjustment among aggressive youth, and those aims must, it seems to me, override any limited therapeutic benefits which maintaining confidences might confer” (p, 672). Regardless of whether or not one agrees that these should be the objectives of street work agencies, or that law compliance overrides therapy, the point is that professionals, evaluators or otherwise, must consider the accountability of their activities to the objectives of the program or organization they intend to assist. It is contradictory for a professional to employ methods or procedures in working with an organization that are directly contrary to the organization’s objectives; in other words, consciously not making it a policy to report child abuse or neglect in a preventive child abuse and neglect treatment program. Psychiatrists and psychotherapists have also directly faced this issue of breaching confidenti~ity to report criminal behavior through the courts in the case of Tarasoff v. Regents of the University of California (1976). The court decision ruled that “When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.” The California Supreme Court later broadened the decision to include reporting to the police as part of the obligation. A recent update by Appelbaum (1981) on the effects of the Tarasoff case on the profession reported that a few lawsuits by patients against their therapist for breach of confidentiality have occurred; however, the reported outcomes are not yet available. Appelbaum cited a recent survey related more to the ethical than the legal side of the reporting dilemma, which shows that therapists are using the Tarasoff “duty to warn” decision to bring potential victims more closely into the therapeutic relationship. The professions of psychiatry and clinical psychology have argued not so much against their personal ethical duty to warn, as against “the future crime exception” of their otherwise broadly recognized legal claim of “privileged communication” in the patient-therapist relationship.
The argument is that if one person is intending a crime against another, that person should be encouraged to consult either a psychiatrist, a priest, or a counselor, all of whose proper function is to counsel the person against committing a crime. If counseling appears to be an unlikely deterent, then the professional is authorized and compelled to report the situation to the police to avert the offense. Some psychiatrists who work with child abusive or neglectful parents suggest a resolution to the reporting ethical dilemma that first counsel’s the parents to “hotline” themselves to the child protective agency and informs them that if they do not, the psychiatrist will take the initiative in reporting (Brandon, 1979). Here is what can best be described as a combined situational and confrontational approach to the resolution of an otherwise potential incident of breaching professional confidentiality. Other professionals working with child abusive or neglectful parents referred by family court have demonstrated the success of a more formal approach to dealing with the reporting dilemma (Popiel, 1980). It is possible for mental health workers to maintain therapeutic relationships with clients by informing them of the limits of confidentiality and by involving them in defining the relationship between the therapist and the referral agency or the family court. And, last in this review, anthropologists have written about the moral judgments they often face in conducting fieldwork observation. The sometimes circumstantial mix of participation and observation can lead the ethnographer into situations of witnessing, if not unwittingly being an accomplice to, a criminal offense (Barnes, 1970). In a similar way, anthropologists face a dilemma in publishing their research. Their accounts of tribal practices, some of which might represent illegal behavior, might not adequately disguise the perpetrators or the informants of the practice. This same problem of disguising accounts has already been noted in cases of reporting results in qualitative evaluation projects (Guba & Lincoln, 1981). Aside from the reporting dilemma, but addressing the issue of a researcher’s intervention in his or her subjects’ personal lives, one anthropologist (Gallin, 1959) described an interesting fieldwork situation where his intervention into the personal problems of the village families he was studying turned out to be beneficial to his overall research plans. He was urged by the villagers to mediate a conflict between two community factions. He speculated that not to have intervened, in order to maintain the objectivity of this data by dispassionate detachment, would have resulted in his expulsion from the village. Ironically, his intervention in community affairs opened up new opportunities for fieldwork observation. This may be an interesting case in point for many qualitative evaluation projects.
Ethical Dilemmas with Family Court Related Clients
49
THE EVALUATOR AS EXPERT WITNESS For the second situation in which a program evaluator may be subpoenaed by family court for either testimony or data records, the project staff discussed the likelihood of such a subpoena being ordered and the dilemmas surrounding different roles one could assume as a witness in a family court proceeding. First, the likelihood of a subpoena’s being issued was considered slim. Second, the results of our literature search and calls to several national organizations concerned with issues of child welfare and family courts were that we could not find any cases where a researcher’s data or testimony was subpoenaed by a family court. Before a discussion of dilemmas about a testimonial role for evaluators, it is important to raise a legal question about federal confidentiality certificates as a shield for a researcher’s request for privileged communication in family court proceedings. It is a question the author believes does not at present have an answer, because it has most likely never been tested in court. As mentioned, the program development and evaluation project in this discussion of ethical dilemmas was awarded a federal confidentiality certificate. This legal document protects the subjects of the research from disclosure of any identifiable research data or information by the project research persons in any federal, state, or local civil, criminal, administrative, legislative, or other proceedings. Thus, in this case, any subpoena from a local family court for testimony of data records regarding a particular client of the agency and the project could be squashed. However, the family court is a special type of court, with its own definition of legal evidence, due process, and adjudication. The statutory laws of family court often contain provisions for the abrogation of privileged communications in child abuse and neglect proceedings. Although recognized in other courts, privileged communications between physician-patient, husband-wife, and attorney-client in court proceedings are disallowed in many family courts by statutory exception (Redden, 1978). Although there is considerable variation across states in the abrogation of different types of privileged communications (National Center on Child Abuse and Neglect, 1978), the basic rationale for abrogation is that the invoking of privileged communications is contrary to the family court objective of making decisions in the “best interests of the child.” The family court believes that it requires the authority to make available all relevant evidence in order to make a decision that represents the best interests of the child. The intent of child abuse and neglect legislation is that the “best interests of the child” take precedence over therapeutic or rehabilitative counseling relationships involving the parents or any perpetrator of the abuse or neglect. The question is whether or not a
federal certificate of confidentiality could legally stand up to the family court abrogation of most claims of privileged communication. This issue is not clear in legal literature. The legal viability issue of confidentiality certificates aside, the possibility of project staff being requested to testify in family court remains. A confidentiality certificate does not permit the holder to refuse to reveal identifiable information if the subject (or legal guardian) consents, in writing, to disclosure. The project staff discussed the possibility of an interviewee, or agency client, requesting or subpoenaing project data or our expert testimony in a particular family court proceeding. This could be a proceeding about an indication of abuse and neglect, a foster care placement review (a decision to return a child to the home), or a termination of parent rights proceeding. The parent in the proceeding would want the evidence or testimony of project staff in support of his or her defense. In a situation involving an alleged incident of abuse and neglect, the testimony might consist of presenting corroborating evidence. However, in proceedings related to foster care review and termination of parent rights, the nature of evidence or testimony could consist of either a direct or indirect form of support for a parent’s legal defense. Each form presents the program developer or evaluator with dilemmas about his or her appropriate role as expert witness. The direct form of supportive testimony or evidence is the evaluator’s assessment of the client’s progress in enhancing his or her parenting skills through the process of receiving the services of a treatment intervention program. That is, has the client acquired adequate parenting skills to allow the child at risk of abuse and neglect to be safely returned home? Although the evaluator may assert that he or she is not qualified to make such individual assessments, or would not claim that program evaluation data collected from clients has sufficient validity or reliability for individual assessments, the evaluation data itself could be subpoenaed, at the client’s request, for the judge’s interpretation. It must be pointed out that hearsay evidence is generally admissable in family court (Caulfield, 1978). For the evaluator employing qualitative data collection methods, this potential use of interview transcripts or field observation notes as hearsay evidence presents interesting questions about methodological procedures of fieldwork recording. Another form of evidence or testimony that a program evaluator could be asked to present in a foster care review or termination of parent rights proceeding is evidence pertaining to the overall effectiveness of a child abuse and neglect treatment program. As mentioned above, a central principle in child abuse and
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PAUL L. JOHNSON
neglect law is that, before a child protection office can petition the family court for termination of parents’ right to custody of their child, it must show “all diligent effort” to provide rehabilitative services to the parents. The constitutional principle of “least restrictive alternative” underlies this principle of diligent effort. The child protection office petitions for courtordered rehabilitative services, makes arrangements for such services as parent education classes, and then monitors the parents’ progress in the rehabilitative program. If the parents do not demonstrate cooperation or progress in their rehabilitative program, then the child protection office has sufficient evidence to petition for a termination of parent rights. From the standpoint of an attorney representing parents in a termination of rights proceeding, evidence or testimony pertaining to the effectiveness of the rehabilitation program might assist in documenting whether or not
the child protection office has demonstrated all diligent effort. From the testimonial standpoint of the evaluator, it raises the classic evaluation question of whether program failure, if that be the case, is more a function of problems in program theory or in program implementation, or whether it can be attributed to client variables (Suchman, 1969). Thus, an evaluator serving as an expert witness, testifying about program effectiveness in a family court proceeding, will have to struggle with the implications of his or her evidence or opinions as they are presented to the court for interpretation. Although this hypothetical situation might appear to be overdrawn, the project staff were partitularly concerned because child protection petitions for termination of parent rights are common in cases of child neglect involving parents with developmental disabilities (Hertz, 1979).
CONCLUSION Two ethical dilemmas are presented: first, the situation of breaching confidentiality in order to intervene in a subject, or agency client’s, abuse or neglect of a child; and, second, the situation of defining the appropriate role for evaluators as expert witnesses in a court of law. Both dilemmas represent types of potential role conflicts that evaluators face in practicing their profession. One approach to this role conflict is to employ methodological tricks of the trade, such as those that can disguise the individual identities of the evaluator’s subjects. However, these techniques generally work best when the evaluator is wearing only one hat. More often, evaluators must play one of several other roles in working with a particular agency or organization. In the situation involving a family court, as described here, the project staff had to simultaneously play the roles of program developer, consultant, evaluator, social work practitioner, and community citizen. We were fortunate that our ethical dilemmas never became legal dilemmas. Neither our data nor our testimony was subpoenaed by the family court as evidence in proceedings regarding a parent in the program development project. As well, the interviewers did not have to face any situations where they wit-
nessed or observed child abusive or neglectful behavior on the part of a parent being interviewed. Although our worst scenarios for a confrontation with the family court never occurred, the potential underlying these two ethical dilemmas significantly influenced project planning and implementation. For the staff, designing technical gimmicks in order to avoid the potential role conflict was not a meaningful strategy. It represented what Eraut (1982) best described as “the value complacency” that is characteristic of many evaluation studies. In one sense, the case described here illustrates the point that there is no substitute for ethical dilemmas in evaluation research or practice other than the hard process of analyzing values and making value commitments. As Howard Becker (1967) aptly put it to sociologists, we must ultimately answer the question Whose side are we on? The different values connected to the enactment of different roles require definition and discussion. Possible role conflicts need to be understood from the standpoint of value conflicts. A thorough value analysis should clarify those compromises, conditions, or limitations that are necessary for serving simultaneously in such roles as program evaluator, consultant, clinician, and citizen.
REFERENCES ANDERSON S. B., & BALL, S. (1978). Theprofession of program evaluutron. San Francisco: Jossey-Bass. APPELBAUM, warn. Hospital
undprucrrce
P. S. (1981). Tarasoff: An update on the duty to and Communiry Psychiatry, 32, 14-15.
BARNES, J. A. (1970). Some ethical problems in modern fieldwork. In W. J. Filstead (Ed.), Quuhfufive merhodology. Chicago: Markham.
BECKER, 239-248.
H. S. (1967). Whose side are we on? SociulProblems,
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BORUCH, R. F., & CECIL, J. S. (1979). Assuring fhe confidenfiu/r/y of socrul reseurch dutu. Philadelphia: University of Pennsylvania Press. BRANDON, role conflicts.
S. (1979). The psychiatrist in child abuse: Child Abuse and Neglect, 3, 401405.
Ethical
and
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Ethical Dilemmas with Family Court Related Clients BRYMER, mas in the quency. In Cambridge,
R. A., & FARRIS, B. (1967). Ethical and political dileminvestigation of deviance: A study of juvenile delinG. Sjoberg (Ed.), Ethics, politics and social research. MA: Schenkman.
CARROLL, J. D., & KNERR, C. R. (1975). A report of the ASPA confidentiality in social science research data project. Pohttcul Science, 27, 258-261. CAUFIELD, B. A. (1978). The legal aspects ofprotective services for abused and neglected children. Washington, DC: U.S. Government Printing Office. CRONBACH, L. J. (1980). Toward reform ofprogrum evaluatton. San Francisco: Jossey-Bass. ERAUT, M. (1982). Handling values issues. In E. R. House, S. Mathison, J. A. Pearsol, Kc H. Preskill (Eds.), Evuluatron studies review annual (Vol. 7, pp. 271-286) Beverly Hills, CA: Sage. EVALUATION RESEARCH SOCIETY. (198 1). Standards for program evaluation. Potomac, MD: Author. GALLIN, B. (1959). A case for intervention Orgonrzation, IS, 140-144. GUBA, E. G., &LINCOLN, Francisco: Jossey-Bass.
in the field. Human
Y. S. (1981). Effective evuluation. San
HERTZ, R. A. (1979). Retarded parents in neglect proceedings: The erroneous assumption of parental inadequacy. Stanford Law Revrew, 31, 785-805. NATIONAL CENTER ON CHILD ABUSE AND NEGLECT. (1978). Child abuse and neglect: State reporting laws. Washington, DC: U.S. Government Printing Office. NEJELSKI,
P., & LERMAN, L. M. (1971). A researcher-subject
testimonial privilege: What to do before the subpoena Wisconsrn Low Revtew, 1971, 1085-l 148.
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POPIEL, D. J. (1980). Confidentiality in the context of court referrals to mental health professionals. American Journal of Orthopsychiatry, 50, 678-685. REDDEN, W. C. (1978). The federal and state response to the problem of child maltreatment in America: A survey of the reporting statutes. Nova Law Journal, 2, 13-74. ROSENHEIM, M. K. (1965). Privilege, confidentiality, venile offenders. Wayne Law Review, 1I, 660-675.
and ju-
ROSSI, P. H., & LYALL, K. (1976). Reforming pubbc welfare: A crrtique of the negative income tax experiment. New York: Russell Sage Foundation. SHEINFELD, S. N., & LORD, G. L. (1981). The ethics of evaluation researchers. Evaluutron Review, 5, 377-391. SIEBER, J. E. (1980). Being ethical: Professional and personal decisions in program evaluation. New Directions for Program Evaluation, 7, 51-61. SUCHMAN, E. A. (1969). Evaluating educational symposium. Urban Review, 3, 16. TARASOFF v. REGENTS OF THE UNIVERSITY FORNIA. (1976). Cahfornia Reporter, 131, 14.
programs:
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U.S. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE. (1979). Protection of identity-research subjects, (42 CFR Part 2a). Federal Register, 44, (No. 66) 20382-20387. WOLFGANG, M. E. (1981). Confidentiality in criminological research and other ethical issues. Journal of Crtmmol LOW and Crrminology, 72, 345-361.
Evaluation and Program Planning, Vol. 8, pp. 45-51, 1985 Printed in the USA. All rights reserved.
ETHICAL DILEMMAS IN EVALUATING PROGRAMS WITH FAMILY COURT RELATED CLIENTS
PAUL L. JOHNSON Independent
Consultant,
Washington,
DC
ABSTRACT Two ethical dilemmas are discussed; breaching client confidentiality in order to intervene in the client’s illegal behavior, and defining the role of evaluator as expert witness. The evaluation context concerns a combined program development and evaluation project with clients involved in famiIy court proceedings for child abuse or neglect. Different perspectives, approaches, and experiences in resolving each dilemma are reviewed. The conclusion argues that approaches to ethical dilemmas in evaluation projects must go beyond techniques to dtkguise data, to include an assessment of the values and value commitments connected to the different roles an evaluator must perform.
situations in which an evaluator must break a confidentiality agreement with an agency’s client in order to report the client’s child abusive or neglectful behavior; and, the second one concerns questions about the appropriate role of evaluators as expert witness, subpoenaed or otherwise, in a family court proceeding involving an agency client. The discussion of each dilemma focuses on both the legal and moral arguments for and against intervention in the personal life and legal affairs of agency clients connected to an evaluation project. These two dilemmas are not new to evaluators. As the survey conducted by Sheinfeld and Lord (1981) pointed out, the two most important ethical issues rated by evaluators were: knowledge and adherence to legal and human rights concerns, and protection of the confidentiality of individuals. The paramount importance of these two issues for evaluators may be partly understood from evaluation history, from such situations as the National Income Transfer Experiment, in which local prosecutors successfully subpoenaed individually identifiable data from the evaluators (Rossi & Lyall, 1976). Cronbach (1980) reported a more recent occurrence involving an evaluation of a high school drug abuse intervention program. Other surveys have shown that subpoenas for data are not unique
The evaluation profession has paid considerable attention to the ethics of its practice. Discussions of ethical dilemmas in evaluation research have tried to bring out the responsibilities that evaluators should assume in formulating projects, in carrying out data collection and analysis, and in disseminating results (Anderson & Ball, 1978). The development of evaluation professional standards (Evaluation Research Society, 1981) has more formally established a definition of these responsibilities. Although the ethical dilemmas of evaluators largely appear to stem from questions of appropriate methodology in such areas as informed consent, deception, privacy, and confidentiality, these dilemmas are better understood as a function of the multiple roles the person as evaluator often performs (Sieber, 1980). It is rarely possible for evaluators to segregate their role from that of others, such as consultant, manager, clinician, teacher, or, as in the more general case, of citizen or humanitarian. These separately prescribed role responsibilities inevitably overlap; and thus, when discrepancies occur, role conflicts often surface in the expressed form of ethical dilemmas. This paper discusses two ethical dilemmas that face evaluators working in human service agencies with clients who are referrals of a community family court and child welfare system. The first dilemma concerns
This paper is supported by the Administration for Children, Youth and Families. U.S. Department of Health and Human Services. Grant No. 90 cw 661/01. Requests for reprints should be sent to Paul L. Johnson, 3315 Wisconsin Avenue, NW, Washington, DC 20009.
45
PAUL
46
L. JOHNSON
to evaluators, but are common, and increasing in numbers, for all social science researchers (Carroll & Knerr, 1975). Social scientists have responded in two ways to the issue of court subpoenas. The first suggestion is to avoid subpoenas by employing procedures to mask the identity of all evaluation data collected on individuals (Boruch & Cecil, 1979). The second is to advocate for legislation on statutory privileged communication for researcher-subject relationships, or “shield laws,” which can protect all researchers in a given subject area from compulsory disclosure of information. One CONTEXTUAL
BACKGROUND
The evaluation context for this discussion of ethical dilemmas is a preventive child abuse and neglect treatment program. The particular program involves a private, nonprofit human service agency with a purchase of service agreement with the county child protection office to provide parent education classes to parents indicated for child abuse or neglect. If the abuse or neglect is acute, and the child’s health is in danger, the child may be placed in a foster home; otherwise the child remains in the home. In cases involving foster care, the child protection office has custody of the children, either by the parents’ voluntary consent or by a court order for placement of the children in foster care. To regain custody of their children, the parents must demonstrate to the child protection office and the judge of family court that they are now capable of caring for their children adequately. The child protection office is mandated to show “all diligent effort” to help the parents acquire parenting skills to adequately care for their children. To this end, the child protection office makes a referral of the parents to an agency providing parenting education. At 6-month intervals, the child’s foster care placement is reviewed in family court, and a decision is made about the parents’ present capacity to care for the child and whether or not the child should be returned home. In these family court proceedings the child protection officials provide the judge with assessments of the parents’ progress in resolving the original problem of inadequate parental care. As well, the staff from the private human service agency who work directly with the parents are often subpoenaed to testify about the parents’ progress. This agency’s confidential case records are often made available to the child protection office and the family court, with the clients’ written consent. In cases where it is determined that parents are not cooperating with the private agency providing the parent education, the child protection office can petition the family court judge for a termination of parents’ rights. In other cases, where parents are cooperating with the private agency, generally by
form of this statutory privilege is the confidentiality certificate. It is granted to individual research projects upon application to and review by a federal agency (Nejelski & Lerman, 1971). Although both the methodological and legislative responses to the subpoena issue have made an invaluable contribution to evaluators and their capability to handle ethical dilemmas of confidentiality, this paper will argue that these responses are insufficient for situations involving qualitative-type evaluation in agencies serving clients who are family court referrals.
OF ETHICAL
DILEMMAS
showing good attendance, but are not showing improvement in parenting skills, the family court usually authorizes continuation of the childrens’ placement in foster care and the parents’ court-ordered referral for parent education services. The private human service agency just described was the focus of a 2-year program development and evaluation project that the author directed beginning in 1981. The project was supported with federal research monies to (a) conduct an assessment of the parent education needs of parents with developmental disabilities, (b) assist an agency in the development of a special parent education program for these parents, and (c) evaluate the impact of such a program. The project staff, consisting of the author and two research associates, planned a 2-year program development and evaluation project with the professional staff of the private human service agency. We agreed that the role of the project staff was to conduct a formative evaluation of the group dynamics taking place in three parent groups led by the agency’s professional staff. The project staff would observe the parent groups and provide weekly feedback to the agency group leaders on how group dynamics and planned activities were working to achieve the parent education goals. In a consultative role, the project staff would work each week with the group leaders to plan, design, and implement innovative group activities adapted to the learning styles of parents with developmental disabilities. We knew beforehand that these parents had special needs for training in parenting skills because of observable learning problems and poor self-esteem, and that the poor socioeconomic conditions of their family life resulted in chronic crisis situations that often made it difficult to hold regular parent education classes. To better understand the special education needs of these parents, the project staff made arrangements with the agency to interview the parents about their parenting problems, their feelings toward their children, and their evaluation of the parent group activities.
Ethical Dilemmas with Family Court Related Clients
When the project staff first outlined the scope and tasks of our program development project with the professional staff of the private human service agency, a major issue discussed was our project’s relationship to the county child protection office and the family court. It was agreed that the program development project staff would not involve themselves in any way with the clients’ relationships to the child protection office or the family court. The informed-consent form for the clients’ participation in the project stated that (a) participation in the project was not obligated on the basis of their court-ordered referral to the agency for parent education services, (b) refusal to participate would not affect their relationship with family court, and (c) anonymity of their names in project reports would be assured. The possibility that the project’s parent group observation notes, parent interview tapes or transcripts, and staff testimony could be subpoenaed by the family court was also discussed. We thought that a subpoena
CONFIDENTIALITY
47
was unlikely, but to be safe we decided to apply for a federal certificate of confidentiality (U.S. Department of Health, Education and Welfare, 1979). We believe that our being a federally funded project that already had a university review board approval was helpful in our obtaining a confidentiality certificate from the National Institute of Mental Health. Several months into the implementation of the project, we, the project staff, found ourselves continuing to discuss ethical dilemmas connected with client interview procedures. The discussions centered around the question of whether it was right or wrong to intervene in behalf of the parent or the child as clients of the agency. Two possible situations of questionable intervention were identified: (a) when a project interviewer is witness to an incident, or indicators, of child abuse and neglect in a client’s home and; (b) when a project staff member is subpoenaed by family court to testify or turn over data records on a specific parent of the agency.
AND REPORTING ILLEGAL BEHAVIOR
In the first situation, the project staff, whose task was to interview the parents in the home, often with the children present, were concerned about what to do if they witnessed an incident of child physical abuse or, more likely, if they discovered indicators of child neglect. If the incidence was particularly severe, or the indicators especially clear, was it ethically justifiable to do nothing because it was not part of their role as evaluators or program developers? Was it best to inform the human service agency professional staff and let them decide to investigate it at a later point? Would that action breach the agreement of confidentiality? On the other hand, would intervention by reporting, or “hotlining,” the incident or indicators of abuse or neglect to the child welfare agency create repercussions that would jeopardize continuation of the entire program development and evaluation project? Should the interviewer try to counsel the parents to report the incident themselves? Should the interviewer assume he or she had adequate counseling skills? Should the interviewer try to forestall the witnessing of an incident or an indicator by warning the parent, at the time of obtaining consent, that the interviewer as a citizen had an obligation to report? However, would such a warning possibly jeopardize the parents’ consent to the interview? For guidance in examining these questions weighing both ethical and tactical research decisions, we found several parallel situations in which other professionals have faced similar questions. Criminologists, delinquent youth workers, social workers, psychiatrists, psychotherapists and anthropologists have ail addressed the issue of reporting crimes or illegal behav-
ior, and they have come up with different and interesting approaches to a definition of their appropriate roles. Criminologists have been concerned about incriminating themselves by withholding information about criminal offenses committed by the subjects of their research (Wolfgang, 1981). By not reporting a criminal offense, a criminologist might face prosecution as an “accessory after the fact.” The criminologist might be legally committing the offense of misprision of a felony. Although this offense is obsolete in many jurisdictions, it is often used by the police in attempts to obtain cooperation from citizens in gathering evidence for criminal convictions (Rosenheim, 1965). Aside from the legal question of breaching subject confidentiality to report a crime, Wolfgang asked whether or not the criminologist has a moral responsibility to report. In which situations can it be said that reporting would be beneficial to the criminal offender? In other situations, would the potential injury to the offender (prosecution, conviction, and imprisonment) be outweighed by the benefit to the safety of others and the well-being of society? Regardless, his advice is “if any researcher doubts the moral obligation to maintain confidentiality, he should abstain from this kind of research” (Wolfgang, 1981, p. 52). Although probably sound advice, this “heat-in-the-kitchen” approach to an ethical question does not help the unsuspecting program evaluator. Juvenile delinquent youth workers often face the ethical dilemma of reporting criminal activity. They must assess the relative benefit of reporting to the police a particular youth, or the whole gang, compared
48
PAUL L. JOHNSON
with the risk imposed on other persons, friends, relatives, or community residents who might be victimized by the youth or the gang. The youth worker in the context of making “progress” with a gang to reduce delinquent behavior will often be confronted with the backslider type of youth, who slips back into delinquent behavior (Brymer & Farris, 1967). Should the worker report the individual gang member’s criminal activity and most likely jeopardize the larger progress with the whole gang? Speaking to this dilemma, Rosenheim (1965) offered one argument favorable to the decision to report, which also raises an interesting point about the reporting dilemma. She said, “The underlying objectives of the street work agency and its professional staff are law compliance and social adjustment among aggressive youth, and those aims must, it seems to me, override any limited therapeutic benefits which maintaining confidences might confer” (p, 672). Regardless of whether or not one agrees that these should be the objectives of street work agencies, or that law compliance overrides therapy, the point is that professionals, evaluators or otherwise, must consider the accountability of their activities to the objectives of the program or organization they intend to assist. It is contradictory for a professional to employ methods or procedures in working with an organization that are directly contrary to the organization’s objectives; in other words, consciously not making it a policy to report child abuse or neglect in a preventive child abuse and neglect treatment program. Psychiatrists and psychotherapists have also directly faced this issue of breaching confidenti~ity to report criminal behavior through the courts in the case of Tarasoff v. Regents of the University of California (1976). The court decision ruled that “When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.” The California Supreme Court later broadened the decision to include reporting to the police as part of the obligation. A recent update by Appelbaum (1981) on the effects of the Tarasoff case on the profession reported that a few lawsuits by patients against their therapist for breach of confidentiality have occurred; however, the reported outcomes are not yet available. Appelbaum cited a recent survey related more to the ethical than the legal side of the reporting dilemma, which shows that therapists are using the Tarasoff “duty to warn” decision to bring potential victims more closely into the therapeutic relationship. The professions of psychiatry and clinical psychology have argued not so much against their personal ethical duty to warn, as against “the future crime exception” of their otherwise broadly recognized legal claim of “privileged communication” in the patient-therapist relationship.
The argument is that if one person is intending a crime against another, that person should be encouraged to consult either a psychiatrist, a priest, or a counselor, all of whose proper function is to counsel the person against committing a crime. If counseling appears to be an unlikely deterent, then the professional is authorized and compelled to report the situation to the police to avert the offense. Some psychiatrists who work with child abusive or neglectful parents suggest a resolution to the reporting ethical dilemma that first counsel’s the parents to “hotline” themselves to the child protective agency and informs them that if they do not, the psychiatrist will take the initiative in reporting (Brandon, 1979). Here is what can best be described as a combined situational and confrontational approach to the resolution of an otherwise potential incident of breaching professional confidentiality. Other professionals working with child abusive or neglectful parents referred by family court have demonstrated the success of a more formal approach to dealing with the reporting dilemma (Popiel, 1980). It is possible for mental health workers to maintain therapeutic relationships with clients by informing them of the limits of confidentiality and by involving them in defining the relationship between the therapist and the referral agency or the family court. And, last in this review, anthropologists have written about the moral judgments they often face in conducting fieldwork observation. The sometimes circumstantial mix of participation and observation can lead the ethnographer into situations of witnessing, if not unwittingly being an accomplice to, a criminal offense (Barnes, 1970). In a similar way, anthropologists face a dilemma in publishing their research. Their accounts of tribal practices, some of which might represent illegal behavior, might not adequately disguise the perpetrators or the informants of the practice. This same problem of disguising accounts has already been noted in cases of reporting results in qualitative evaluation projects (Guba & Lincoln, 1981). Aside from the reporting dilemma, but addressing the issue of a researcher’s intervention in his or her subjects’ personal lives, one anthropologist (Gallin, 1959) described an interesting fieldwork situation where his intervention into the personal problems of the village families he was studying turned out to be beneficial to his overall research plans. He was urged by the villagers to mediate a conflict between two community factions. He speculated that not to have intervened, in order to maintain the objectivity of this data by dispassionate detachment, would have resulted in his expulsion from the village. Ironically, his intervention in community affairs opened up new opportunities for fieldwork observation. This may be an interesting case in point for many qualitative evaluation projects.
Ethical Dilemmas with Family Court Related Clients
49
THE EVALUATOR AS EXPERT WITNESS For the second situation in which a program evaluator may be subpoenaed by family court for either testimony or data records, the project staff discussed the likelihood of such a subpoena being ordered and the dilemmas surrounding different roles one could assume as a witness in a family court proceeding. First, the likelihood of a subpoena’s being issued was considered slim. Second, the results of our literature search and calls to several national organizations concerned with issues of child welfare and family courts were that we could not find any cases where a researcher’s data or testimony was subpoenaed by a family court. Before a discussion of dilemmas about a testimonial role for evaluators, it is important to raise a legal question about federal confidentiality certificates as a shield for a researcher’s request for privileged communication in family court proceedings. It is a question the author believes does not at present have an answer, because it has most likely never been tested in court. As mentioned, the program development and evaluation project in this discussion of ethical dilemmas was awarded a federal confidentiality certificate. This legal document protects the subjects of the research from disclosure of any identifiable research data or information by the project research persons in any federal, state, or local civil, criminal, administrative, legislative, or other proceedings. Thus, in this case, any subpoena from a local family court for testimony of data records regarding a particular client of the agency and the project could be squashed. However, the family court is a special type of court, with its own definition of legal evidence, due process, and adjudication. The statutory laws of family court often contain provisions for the abrogation of privileged communications in child abuse and neglect proceedings. Although recognized in other courts, privileged communications between physician-patient, husband-wife, and attorney-client in court proceedings are disallowed in many family courts by statutory exception (Redden, 1978). Although there is considerable variation across states in the abrogation of different types of privileged communications (National Center on Child Abuse and Neglect, 1978), the basic rationale for abrogation is that the invoking of privileged communications is contrary to the family court objective of making decisions in the “best interests of the child.” The family court believes that it requires the authority to make available all relevant evidence in order to make a decision that represents the best interests of the child. The intent of child abuse and neglect legislation is that the “best interests of the child” take precedence over therapeutic or rehabilitative counseling relationships involving the parents or any perpetrator of the abuse or neglect. The question is whether or not a
federal certificate of confidentiality could legally stand up to the family court abrogation of most claims of privileged communication. This issue is not clear in legal literature. The legal viability issue of confidentiality certificates aside, the possibility of project staff being requested to testify in family court remains. A confidentiality certificate does not permit the holder to refuse to reveal identifiable information if the subject (or legal guardian) consents, in writing, to disclosure. The project staff discussed the possibility of an interviewee, or agency client, requesting or subpoenaing project data or our expert testimony in a particular family court proceeding. This could be a proceeding about an indication of abuse and neglect, a foster care placement review (a decision to return a child to the home), or a termination of parent rights proceeding. The parent in the proceeding would want the evidence or testimony of project staff in support of his or her defense. In a situation involving an alleged incident of abuse and neglect, the testimony might consist of presenting corroborating evidence. However, in proceedings related to foster care review and termination of parent rights, the nature of evidence or testimony could consist of either a direct or indirect form of support for a parent’s legal defense. Each form presents the program developer or evaluator with dilemmas about his or her appropriate role as expert witness. The direct form of supportive testimony or evidence is the evaluator’s assessment of the client’s progress in enhancing his or her parenting skills through the process of receiving the services of a treatment intervention program. That is, has the client acquired adequate parenting skills to allow the child at risk of abuse and neglect to be safely returned home? Although the evaluator may assert that he or she is not qualified to make such individual assessments, or would not claim that program evaluation data collected from clients has sufficient validity or reliability for individual assessments, the evaluation data itself could be subpoenaed, at the client’s request, for the judge’s interpretation. It must be pointed out that hearsay evidence is generally admissable in family court (Caulfield, 1978). For the evaluator employing qualitative data collection methods, this potential use of interview transcripts or field observation notes as hearsay evidence presents interesting questions about methodological procedures of fieldwork recording. Another form of evidence or testimony that a program evaluator could be asked to present in a foster care review or termination of parent rights proceeding is evidence pertaining to the overall effectiveness of a child abuse and neglect treatment program. As mentioned above, a central principle in child abuse and
50
PAUL L. JOHNSON
neglect law is that, before a child protection office can petition the family court for termination of parents’ right to custody of their child, it must show “all diligent effort” to provide rehabilitative services to the parents. The constitutional principle of “least restrictive alternative” underlies this principle of diligent effort. The child protection office petitions for courtordered rehabilitative services, makes arrangements for such services as parent education classes, and then monitors the parents’ progress in the rehabilitative program. If the parents do not demonstrate cooperation or progress in their rehabilitative program, then the child protection office has sufficient evidence to petition for a termination of parent rights. From the standpoint of an attorney representing parents in a termination of rights proceeding, evidence or testimony pertaining to the effectiveness of the rehabilitation program might assist in documenting whether or not
the child protection office has demonstrated all diligent effort. From the testimonial standpoint of the evaluator, it raises the classic evaluation question of whether program failure, if that be the case, is more a function of problems in program theory or in program implementation, or whether it can be attributed to client variables (Suchman, 1969). Thus, an evaluator serving as an expert witness, testifying about program effectiveness in a family court proceeding, will have to struggle with the implications of his or her evidence or opinions as they are presented to the court for interpretation. Although this hypothetical situation might appear to be overdrawn, the project staff were partitularly concerned because child protection petitions for termination of parent rights are common in cases of child neglect involving parents with developmental disabilities (Hertz, 1979).
CONCLUSION Two ethical dilemmas are presented: first, the situation of breaching confidentiality in order to intervene in a subject, or agency client’s, abuse or neglect of a child; and, second, the situation of defining the appropriate role for evaluators as expert witnesses in a court of law. Both dilemmas represent types of potential role conflicts that evaluators face in practicing their profession. One approach to this role conflict is to employ methodological tricks of the trade, such as those that can disguise the individual identities of the evaluator’s subjects. However, these techniques generally work best when the evaluator is wearing only one hat. More often, evaluators must play one of several other roles in working with a particular agency or organization. In the situation involving a family court, as described here, the project staff had to simultaneously play the roles of program developer, consultant, evaluator, social work practitioner, and community citizen. We were fortunate that our ethical dilemmas never became legal dilemmas. Neither our data nor our testimony was subpoenaed by the family court as evidence in proceedings regarding a parent in the program development project. As well, the interviewers did not have to face any situations where they wit-
nessed or observed child abusive or neglectful behavior on the part of a parent being interviewed. Although our worst scenarios for a confrontation with the family court never occurred, the potential underlying these two ethical dilemmas significantly influenced project planning and implementation. For the staff, designing technical gimmicks in order to avoid the potential role conflict was not a meaningful strategy. It represented what Eraut (1982) best described as “the value complacency” that is characteristic of many evaluation studies. In one sense, the case described here illustrates the point that there is no substitute for ethical dilemmas in evaluation research or practice other than the hard process of analyzing values and making value commitments. As Howard Becker (1967) aptly put it to sociologists, we must ultimately answer the question Whose side are we on? The different values connected to the enactment of different roles require definition and discussion. Possible role conflicts need to be understood from the standpoint of value conflicts. A thorough value analysis should clarify those compromises, conditions, or limitations that are necessary for serving simultaneously in such roles as program evaluator, consultant, clinician, and citizen.
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