Privacy, Confidentiality, Autonomy

Privacy, Confidentiality, Autonomy

Balancing client rights and best interests in victim advocacy

Privacy refers to that which is held secret; not publicly expressed ; a state of being free from intrusion or disturbance in one’s affairsPrivacy is individual in nature

What is the meaning of

privacy

?

Tied to our sense of personhoodBound up with feelings of prideshame fearboundariesdignityrespect

Why do we value privacy?

1. Reliance on another’s discretion2. Marked by intimacy or a willingness to confide

What is the meaning of

confidentiality?

Confiding in another requires trustKeeping a confidence signals trustworthiness of the receiver and respect and care for the one confiding

Why do we value confidentiality?

The conception of human beings as autonomous arose in the 1700sThe notion of human autonomy is based upon our ability to reason, i.e., think for ourselvesCapacity for rational thinking (i.e., the ability to reason) is essential to the meaning autonomy

What is

autonomy?

Definition of self-determination: Determining one’s own fate or course of action without compulsionSelf-determination reflects an person’s preferences, goals, values concernsSelf-determination may be expressed not only through rational thinking but through our verbally and non-verbally conduct

Autonomy and Self-Determination

The ability to weigh interests such as privacy and confidentiality against each other and against other interests such as physical and/or emotional health and safety, the strength and commitment to personal relationships, the well-being of other family members, and to arrive at a reasoned basis for choosing a course of action, reflects the exercise of autonomy.

The Relationship of Autonomy, Privacy, Confidentiality

When a client has the capacity to reason, i.e., to exercise autonomy, law and ethics both favor deference to the client’s decision(s)

The Ethical and Legal Significance of Capacity

Defining “Capacity”

What is it?

“Sufficient understanding and memory to comprehend in a general way the situation in which one finds oneself and the nature, purpose, and consequence of any act or transaction into which one proposes to enter “ – Merriam-Webster Dictionary

Who determines whether an individual has capacity?

Why is an understanding of capacity important?

Considering capacity

Capacity is the

presumption

Lack of capacity is a

conclusion

The advocate’s role is to advocate for capacity

Two Views of Capacity

Functional View (Process Based)

Substantive View(Outcomes Based)

Legal capacity vs. Clinical capacity

Has capacity

Lacks capacity

Has capacity

Diminished capacityLacks capacity

Supporting Client Capacity: The Advocate’s Critical Role

Assure that situation supports (rather than undermines) client’s capacity

Advocate for client capacity

Mandatory reporting of elder abuseThreat of harm to another

When disclosing a confidence is required – 2 examples

Susan Mitchell is on the staff of a victim advocate organization. She lives next door to Molly Kramer, a 76 year old woman with physical frailties that make it difficult for her to do her household chores or to get out to do her shopping . Susan looks in on Molly from time to time to help her by running errands and straightening up. Recently she has noticed bruises on Molly’s arm and face. Molly says she fell off a step ladder. However, Sally knows that Molly’s son has a drug problem and that a PFA order had been taken out against him by the mother of his son so he has recently returned to live with Molly. Susan tries to question Molly about the bruises but Molly becomes tearful and denies there’s a problem and pleads “I love my son. Please don’t cause any problems for us.” Must Susan report the suspected abuse to Protective Services?

Poll - Case vignette #1

Sally Miner is a social worker employed by a home care agency. She visits an agency client, Mrs. Kramer, in her home from time to time to coordinate services. On her most recent visit Sally notices bruises on Mrs. Kramer’s arm and face. Mrs. Kramer says she fell off a step ladder. However, Sally notices that Mrs. Kramer’s son seems to have moved into the house and Mrs. Kramer seems more anxious than on past visits, more fearful and confused and reluctant to talk with Sally. When Sally asks if her son is hurting her Mrs. Kramer becomes tearful but denies there’s a problem, insists she fell, and pleads “I love my son. Please don’t cause any problems for us.” Must Sally report the suspected abuse to protective services?

Poll – Case Vignette #2

§ 15.151. General requirements.(a) Administrators or employees [of a facility] who have reasonable cause to suspect that a recipient is a victim of abuse shall: (1) Immediately make an oral report to the agency. (2) Make a written report to the agency within 48 hours. (b) Employees making oral or written reports shall immediately notify the administrator or designee of these reports. (c) Agencies shall notify administrators, or their designees, and State agencies with facility licensing responsibilities immediately when written reports of abuse are received. (d) Employees required to report abuse may request administrators or their designees to make, or assist the employees to make, oral or written reports

Act 13 – Mandated Reporting Requirements

Facility—Any of the following: (i) A domiciliary care home as defined in sections 2201-A—2212-A of The Administrative Code of 1929 (71 P. S. § § 581-1—581-12). (ii) A home health care agency. (iii) A long-term care nursing facility as defined in the Health Care Facilities Act (35 P. S. § § 448.101—448.904b). (iv) An older adult daily living center as defined in the Older Adult Daily Living Centers Licensing Act (62 P. S. § § 1511.1—1511.22). (v) A personal care home as defined in section 1001 of the Public Welfare Code (62 P. S. § 1001).

Act 13 – Mandatory Reporting – Definition of Facility

Employee—Includes the following: (i) An individual who is employed by a facility. (ii) A facility contract employee who has direct contact with residents or unsupervised access to their living quarters. (iii) An individual who is employed by, or who enters into a contractual relationship with, or who establishes any other agreement or arrangement with a home health care agency to provide care to a care-dependent person for a fee, stipend or monetary consideration of any kind in the person’s place of residence. (iv) A student doing an internship or clinical rotation, or any other individual, who has been granted access to the facility to perform a clinical service for a fee. (v) An individual, employed by an entity which supplies, arranges for, or refers personnel to provide care to care-dependent persons, who is employed to provide care to care-dependent persons in facilities or their places of residence.

Act 13 – Mandated Reporting

Who Is an “Employee”?

§ 15.151. General requirements.(a) Administrators or employees who have reasonable cause to suspect that a recipient is a victim of abuse shall: (1) Immediately make an oral report to the agency. (2) Make a written report to the agency within 48 hours. (b) Employees making oral or written reports shall immediately notify the administrator or designee of these reports. (c) Agencies shall notify administrators, or their designees, and State agencies with facility licensing responsibilities immediately when written reports of abuse are received. (d) Employees required to report abuse may request administrators or their designees to make, or assist the employees to make, oral or written reports

Act 13 – Mandated Reporting Requirements

Mandatory Reporting – Making a Report

If the employee or administrator believes the abuse involves sexual abuse, serious physical injury, serious bodily injury or suspicious death, s/he is also required to make an oral report to law enforcement and to the PDA in addition to the oral and written report to the AAA.

Within 48 hours of receiving a report of abuse as above, the AAA shall forward a written report to the PDA.

Penalties for Failure to Comply with Act 13

Administrative penalty:

L

icensing agency for the facility has jurisdiction to determine any administrative violation and may issue a civil penalty of up to $2500.

Criminal penalty:

U

p to one year imprisonment

Pennsylvania Older Adult Protective Services

Case Management

Flow

Victim is over 60Finding of abuseUnable to care for selfLacking responsible caregiverWilling to accept protective services

Substantiation of Elder Abuse

The Supreme Court of California held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. The original 1974 decision mandated warning the threatened individual, but a 1976 rehearing of the case by the California Supreme Court called for a "duty to protect" the intended victim.

Duty to Warn:

Tarasoff

v. Regents of the University of California

TruthfulnessTransparencyTrust

How Can an Advocate Reconcile Obligations