Laura Groshong, LICSW, Director, Policy and Practice

Legal and Ethical Issues Raised by “Trust and Consequences”

The Washington Post published an article on February 15, 2015, called "Trust and Consequences", written by Hannah Drier. It is an excellent description of how immigrant minors are being seen by therapists, some of whom may be LCSWs, and then have their confidentiality violated while in detention or after leaving detention.  You can find it at https://www.washingtonpost.com/graphics/2020/national/immigration-therapy-reports-ice/?utm_campaign=wp_evening_edition&utm_medium=email&utm_source=newsletter&wpisrc=nl_evening. 

As with any potential ethical violation,  it is prudent to start with the Code of Ethics (CSWA Code  of Ethics, 2016):  “Confidentiality b) Clinical social workers must know and observe both legal and professional standards for maintaining the privacy of records, and mandatory reporting obligations. Mandatory reporting obligations may include, but are not limited to: the reporting of the abuse or neglect of children or of vulnerable adults; the duty to take steps to protect or warn a third party who may be endangered by the client(s); the duty to protect a client from self-harm; and, the duty to report the misconduct or impairment of another professional. Additional limits to confidentiality may occur because of parental access to the records of a minor, the access of legal guardians to the records of some adults, access by the courts to mandated reports, subpoenas and court orders, and access by third party payers to information for the purpose of treatment authorization or audit. When confidential information is released to a third party, the clinical social worker will ensure that the information divulged is limited to the minimum amount required to accomplish the purpose for which the release is being made."

The underline is the relevant section because when the Office of Refugee Resettlement (ORR) takes custody of immigrant children they become in loco parentis or the guardian of the minors. This is the way that the right to privacy is circumvented by ORR.  The article was about a minor who was taken into custody at 16 and stayed in custody for three years.  In some states, the minor would have the right to decide to whom his personal information is disclosed at the age of 13 or above.  In Texas where the minor was kept, there are very specific reasons for a minor consenting to treatment and nothing on whether the minor has the right to keep his record private:

Under the following circumstances, a minor may consent to his or her own medical, dental, psychological, and surgical treatment, including if he or she is one of the following:

• At least 16 years old, living apart from parents, conservator, or guardian, and managing own financial affairs.
• Consenting to examination and treatment for drug or chemical addiction or dependency, or any other directly related condition.
• Seeking counseling for chemical dependency or addiction, suicide prevention, or sexual, physical, or emotional abuse. (Texas Family Code § 32.003)

This heart-breaking article shows how a minor who believed that the therapist he saw would keep his information confidential was emotionally harmed when this did not happen.  CSWA will be writing a position paper on all the implications of this article for us as mental health professionals.

Action Items

In the meantime, CSWA recommends sending the following message to your members of Congress.  You can find their email addresses or contact information at https://www.congress.gov/members?searchResultViewType=expanded&KWICView=false . A suggested message is as follows: “I am a constituent and a member of the Clinical Social Work Association.  Please take action to end the way that immigrant minors being held in detention have no right to confidentiality when seeing a clinical social worker for psychotherapy.  This fundamental ethical principle of psychotherapy is currently being violated by the Office of Refugee Resettlement according to the Washington Post (see article at https://www.washingtonpost.com/graphics/2020/national/immigration-therapy-reports-ice/?utm_campaign=wp_evening_edition&utm_medium=email&utm_source=newsletter&wpisrc=nl_evening  ). The process of psychotherapy becomes potentially traumatic without the right to confidentially. I would be happy to discuss this with you further.”

Please feel free to use your own language in this message.  Contact me if you have questions or need more information.  As always, let me know when you have sent your messages. Thank you for your attention to this important matter.

There is also a petition that is being sponsored by the Psychotherapy Action Network (PsiAN), an excellent group that CSWA has been working with for several years. Anyone who is interested in signing this petition can do so at https://www.thepetitionsite.com/379/862/396/tell-orr-and-ice-stop-using-psychotherapy-notes-to-betray-and-endanger-children/

Laura Groshong is the Director, Policy and Practice for the Clinical Social Work Association.