Eye on Ethics
Ethics Consultation: The Wisdom of Crowds
Recently, I received a telephone call from a social worker employed in a large shelter for people who are homeless. He explained that on a typical day, the agency provides crisis intervention services and shelter for hundreds of clients. Significant numbers of the clients have criminal records or are suspects or persons of interest in criminal investigations.
According to the caller, there is always an off-duty police officer at the agency to maintain order. The social worker told me these police officers routinely distribute to staffers a list of people in that large city for whom there are outstanding arrest warrants; the police expect that program staffers will alert them when a client whose name is on the list appears at the shelter. The social worker wanted to consult with me about relevant ethical standards, particularly with regard to social workers’ management of clients’ confidential information.
Vox Populi: The Wisdom of Crowds
The wisdom of crowds is a concept first discovered by the British statistician Francis Galton in 1906. Galton was at a country fair where about 800 people had tried to guess the weight of a dead ox in a competition. After the prize was awarded, he collected all the guesses so he could figure out how far off the mark the average guess was. It turned out that most of the guesses were much too high or way too low. But Galton made a remarkable discovery when he averaged the guesses together: The dead ox weighed 1,198 lbs, while the crowd’s average: 1,197 lbs.
For social work’s purposes, the crowd-wisdom concept should remind us that while a single practitioner may have difficulty accurately assessing an ambiguous situation, the “picture” formed by aggregating diverse views can be productive and often (although not always) on the mark. This is especially true when murky ethical dilemmas arise. In these instances, it is common for a diverse group of practitioners to view the same set of facts differently and reach different conclusions, at least initially.
I suggested we convene a meeting among key staffers to engage in peer consultation. I anticipated some disagreement among participants and viewed this as an opportunity to model the concept of ethics consultation and demonstrate the rich wisdom that often emerges when a group of thoughtful professionals share their insights.
Once we convened, I encouraged the group to identify the core ethical issues and concepts germane to the dilemma. We quickly listed challenges related to client trust, self-determination, informed consent, privacy, confidentiality, professional boundaries, and conflicts of interest. I invited the group to examine the NASW Code of Ethics and identify relevant standards. We focused especially on section 1.07 of the code, which states that social workers are permitted to disclose confidential information to third parties without client consent only when “disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person” (standard 1.07[c]). We also discussed how the code requires social workers to “inform clients when a real or potential conflict of interest arises and take reasonable steps to resolve the issue in a manner that makes the clients’ interests primary and protects clients’ interests to the greatest extent possible” (standard 1.06[a]).
I then highlighted several federal and state laws that, in my view, are directly relevant to clients’ rights and social workers’ duty in this particular instance. These include federal guidelines embedded in HIPAA and federal regulation 42 CFR Part 2: Confidentiality of Alcohol and Drug Abuse Patient Records. We discussed the extent to which the agency has a duty to protect clients’ confidential information under these laws and whether disclosure to the police without clients’ consent would violate clients’ rights. We discussed how many of the agency’s clients struggle with substance abuse and addictions and that the agency, which receives federal funding, likely falls within strict guidelines concerning protection of client confidentiality. Federal law requires agencies that receive federal funding and that diagnose, treat, or refer for treatment of alcohol or drug abuse to protect client confidentiality, with few exceptions. I explained that, in my view, disclosure to the police without clients’ consent would violate this law.
We then turned our attention to relevant state laws and regulations. I pointed out to the group that, in my opinion, three state laws and regulations are directly relevant to the case at hand. One statute concerns the confidentiality rights of people who receive health care services, including mental health– and substance abuse–related services. It requires health care professionals, including social workers, to protect client confidentiality, again with some narrow exceptions. A second state statute spells out the duty of licensed social workers to protect client confidentiality and grants “privileged communication” rights to social workers’ clients. A third law, which is in the form of regulation, outlines licensed social workers’ duties regarding protection of clients’ confidentiality and obligates social workers to adhere to provisions in the Code of Ethics.
The group consultation was spirited, respectful, and nuanced. I was struck by participants’ willingness to engage in thoughtful dialogue; consider diverse opinions, including some that differed from their own initial instincts; and aim for consensus. Over time, and without dissent, the group agreed to take a position opposing staffers’ disclosure to the police without clients’ consent or a court order. One of the agency’s program directors drafted a formal memorandum summarizing the group’s reasoning and presented it to the agency’s CEO and attorney. The result was implementation of a new policy that prohibited agency staffers’ disclosure of information to police officers without client consent unless disclosure was in response to a court order or consistent with exceptions in the Code of Ethics and relevant federal and state laws. Careful consideration of key ethical principles and standards, laws, and regulations was remarkably fruitful.
— Frederic G. Reamer, PhD, is a professor in the graduate program of the School of Social Work at Rhode Island College. He’s the author of many books and articles, and his research has addressed mental health, health care, criminal justice, and professional ethics.