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TRANSFINITO International Webzine

An essay on law and ethics

The duty to report is absolute and who, today, dares take an absolute risk?

Eva Löwstedt
(1.12.2012)

I.

We who work in a clinical setting and have to obey the laws of health care and medical services are also encompassed by a paragraph in the law of social services that demands us to immediately file a report in situations where a child is harmed or at risk of being harmed.

The duty to report is absolute and may not be subjected to considerations by officials or the professionals themselves. All authorities within the health care system, including private practitioners, are encompassed by the rules, whether or not their practice is directed towards children.

The duty to report is a rule that immediately breaks the secrecy within the health care system. If you neglect this duty to report, it is considered a breach of duty according to the criminal legislation.


How do we, in our clinical practice, interpret a law that gives us possibilities as well as obligations to regularly resign our own judgement on important issues?

What ethical dilemma will we end up in by reading the law literally?

JPEG - 51.4 Kb
Hiko Yoshitaka

Of the families that request consultation at child and adolescent psychiatry institutions, the majority should have been reported to the social board already after their first visit, since patients in child psychiatry by definition belong to families with problems that they, as close to the truth as possible, are expected to describe to us. The fact that the social board often considers such a report as a sign of the family’s willingness to seek child psychiatric help and thus as a extenuating circumstance does not free us professionals from the immediate duty to report such information – and new subsequent one – that may imply that a child is harmed or at risk of being harmed.

In the clinical work with adults, where any information on children is indirect, the law should be even more delicate to handle.

An example from everyday practice: If the physician during somatic examination of his adult patient is given information on family conditions that might imply a risk for harm of a child, psychologically or physically, the law does not ask for the physician’s own judgement but only for his or her action in immediately reporting to the social board the information that might constitute a risk for harm of a child.

What constitutes “harm” or maybe even more difficult “risk for harm” in the future? There is no legal scope for your own considerations. There is no legal space for time and closer investigation.

How do we protect our clinical mission with regard to a law that, if we obey it literally, makes us the agents of the social authorities.

The social services as authorities have both the right and the obligation to investigate and intervene in the citizen’s life, if necessary by force. The task of the social services is thus totally different from our task as health care providers in the diagnostic and therapeutic effort that we make in cooperation with the patient.

The law on absolute duty to report precedes our secrecy and constitutes a legal merge of the health care and the social services. Are our patients aware of this when they talk to us? What will happen with their narrative if we remind them? How will this influence our possibilities to perform our clinical task?

The publication from National Board of Health and Welfare Duty to report on hazards for children illustrates the following example:

A child is admitted to the health care with an injury that may indicate that the child has been battered. An immediate report to the social services is anticipated. I quote: A closer medical examination, however, reveals that the injury has quite another cause. This should (my italicizing) cause the hospital to inform the social board.

We may state that the law does not permit the conclusion of medical assessment prior to filing the report. We may also state that the individual professional does not have an absolute obligation to correct a previous faulty report on crime in spite of that he or she as a medical expert in precisely such a case should be the very person that the social services is dependant upon in their later obligation to investigate the filed report.

II.

Aristotle pointed out that a rule can never constitute the ultimate basis for decision making. In order to make a sound decision, the concrete and specific circumstances in every specific situation should precede over a general rule. The responsible professional does not regard laws, professional ethical standards or other rules as imperative in sound decision making. From an ethical point of view, the most interesting thing is rather what she does with the modes of action that can not be specified. Applying a rule always requires interpretations, which a priori are personal.

Aristotle wrote:

.”…all law is universal, and there are something about which is not possible to pronounce rightly in general terms; therefore in cases where it is necessary to make a general pronouncement, but impossible to do so rightly, the law takes account of the majority of cases, though not unaware that in this way errors are made […] So when the law states a general law, and a case arises under this that is exceptional, then it is right, where the legislator owing to the generality of his language has erred in not covering that case, to correct the omission by a ruling such as the legislator himself would have given if he had been present there, and as he would have enacted if he had been aware of the circumstances.”

III.

Psychotherapy is the oldest therapeutical mode used in medicine. In order to obtain cure, the primitive and antique medicine brought the sick into a state of “confident expectation” which even today may be regarded as a key method in different forms of psychological therapy. From contemporary and still valid definitions of clinical practice in psychology, I would like to highlight the following issues:

What is the psychologist’s clinical duty?

Considering current laws, how do we psychologists protect the conditions for a workable clinical practice?

For example, how do we interpret the law of compulsory report to the social services with regard to our clinical task?

Why do we endorse secrecy and what happens when the law demands its suspension?

IV.

A psychological analysis preceding counselling requires the client’s narration as crucial in order to assess the following: What is the problem for the patient? But also: what is the patient’s fantasy? That is, what fantasies and conceptions might be regarded characteristic and crucial for the patient’s current problems?

In 1919 Sigmund Freud wrote about the origin of sexual perversions and described how he encountered six cases of fantasies whose implications implied that “a child is being beaten”. We can follow Freud’s way of approaching a clinical and theoretical problem and how he elaborates a line of thought making the masochistic fantasy more comprehensible.

Freud shows, for instance, how the fantasy is transformed according to who is being beaten, who is beating, and if there are any spectators. From the structure of hallucination we know how something that has come to existence as a psychological inner phenomenon is transformed as to return as an external reality. The fantasy of an obsessional neurotic’s prison has another structure, but the principles for us listeners are the same: to thoroughly absorb the tale of our client in order to “read” his symptoms and return an interpretation which is acceptable to the patient and thus can be used by him.

Clinical work includes handling fantasies that are articulated with obvious claims on reality but without any basis in reality.

If we accept counselling a reasonable method to explore these things, in collaboration with our patients, how should we as listeners handle for instance the law requiring us to immediately file a report to the social services at the mere suspicion that a child may risk harm?

How can we defend the absence of a literal interpretation of the law in favour of letting the work remain on the level of narration, listening and counselling?

The question can be transformed to numerous other situations in clinical work. For example, in a so-called suicide risk assessment, how long can we let the investigation remain conversational before we psychologists initiate medical assessment that may lead to pharmacological treatment or admission to hospital?

V.

Institutions of child and adolescent psychiatry often receive cases where the family is already, according to the law, object of social investigation since the children have shown symptoms of mental disturbance along with suspicions that the children for some reason are harmed. These children are predominantly from split families who live in social misery, with drug abuse, criminality, conflicts of custody and other enacted conflicts. A compulsory task for the psychiatric institution is to make a statement on the psychiatric status of the child. A frequent question in this context is whether the child, in such an environment of transgressive acts, has also been subjected to sexual abuse. A common scenario is that the mother, or someone in her place, for example a female social worker, imagines that the father or someone in his place, for example a stepfather, has subjected the child to sexual abuse. The causes of the child’s different symptoms of mental disturbance are often conceived in terms of pre-psychoanalytical theories of trauma and seduction proposing that an actual act of trauma or tragic seduction has taken place. This assumption is made by some adult close to the child who has revealed, according to their judgement, a premature, that is, not age-adequate, knowledge of sexuality. In our task to assess the child’s psychiatric status we are forced to ask the following questions:

1/ Can the patient’s formation of symptoms be the sequel of exposure to criminal acts? Has there been an act that should be defined as criminal and that could be the main reason for the childs mental disturbance?

2/ Is the narration that describes criminal acts true, false or a mixture of both?

3/ If it is false, is it a frank lie or a fantasy?

In this context, it is self-evident that fantasies are not criminal but actions may be so. We can imagine that a man or a woman puts his or her hand on the child’s shoulder, chin, sex or any other part of the child’s body. If the adult person is sexually aroused by touching the child, this person will be defined as paedophilic if this experience is articulated. If the child regards the touch or manipulation from the adult as an implication of sex, then we must deal with the child’s fantasies of a sexual relationship.

The variations of those fantasies are, of course, endless, since the interaction between child and adult – apart from physical contact – involves oral communication and glances. What has been said and how should it be interpreted? What has been seen or heard and what did it implicate? When someone starts to articulate these fantasies of a sexual relationship between a child and an adult, it often leads to action from representatives in the legal system as well as in the health care system.

These narrations include a number of difficulties that due to their character often give rise to severe misunderstandings, and they are frequently sanctioned as the truth at some point thus prohibiting further investigation.

What has really happened?

This is the question that both the health care provider and the legal representative must ask with regard to their respective mission.

How much time may such an investigation consume before the clinician should give the law of reporting to the social services precedence over the secrecy act?

VI.

The law that regulates professionals within the health care system contains a chapter on responsibilities and obligations regarding the duty to file reports on children who are harmed to the social services. This duty works, in practice, as a reminder and HSAN (National authority which assesses medical negligence) will not take any disciplinary action against professionals who neglect the report duty.

Even if this has no ideological background, the policy of HSAN seems to be in line with Aristotles teaching that the spirit of the law should prevail over the literal interpretation.

It is well known that investigations have inherent therapeutical effects. When we use explorative communication, patients may abandon their symptoms during the progress of investigation and clarification of facts. The secrecy act, which we are obliged to follow, protects this process and allows the client to speak freely. It is self-evident that we shall not protect criminals or evade our responsibility to aid authorities in their efforts to protect children from harm. But a too narrow interpretation of our duty to report before we finish our investigation will not only render the real victims difficulties in their narration, but we also run the risk of reporting someone on false grounds, which in other circumstances is regarded as a crime.

Now and then reports from us within child and adolescent psychiatry to the social services are returned as a request for assessment. The social services require our aid in assessing the credibility of different statements in order to carry their investigation forward. Has James been exposed or not, or in other words – is it all a fantasy – from a child or an adult – or is it reality?

In such a situation it is obvious that it is difficult to obtain a reasonably uncensored narration.
I was recently asked to investigate such a case of two children from the same family which had been reported by my institution to the social services. The children, a 13-year old girl and an 8-year old boy, were in a bad mental condition, which was to be expected considering the circumstances. But quite naturally, they protected their parents. It is well known that the real victims do not report on violations and border transgressions. They ally with their tormentors and continue in misery.

People communicate when they expect to gain something from doing so. For instance, when children end up in a traumatic process on custody between two fighting parents and by pure instinct of self-preservation are forced to ally with one of the parties: according to my experience they then willingly report experiences from the parent whom the allied parent is fighting.

VII.

Primum non nocere – our first responsibility is not to cause harm is a central and old ethical principle since the days of Hippocrates and has since then been applied as an important rule of care in most health care professions, that is, the care that we adopt in order to protect those who seek our aid from negative effects of our professional interventions.

Another aspect of care is how we act to protect ourselves, which may include an unethical position where the guidelines for our standpoint are safe-guarding and cautiousness. According to my experience from different institutions, it is more of a custom to report immediately than to withhold reports when different kinds of misery are revealed. Interpreting the law literally will not render us accusations or disciplinary actions. But is such a position meant to safe-guard the patient or the care provider?

VIII.

Individual priority

Aristotle brings forward the idea on ethical flexibility in a lively and famous metaphor. A person who makes all his decisions referring to a general principle is like an architect who uses a straight ruler to measure the intricate structure of the grooved columns. No architect will of course do so. Instead he follows the example of the constructors in Lesbos who use a flexible metal band, the lesbian ruler that “adapts to the shape of the stone and keeps its own course”.

The difference lies in perception, Aristotle says in conjunction with his attack on pseudoscientific pictures of rationality, where the rational choice is regarded as something that can be caught in a system of general rules or principles which are then applied in the same way in each new case. Aristotle’s defence for the “superiority of perception” together with his emphasis of practical wisdom confront the systematic science which is totally absorbed by universal and general principles, instead he promotes an informal, intuitive, concrete and situation based decision making as superior to the scientific.

Aristotle’s attack on the universal applicability in ethics is closely attached to his attack on equivalence. These two conceptions are closely related and both are regarded by their proponents as progressive tricks that we can use in order to liberate us from the ethical vulnerability which is the result of our perception of the qualitative heterogeneity.

Is this difficult? Yes.

Is it unbearable?

How do we handle the difficulties of uncertainty?

Who dares take an absolute risk today?


IX.

One of the means that Aristotle points out against this uncertainty is experience. He means that the difference between the real expert and the one who has professional skills purely by formal education is often the personal experience. While the professional role gives a background description of WHAT should be done it is always the individual professional’s own interpretation that decides HOW. The distinction between what and how refers to Aristotle’s differentiation between different practical actions, poesis and praxis respectively which can be translated to the terminology of modern health care decision making: the scientific basis or approved experience.

Poesis is what can be predicted, described and taught by means of different methods and techniques. Praxis can strictly speaking only be acquired by personal experience, reflection and through dialogue and exchange of perspectives with others.

The British term experience is better than the Swedish counterpart in describing the close connection between being an expert and having experience. And if we use the Greek word empeira, for experience, we get a conception with a much wider definition than modern science puts in empirism. In the Hellenistic culture this meant that the abilities of the body after practise and trials are similar to what is often referred to as empirical knowledge.

X.

There are no rules to guide us in every new situation. By definition the unique case cannot be subjected to controlled scientific studies and is not repeated. This is true of our own lives as well as in our clinical work.

The absolute duty to report can be viewed as one in a row of laws, general rules and manuals which are regularly offered to us as theoretical means of evading legal consequences, our own judgement and personal interpretation of the individual case. If we take the risk of using our own judgement instead of a literal obedience of the law regarding reports, we do not risk any disciplinary action from the HSAN.

Under what conditions do well educated, responsible professionals of today choose to regard rules, professional ethical norms or other manuals and instructions as the ultimate basis for a well balanced decision to act?


By Eva Löwstedt

eva@lowstedt.se

Presented at the Congress at the Villa San Carlo Borromeo, La libertà. Atti del Festival della modernità, Milano, 3-6 luglio 2008


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6.10.2016