PRACTICAL ETHICAL &
LEGAL INFORMATION
FOR DISASTER MENTAL
HEALTH RESEARCHERS
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Public Health Practice
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CHILD AND FAMILY
DISASTER RESEARCH
TRAINING AND
EDUCATION
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Public Health Practice
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Principal Investigators
• Betty Pfefferbaum, MD, JD
University of Oklahoma Health Sciences
Center
• Alan M. Steinberg, PhD
University of California, Los Angeles
• Robert S. Pynoos, MD, MPH
University of California, Los Angeles
• John Fairbank, PhD
Duke University
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Public Health Practice
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Federal Sponsors
• NIMH National Institute of Mental Health
• NINR National Institute of Nursing
Research
• SAMHSA Substance Abuse and Mental
Health Services Administration
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Public Health Practice
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Randal Beaton, PhD, EMT
Adopted/adapted from
John A. Call, PhD, JD
Crisis Management
Consultants
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Public Health Practice
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CASE EXAMPLE
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Public Health Practice
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You are working in a shelter after a hurricane and another
mental health volunteer asks you to help her gather some
survivors together for a group CISD session. She instructs
you to go down the row of cots and select survivors,
particularly families with children, who appear upset and
instruct them to assemble in a secluded corner of the gym
where some chairs have been set up. The session is to begin
in about an hour.
What are the issues?
What should you do?
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Public Health Practice
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Purpose
• Provide practical legal & ethical information
for front-line post-disaster mental health
researchers (and practitioners)
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Public Health Practice
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Goals
• Appreciate the ethical and legal aspects of different
phases and different types of disasters
• Understand some of the legal & ethical issues
impacting both disaster mental health services and
disaster mental health researchers
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Objectives
• Develop competencies in recognizing:
• Ethical issues involving standard of
practice, informed consent, confidentiality,
record keeping, and supervision in the
provision of disaster mental health services
• Legal issues involving professional liability,
licensure, and HIPAA in the provision of disaster
mental health services
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Objectives
• Develop competencies in appreciating
• The impact of states’ disaster related statutes
on the provision of disaster mental health
services & research
• The impact of federal statutes (e.g., HIPAA)
when conducting disaster mental health
research
• The policies and guidelines that IRB's consider
in approving human subject participation in
disaster research
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Review Basic Disaster Concepts
• Disasters have temporal
phases
• Disasters typology
The phase and type of
disaster interact with legal and
ethical parameters
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Psychosocial Phases of a Disaster
*
* From Zunin & Myers (2000)
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Types Of Disasters
• Human made vs. Natural disaster
 Human made-neglect vs. terrorism
• Immediate vs. Prolonged disaster
 Natural-Hurricane vs. pandemic
 Terrorism-Bioterrorism vs. explosion
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Legal
and
Ethical Issues
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Questions?
• Do all professional ethical rules apply to mental
health professionals during the chaos and
confusion characteristic of the impact or heroic
phase of a disaster?
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CASE EXAMPLE
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Public Health Practice
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You are working in a shelter after a hurricane and another mental
health volunteer asks you to help her gather some survivors
together for a group CISD session. She instructs you to go down
the row of cots and select survivors, particularly families with
children, who appear upset and instruct them to assemble in a
secluded corner of the gym where some chairs have been set
up. The session is to begin in about an hour.
What are the issues?
What should you do?
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Public Health Practice
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Issues
• Standard of Practice? At this juncture there
really is no community standard.
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Public Health Practice
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NIMH Guidance*(2002)
• Early, brief, focused intervention can
reduce stress
• Selected cognitive behavioral approaches may
help ASD, PTSD & depression
*http://www.nimh.nih.gov/publicat/massviolence.
pdf
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Public Health Practice
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NIMH Guidance (2002)
• Early intervention in form of recitals of
events and emotions do not consistently
help; i.e., CISD is not necessarily helpful
• No evidence that EMDR as an early
intervention as treatment of choice over
other practices
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APA Ethical Rules*
Guidelines for Psychologists
• APA Ethical Rule § 2.01 & ASPPB Code of
Conduct § III (A) (4)
• Psychologists provides services within
the boundaries of their competence
• In emerging areas psychologists
nevertheless take reasonable steps to
ensure competence
*American Psychological Association Code of
Ethics
http://www.apa.org/ethics/code2002.html
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APA Rule- Emergency Provision
• APA Ethical Rule § 2.02
• Psychologists may provide services for
which they have not been trained in
emergency situations- Would this rule
apply to the disillusionment phase of a
disaster? (Days or weeks following a
disaster?)
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Analysis
• Standard of Practice
• So if there is none, what is the Disaster Mental
Health Professional supposed to do?
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Recommended Guideline
ASPPB Code of Conduct* III(A)(4)states—
”engage in ongoing consultation & inform
clients of the innovative nature & known
risks of the service”
*Association of State and Provincial Boards of Psychology
Code of Conduct available at
http://www.ok.gov/OSBEP/documents/ASPPB_Code_of
_Conduct_2005%5B1%5D.pdf
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Issues
• Informed Consent
• It’s required; but how do I get it?
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Rule
• APA Ethical Rule § 3.10, 10.01 & ASPPB
Code of Conduct § III (D) (1)
• Psychologists must obtain informed consent
before providing services
• For persons who are legally incapable of
giving informed consent (e.g. children)
psychologists must obtain informed assent*
*Exemplar of Informed Assent Form for child
mental health study Claremont Grad School
http://www.cgu.edu/include/Informed_Assent.
Form.doc
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Rule
• APA Ethical Rule §3.10, 10.01 & ASPPB
Code of Conduct § III (D) (1)
•
For services for which generally recognized
techniques have yet not been established
psychologists inform the client of the
developing nature & potential risks of the
procedure
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Analysis
• APA Ethical Rule § 3.10, 10.01 & ASPPB
Code of Conduct §III (D) (1)
• Informed consent includes discussion of nature
& course of treatment, fees, involvement of third
parties, limits to confidentiality and the provision
of sufficient opportunity for the client to ask
questions
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NCPTSD* Guidance
• Introduce yourself with your name and title, and describe your
role. Ask permission to talk to them, and explain your objective
of finding out whether there is anything you can do to make
things easier, or helping with ways to help themselves feel
better….When making contact with children or adolescents it is
good practice to make a connection with a parent or
accompanying adult to explain your role and seek permission.
When speaking with a child in distress when no adult is
present, it is important to find a parent or caregiver to let them
know about your role and seek permission.
*National Center for PTSD Guidance for mental health providers
in acute phase @ http://www.ncptsd.va.gov/ncmain/index.jsp
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Conclusion
• Informed Consent is required for disaster
mental health providers and researchers
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Issues
• Confidentiality
• Needs to be discussed; but can you
promise it?
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Rule
• APA Ethical Rule § 4.01, 4.02 & ASPPB
Code of Conduct § II (B), III (F)
•
Psychologists must provide confidentiality
to clients
• Psychologists must document the client’s
consent or assent
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Analysis
• Psychologists discuss with clients the
relevant limits of confidentiality, the
foreseeable uses of the confidential
information.
• Unless not feasible, psychologists discuss
the issue of confidentiality at the outset of the
relationship
• Confidential information may only be
disclosed with written permission, except
upon court order or to conform with law
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Conclusion
• Confidentiality is required within certain
parameters, but there are limits to
confidentiality; e.g, imminent harm to self or
others– you MUST notify authorities. Also you
MUST report child abuse and elder abuse to
authorities. You may also communicate with
other providers to ensure continuity of care.
•Refer to HIPAA Disclosures in an emergency
document
http://www.hhs.gov/ocr/hipaa/decisiontool/
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Issues
• Record Keeping
• It is required and it is probably not
being done correctly (or at all in some
cases)
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Rule
• APA Ethical Rule § 6.01, 6.02 & ASPPB
Code of Conduct § III (A)(7)
• Psychologists must keep records & the
records must be kept confidential
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Analysis
• Records must include client’s name, the
presenting problem(s) or purpose or
diagnosis, fee arrangement, the date
and substance of each service
• Records must include any evaluative
result, notation & results of consults, a
copy of reports, and any releases
executed by the client
• Records must be kept for not less than
five years
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CASE EXAMPLE
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You are working at a Mass Dispensing site four days after
anthrax has been released at three local area malls. A
woman with two elementary aged children are in line to obtain
medication and one child, about 11 years old, is crying
hysterically. You, a Team Leader, instruct another mental
health volunteer to intervene.
What are the legal and ethical ssues?
What should you do?
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Issues
• Standard of Practice
• Informed Consent
• Confidentiality
• Record Keeping
• Licensure
• Vicarious liability- supervisors are
potentially responsible for negligent actions of
subordinates
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You are a member of an organization (the organization could
be religious based, professional based, or governmental
based) that provides DMHWs who work with children and
families during the acute phase of a disaster. It has been your
job to develop a database of volunteers, arrange and deploy
volunteers when a disaster occurs, and act as a team leader
at the disaster site, shelter, etc. when the volunteers are
deployed.
What are the issues?
What should you do?
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Issues
• Training & licensure
• Supervision
• Pre-deployment screening
• Post-deployment screening
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What Special Laws Apply In
Disasters?
• Emergency Management Compact (most
states)- EMAC is an agreement among states to
provide assistance across state in a disaster.
See http://www.emacweb.org/?1530
• “Federalization” & the Federal Volunteer
Protection Act (42 U.S.C. § 14501 et.seq.) AKA
the Federal Volunteer Protection Act of 1997
See
http://www.disastermh.nebraska.edu/files/Appen
dix-H-Federal_Volunteer_Protection_Act_pdf
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Stipulations of Volunteer Protection Act- Civil liability
protection is offered to non-profit or government volunteers
if:
• The volunteer was acting within their scope of responsibility
• The volunteer was properly license, certified or authorized to engage
in their disaster related activity or practice
• The harm was not caused by willful or criminal misconduct, gross
negligence, reckless misconduct or a “conscious, flagrant
indifference” to the rights or safety of the individual harmed by the
volunteer; and
• This statute does not refer to “spontaneous volunteers” who may or
may not be licensed and who are not serving in a formal capacity for
a NGO such as the Red Cross or a government disaster volunteer
agency such as the Medical Reserve Corps or Community
Emergency Response Teams.
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Analysis & Conclusion
• Disaster related laws provide limited liability
protection & waiver of state licensing
requirements under certain circumstances
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What Special Laws Apply In
Pandemics & Bioterrorist Events?
• Model State Emergency Health Powers Act
(MSEPHA)
• Washington, Oregon and Alaska have considered
or passed some components of the MSEPHA
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Public Health Law in the Age of Bioterrorism
• For an excellent overview of Public Health law that may
apply in a pandemic or bioterrorist I recommend the online tutorial e-course offered by the Northwest Center of
Public Health Practice
• This course may be accessed @
http://www.nwcphp.org/training/coursesexercises/courses/introduction-to-public-health-law
Course faculty: Patricia Kuzler, MD, JD, Associate
Dean, University of Washington School of Law
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Special Issues In Disaster Research
• Decisional capacity of potential participants
• Vulnerability of subjects
• Risks and benefits of research participation
• Informed consent
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Recommended Disaster Research
Guidelines
• When needed, formally assess decisional
competence
• Train researchers to recognize emotional
problems in subjects & have referral
sources available
• Carefully assess study risk/benefits
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Recommended Disaster Research
Guidelines
• Involve community members in research
planning
• Reduce likelihood that research is perceived
as treatment
• Setting for informed consent should be safe
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Recommended Disaster Research
Guidelines
• Provisions for confidentiality should be
explicit
• Should be explicit plans for training and
mental health support of researchers and
staff
• Inform subjects of study results
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Recommended Disaster Research
Guidelines
• Coordination among researchers and IRBs-• Proactive involvement of IRB’s in research
planning to remove barriers to timely data
collection
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UW Human Subjects Division
Richard Brzustowicz, Administrator, Roving
Zan Manning, Administrator, Minimal Risk
Sharon Smith Elsayed, Asst. Dir. for Education & Communication
July 12, 2007
Disaster Research
Thoughts, Issues & Recommendations
from the
University of Washington
HSD/IRB
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Disaster Research: Thoughts, Issues & Recommendations from the HSD/IRB
Acknowledgement
• Disaster mental health research poses unique issues and
challenges to researchers and to the HSD/IRB.
• It is important that the unique issues and recommended
guidelines presented earlier be understood, addressed and
acted upon by all involved disciplines.
• HSD is currently developing policies and procedures to
address special situations and needs, like disaster research.
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Disaster Research: Thoughts, Issues & Recommendations from the HSD/IRB
Thoughts
• The process of working with the HSD/IRB can be
flexible, and is likely able to be less formal than might
be expected.
• Proactive involvement of the HSD/IRB is encouraged
and highly desirable.
• It is the preservation of the foundational principles of
ethical research that is paramount to the HSD/IRB.
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Disaster Research: Thoughts, Issues & Recommendations from the HSD/IRB
Foundational Principles
Source: Belmont Report
• Respect for persons
Individual autonomy and the protection of individuals with diminished autonomy.
• Beneficence
Maximize benefits and minimize harms.
• Justice
Equitable distribution of research costs and benefits.
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Disaster Research: Thoughts, Issues & Recommendations from the HSD/IRB
Issues (not a comprehensive list)
• The Belmont principles may not carry equal importance
or may even be in conflict with each other, depending
on the research intent and design.
• Consent process – how to assure that it makes sense
within the context of what has occurred and who is
involved, potentially and in reality.
• Clarity regarding the distinction between the provision
of service and the conduct of research.
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Disaster Research: Thoughts, Issues & Recommendations from the HSD/IRB
Recommendations (again, not a comprehensive list)
• Proactive preparation and submission of an IRB application for approval in
advance of a potential disaster, with annual renewal and modifications – as
needed due to changes over time or in actual event circumstances.
• Keep specific aspects of the application and research protocol flexible in order
to minimize the need for change.
• Work with institutions and individuals to lay the groundwork.
• Integrate research into normal routines, to the extent possible.
• Try-it-out in “controlled” approximations (marathons, drills, etc.)
• Consider applying for a Federal Certificate of Confidentiality.
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