Toolkit for Working with Juvenile Sex Offenders

Daniel S. Bromberg, William T. O'Donohue

• Publisher: Academic Press
• Year: 2014
• Print ISBN: 9780124059481
• eBook ISBN: 9780124059252
• Topic: Psychology
• Subtopic: Clinical Psychology
• Index: Psychology

Juvenile sex offender therapy has changed markedly since it emerged in the 1980s. Toolkit for Working with Juvenile Sex Offenders provides therapists with a summary of evidence-based practice with this population, including working with comorbid conditions and developmental disabilities. It provides tools for use in assessment, case formulation, and treatment, and includes forms, checklists, and exercises. The intended audience is practitioners engaged in the assessment and treatment of juveniles whose sexual interests and/or behaviors are statistically non-normative and/or problematic. Readers will find a chapter on academic assessment and intervention, a domain frequently not covered by texts in this field. - Identifies evidence-based treatment practice specifically for juveniles - Provides tools for assessment, case formulation, and treatment - Covers treatment in comorbid conditions or developmental disabilities - Contains forms, checklists, and client exercises for use in practice

Chapter 1

Informed Consent or Assent for Assessment, Treatment and Releases of Information

Robert Kinscherff* and Craig Latham**, *Massachusetts School of Professional Psychology, Newton, MA, USA, **Latham Consulting Group, LLC, Northampton, MA, USA

This chapter reviews informed consent/assent for assessment and treatment of youth with problematic sexual behaviors and adjudicated sexual offenses.

Keywords

informed consent; informed assent; juvenile sexual offenders; problematic sexual offenders

Informed Consent as an Ethical and Legal Obligation

Informed consent for professional services is an ethical and legal obligation in all North American jurisdictions. Informed consent for professional services is a fundamental right that is protected under international law, frameworks of ethical codes, as well as federal law (such as HIPAA) and state law (such as statutes and regulations). The elements of an adequate informed consent are described below, but it is critical to appreciate that genuine informed consent is a process rather than a moment. That is, while an informed consent form might be signed prior to initiating assessment or treatment, it may be necessary to revisit informed consent should the patient/client later become confused or unclear about the elements of informed consent. Revisiting informed consent is required should there be a substantive change in circumstances or the methods or goals of the professional services offered.

There is nothing ethically or legally magic about a signature on a consent form. Courts have found that signatures on forms alone are insufficient to document an adequate informed consent. An adequate informed consent requires that: (1) the individual who is offering informed consent has been provided sufficient information to allow a reasonable person to make a considered decision about the professional services involved; (2) the individual demonstrates that they have a sufficient understanding of the information offered so that they can actually make considered decisions; and (3) the individual has been afforded a meaningful opportunity to ask questions or expressed concerns. Simply informing individuals about limits of confidentiality or testimonial privilege, the nature of professional services to be rendered, or other aspects of providing professional services is a necessary but insufficient step in obtaining adequate informed consent. In addition to providing information about the professional services to be rendered, the professional provider has an obligation to determine that the legal client offering informed consent has a sufficient understanding of the information to be able to make reasoned decisions when authorizing (or declining to authorize) professional services.

The obligation to secure adequate and meaningful informed consent and “assent” (which we define below) is a particularly solemn professional duty since there is often at least some degree of implicit or explicit coercion involved in the provision of professional services to alleged or adjudicated juvenile sexual offenders or youth with problematic sexual behaviors. For example, being placed on probation by a juvenile court that is conditioned on participating in community-based assessment or treatment is a “voluntary” alternative to commitment to a juvenile justice authority. Discharge conditioned upon effective engagement in specialized juvenile sexual offender services in a residential treatment or a juvenile “secure treatment” or incarceration facility is “voluntary” in the sense that a youth can simply refuse to participate and accept the consequences of being “stuck” in institutional care for some period of time. A juvenile referred for a court-ordered evaluation can refuse to participate and accept whatever consequences may be imposed by the court which, in sexual offenses, may include longer-term confinement within the juvenile justice system.

In addition to varying degrees of coercion involved in providing professional services to this population, assessments and treatment commonly involve intrusive inquiries regarding sexual perpetration and victimization, sexual behaviors and arousal, sexual interests, and masturbation practices. Effectiveness of assessment and treatment over time may be judged, at least in part, upon self-disclosures in these domains and others that are commonly outside of routine clinical inquiry or expectation when providing services to other clinical populations. As a result, it is particularly important to assure the adequacy of informed consent and assent and to appreciate that the process of obtaining them may be subject to particularly strict scrutiny if it is later challenged.

Key Elements of Informed Consent

The basic elements of an adequate informed consent include:

1. Identification of the legal client. The legal client is the individual or entity who has the legal authority to engage in the process of informed consent and then to authorize or decline to authorize professional services. An adequate informed consent can never be obtained from an individual who lacks the legal authority to offer it. Once the legal client has been identified, the practitioner should determine what other “ethical clients” (such as the youthful minor, third parties, others) are involved in the case.

2. Identification of the ethical client(s). Provision of professional services with adjudicated juvenile sexual offenders or youth with problematic sexual behaviors commonly involves ethical clients (and must always involve a legal client). The most obvious ethical client is the youth receiving assessment, treatment or other professional services. A youth under age 18 ordinarily cannot provide informed consent or authorize professional services, but the professional clearly has ethical obligations that include securing adequate informed consent from the appropriate legal client, clarifying one’s professional role and maintaining professional boundaries, provision of competent services, efforts to secure the youth’s “assent,” (discussed below), and termination of services that are ineffective or no longer necessary. There are commonly “third party” ethical clients as well. For example, a clinical professional working in a juvenile justice setting or residential treatment setting will have ethical obligations to the organization. Some professionals working with youth who have sexually victimized others consider “society” or “potential future victims” also to be ethical clients. This is understandable but cannot be used to justify deviating from the duties owed to the legal client or from research-based “best practices” with the youth receiving services. For example, identifying “society” or “potential future victims” as ethical clients cannot be used to justify professional practices that are punitive or shaming, overly restrictive, fall below accepted standards of care or practice, or are inattentive to legitimate boundaries of confidentiality or testimonial privilege.

3. Obtaining informed consent and “assent”. Informed consent can only be obtained from the legal client who has the capacity to authorize professional services following a sufficient informed consent process. Nonetheless, efforts are made to secure the “assent,” or willingness to participate, of the youth or other interested parties (such as the parent(s) or legal guardian) when it is a court-ordered evaluation. In that situation, the court is essentially authorizing the evaluation but steps are taken to secure the “assent” of the youth and parent(s) or legal guardian by describing the role of the professional, the nature and purpose of the evaluation process, any relevant limitations on confidentiality or testimonial privilege and the like in terms that are understandable and developmentally appropriate for the youth and sufficiently detailed to inform the parent(s)/legal guardian. Court-ordered evaluation may proceed without the assent of the youth or parent(s)/legal guardian, although a parent/legal guardian or attorney for the youth may advise the youth not to participate directly in the evaluation process. The goal of seeking assent is to communicate respect and regard for the position of the youth and others – and, ideally, to secure their engaged involvement with full appreciation of the circumstances in which they find themselves – but offering assent is not required to proceed with professional services.

4. The role of the professional(s) in providing professional services. The professionals providing services should identify their professional background at a level of detail sufficient to inform the legal client (and others) about their relevant training and experience. This is particularly important if the youth has special characteristics (such as an intellectual or developmental disability, unusual or complex clinical presentation, or is identified as posing particularly challenging cultural or linguistic competency issues). The scope and nature of services to be provided (such as assessment, treatment, other) should be described. If the identified legal client is not the parent or legal guardian of the youth, then the identified legal client and the role of the professional must be disclosed. For example, if the evaluation is court ordered, provided for an attorney, or arranged by a governmental agency or a contracted services provider, then the parent(s) or legal guardian of the youth must be informed that the professional is actually providing services to a legal client other than them. The goal(s) of the services to be provided (discussed below) for the legal client must also be disclosed as well as any reasonably foreseeable outcomes of providing those services to the youth. For example, when providing a court-ordered assessment to aid the court in making a disposition decision following adjudication, the potential outcomes might be a community-based probation or commitment to a juvenile justice authority. Additionally:

• Consideration must be given to the context in which the professional services are to be provided and relevant information provided in obtaining informed consent and assent. As examples, the following contexts all may raise potentially complex issues in one or more areas, such as confidentiality and testimonial privilege (discussed below), that require disclosure and discussion when obtaining adequate informed consent or assent

– community-based assessment or treatment for sexual misconduct that has not resulted in sexual offense charges (confidentiality and privilege issues including mandated reporting, identification of the legal client, consequences should the youth fail to engage in professional services authorized by the legal client)

– community-based assessment or treatment as a condition of probation or other conditional liberty (identification of the legal client, confidentiality and privilege issues regarding information exchanges, consequences of failure to engage in the required professional services)

– treatment following adjudication provided in an out-of-home placement providing specialized juvenile sexual offender programming (confidentiality and privilege, consequences of failure to engage in treatment, clarity about who is the legal client; clarity regarding third-party access to the treatment records)

– pre-adjudication evaluation retained by defense counsel (attorney–client privilege, proactive clarity regarding expectations about mandated reporting, attorney as the identified client who controls the work product)

– court-ordered pre-adjudication evaluation of sexual offense or sexual recidivism risk when the youth denies the alleged misconduct (right against self-incrimination, proper waiver of any psychotherapist-patient privilege,¹ significant problems with the scientific reliability of assessment or clinical capacity to distinguish reliably among actual innocence, lying when denying the alleged misconduct, or clinical “denial” when assessment occurs before court adjudication of the alleged misconduct).²

• Forensic and clinical roles must be carefully distinguished and communicated for purposes of assent and informed consent, and practitioners are cautioned against mixing or confusing those roles. If the clinician is a trainee or a professional acting under a clinical supervisor, then this must be disclosed to the identified legal client and a reliable means provided through which the identified legal client can reach the supervising professional.

• Supervisors, supervisees, and trainees. A “supervision” relationship means that the supervised professional or trainee is acting on behalf of the supervisor. Legally and ethically, the supervised case is the supervisor’s case for which the supervisor has ultimate responsibility. A supervised professional or trainee must follow the direction of the supervisor even if the supervised professional holds an independent license. This contrasts with “consultation” in which the consultant does not hold ultimate responsibility for the case and the professional receiving consultation is free to accept, modify or reject the guidance offered by the consultant. Sometimes professional providers call their relationship a “supervision” relationship when, in fact, it is a consultation relationship. For example, persons engaging in “peer supervision” are rarely agreeing to accept full legal and e...

Table of contents

• Cover image
• Title page
• Table of Contents
• Copyright
• List of Contributors
• Preface
• Acknowledgments
• Chapter 1. Informed Consent or Assent for Assessment, Treatment and Releases of Information
• Chapter 2. Assessment of Dynamic Treatment Targets for Juveniles Who Sexually Offend
• Chapter 3. Penile Plethysmography
• Chapter 4. The Polygraph
• Chapter 5. Writing Dispositional Evaluations of Juveniles Adjudicated for Sexual Offenses and Juveniles with Sexual Behavioral Problems
• Chapter 6. Tools for Testifying in Court
• Chapter 7. Assessing and Modifying Denial in Juvenile Sexual Offenders
• Chapter 8. Relapse Prevention as a Treatment Modality for Juvenile Sex Offenders
• Chapter 9. An Outpatient Treatment Response for Youth Assessed as Low to Moderate Risk
• Chapter 10. Modifying Problematic Sexual Interests of Males
• Chapter 11. Developing Healthy Sexuality
• Chapter 12. Trauma-Focused Cognitive Behavioral Therapy for Juvenile Victims of Sexual Abuse
• Chapter 13. Assessment and Intervention with Young People who Sexually Offend
• Chapter 14. Social Skills, Substance Abuse, and Sexual Behavior Problems in the Adolescent
• Chapter 15. Academic Intervention
• Chapter 16. Integrating the Good Lives Model with Relapse Prevention: Working with Juvenile Sex Offenders
• Chapter 17. Increasing Self-Control
• Chapter 18. Documenting Treatment for Sexually Abusive Youth
• Chapter 19. Practical Strategies for Working with Youth with Intellectual Disabilities who have Sexual Behavior Problems
• Chapter 20. Integrating Families into Treatment for Adolescents with Illegal Sexual Behavior
• Chapter 21. Tools for Quality Improvement
• Chapter 22. Developing a Practice Around Juvenile Sexual Offending
• Index