Legal And Ethical Dimensions Of Practice - Dovetail

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02supporting the youth alcoholand drug sector in Queenslandlegal and ethicaldimensions of practiceyouth alcohol and drug good practice guide

Dovetail provides free professional support to any worker or service in Queensland who engages with young peopleaffected by alcohol and drug use. Funded by Queensland Health and delivered by a Consortium of 14 government andnon-government agencies, Dovetail seeks to identify a youth alcohol and drug sector, connect its services and workerstogether, and equip them with evidence-informed knowledge, skills and resources to enhance their practice.This booklet is one of six Dovetail Good Practice Guides developed in partnership with the School of Public Health andSocial Work at the Queensland University of Technology. Through a participatory methodology, frontline workers andmanagers from across Queensland nominated, explored and shared insights about their direct knowledge, tools, resourcesand practice wisdoms to inform the pages of these Guides. With additional help and contribution from our friends at theYouth Advocacy Centre and Caxton Legal Centre, this collective wisdom - grounded in the reality of direct practice withyoung people - comprises a new evidence-base for the sector. Aimed at practitioners across clinical and community-basedcontexts, we trust these Guides will further contribute to the growing knowledge and skill-base on how to most effectivelywork with young people experiencing problematic alcohol and other drug use.

legal and ethicaldimensions of practice

This Guide is written by Phil CraneAcknowledgementsSeries Editor: Phil CraneThis Guide on ‘legal and ethical dimensions of youth AODpractice’ has many contributors. The development ofspecific material was iterative and developed over timethrough a range of processes and conversations. Particularacknowledgement is given to the legal and youth workpractice decision making framework developed by the YouthAdvocacy Centre Inc. which provided a foundation for thestructure of this Guide, as well to the important contributionof concepts and material from the Centre’s Laying Down theCriminal Law. Thanks are also due especially to:Design by: Tony Giacca and Benjamin DoughertyAbout the authorPhil Crane (PhD) is Senior Lecturer in Youth Services at theSchool of Public Health and Social Work, Faculty of Health,Queensland University of Technology (QUT), where helectures in youth services and legal and ethical aspects ofhuman services practice. the services, practitioners and managers involvedin the Dovetail network who contributed theirexamples, experiences and feedback;Published byDovetailGPO Box 8161Brisbane, Queensland, 4001.www.dovetail.org.au the Dovetail team of Jeff Buckley, Cameron Francis,Leigh Beresford and Benjamin Dougherty for theirfeedback on draft material, input and support; the Youth Advocacy Centre and Caxton LegalCentre for their feedback on draft material andpermission to reproduce sections from theirpublications;April 2012ISSN: 0813-4332ISBN: 978-0-9873015-1-2Suggested citationCrane, P. 2012. Youth alcohol and drug practice guide 2:Legal and ethical dimensions of practice. Brisbane: Dovetail. the Queensland Health staff from Hot House (YouthCommunity Team), the Statewide School BasedYouth Health Nurse Program and Minding YoungMinds Program, Child and Youth Mental HealthService in the Children’s Health Services, for theirexpert feedback and input on draft material; Linda Shallcross (Ph.D) for her assistance insupporting the involvement and input from services; and participants from the ‘10 Services Group’:Adolescent Drug and Alcohol Withdrawal Service(ADAWS); Alcohol, Tobacco and Other DrugsService (ATODS) - Townsville; Alcohol and DrugFoundation Queensland (ADFQ) - Kingaroy; Boystown- Logan / Ipswich / Redlands; Brisbane YouthService (BYS); FOCUS - Sunshine Coast Divisionof General Practice (SCDGP); Gold Coast DrugCouncil (GCDC); Hothouse (Youth Community Team);Indigenous Wellbeing Centre (IWC) - Bundaberg; andYouth Empowered Towards Independence (YETI) fortheir feedback and input.YOUTH SERVICE INC.This initiative is funded by the Queensland Government.

DisclaimerNeither Dovetail nor QUT make any representation about the suitability of this information for any purpose.It is provided “as is” without express or implied warranty. Both Dovetail and QUT disclaim all warranties with regard to thisinformation, including all implied warranties of merchantability and fitness. In no event shall Dovetail or QUT be liable for anyspecial, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whetherin an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance ofthis information.Links to external websitesThis Guide contains links to websites that are external to Dovetail and QUT. We take care when linking to these sites buthave no direct control over the content of the linked sites, or to the changes that may occur to the content on those sites.It is the responsibility of the user to make their own decisions about the accuracy, currency, reliability and correctness ofinformation contained in linked external websites.ImportantThis Guide contains some general legal information understood to be accurate at the time of writing. However, changesoccur to law and as such you should always check the current accuracy of legal information you rely on in practice.Material in this Guide should never be taken as providing you or any other person with legal advice. Legal advice regardingthe application of the law to a particular circumstance or situation can only come from a legal practitioner. A range ofsources for legal advice can be found in the Guide.

SECTION 1: Dealing with complexity- the ‘tricky stuff’13What is ‘tricky’ in youth AOD practice?SECTION 2: Incorporating legal and ethicalconsiderations into decision making18Understanding the nature of the professionalrelationship in a particular practice context18Key questions and considerations fordecision makingSECTION 3: What does the law say?SECTION 5: Organisational policies andexpectations54Agency policies / procedures and management54Standards56Consumer / client rights statements andpolicies56Working across organisations59Organisational policy for practice with youngpeople in high risk situations64Dealing with child protection concernsSECTION 6: Considering ethics and whatconstitutes ‘good’ youth AOD practice22The relevance of law to practice23Distinguishing between legal information andlegal advice68The interface between law, ethics andorganisational location in practice24Where to access legal information and legaladvice68Key ethical approaches70Ethical values and principles27Young people and the law regarding alcoholand other drugs72Professional boundaries76Guidelines34Supporting young people in the court process76Ethical practice and cultureSECTION 4: Legal considerations andconcepts relevant to practice with youngpeople36Some relevant legal principles for practice37Human rights37Anti-discrimination38Legal capacity38Informed consent43Confidentiality46Privacy47Natural justice and procedural fairness50SECTION 7: Integrated approaches todecision making78‘Designing in’ ethics78The inclusive model of ethical decision making81Returning to the checklist of questions fordecision making84 REFERENCES88 DRILLING DOWN88Resources for legally aware practiceLegal ‘potholes’90What are the different types of law?50Breach of statutory duty9250Breach of contractCourts, tribunals, youth justice conferencingand associated AOD programs52Criminal behaviour100 The case of Steven102 Resources for informing ethics in practice103 Child protection professional educationresources and assessment tools106 Professional boundary activities

Tables and Figures19Table 1: What does a worker need toconsider in working through practicetensions?25Table 2: Where to access legal informationand advice12Table 3: Supporitng young people in theChildrens Court youth justice processFigure 1: Intersecting considerations forpractice36Figure 2: Key legal principles3455Table 4: Standards in health and communityservices74Figure 3: Over-involvement / detachmentcontinuum63Table 5: Some strategies for managingethical and legal risk at the service level7671Table 6: Core values that underpin AODpracticeFigure 4: Aboriginal and Torres Strait IslanderPeoples’ values, relevant to health researchand ethics79Table 7: Generic questions for an inclusivedecision making processFigure 5: An inclusive model of decisionmaking93Figure 6: The court system80

IntroductionFocus and contentsThis Guide is designed to assist Queensland-basedyouth AOD workers to better understand andnegotiate the complex interplay of ethical, legal andorganisational considerations in their practice. Legal,ethical and organisational dimensions of practiceheavily condition youth AOD education and training,policy, research, administration, law enforcement,health promotion, prevention, primary care and soon. Given the criminal law and legal status of alcoholand drug possession and consumption in Australiaand the age of the client group, these considerationstake on particular significance.The target audience for this Guide is direct servicepractitioners in Queensland, particularly those newto the youth AOD sector. Managers and supervisorsmay also find it useful as a point of reference, aswill workers from outside Queensland, althoughsome content may not be relevant or apply to theirparticular state or territory.As with all the guides in this series, the goal isto provide frontline workers and managers withquestions and principles which promote good youthAOD practice. Each of the topics canvassed in thisGuide is substantial in its own right. The implicationis that this Guide should be used as a prompt forasking questions and seeking further advice andsupport when a way forward is not clear, or wherethe consequences of particular courses of actionneed to be considered more fully. As indicatedelsewhere in this series, youth AOD work is heavilycontextualised and this will influence how particularaspects of practice are undertaken.It is understandable for workers and agencies toseek clarity about what they should do in trickyor complex practice situations. This Guide willdisappoint in that respect. It is not possible toprovide such clarity given the limited amount of caselaw around practice, the moral basis of ethics, andthe spread of responsibility across frontline workers,organisations and governments, and the infinitevariety in practice situations. There are no easyanswers to the ‘tricky stuff’, but there is a foundationof information to be aware of and good questionswe can ask.Please note that for additional information on youthwork and the law, refer to Youth Advocacy Centre’shandbook “Laying Down the Criminal Law”– www.yac.org.au, and for further information onthe law in Queensland refer to “The QueenslandLaw Handbook” published by Caxton Legal Centre –www.caxton.org.au

Section 1Dealing with complexity- the ‘tricky stuff’The theme of complexity is threaded through these guides. In any given practice situation the practitionerneeds to be aware not only of the context of the young person (or young people) they are working with, butof their own context - most importantly the role they are undertaking at the time, the policies that conditionservice delivery, various types of laws, and ways of understanding practice that create expectations of what isreasonable and ethical for them to do in a particular situation.Youth AOD practitioners are almost always working for an organisation, whether as a paid employee, acontractor or a volunteer. Organisations have policies and procedures designed to inform and manage theservice delivery process. Whilst important, even these do not fully inform many practice situations. Frontlineworkers in AOD related practice with young people often say that this lack of direction and certainty can bequite ‘scary’.The reality, as depicted in Figure 1 below, is that practitioners have to deal with and make lots of decisions inthe ‘grey zone’, often in short timeframes. Being able to do this is the ‘craft’ of the frontline.Role andmandateLegalGoodpracticeFigure 1: Intersecting considerations for practice12OrganisationalOEthical

If you read no further, take these questions with you as critical to making decisions in frontline practice.A broad decision making checklist What aspects of this situation should I be concerned about?In respect of each of these aspects (or together if relevant) answer the questions below: What is my role and mandate? What does the law say? What does my organisation (policies and procedures) say? What does my professional framework say? What is good practice in this situation? (practice standards,accepted good practice characteristics and strategies, core values, code of ethics, ethical decisionmaking processes) What does my personal framework say? What impact/s will/might my decision/approach have on my client? On others? What other processes should I use to inform what I do? (e. g., seek advice / information that isnecessary and relevant, assess alternative options, apply a particular practice model etc.) What else should I consider here? On what grounds can I justify what I do?Source: Adapted from Wight and Hoyer, 2009. 8. Youth Advocacy Centre. [www.yac.net.au]1.1What is ‘tricky’ in youth AOD practice?There are many tensions and dilemmas that workersundertaking youth AOD practice might experience.Most tensions can be adequately responded to bya worker reflecting on the situation and taking intoaccount various considerations for what constitutes‘good practice’ in that specific situation.Dilemmas are more difficult as these involve needingto make a choice between two or more importantprinciples for good practice. In other words, two ormore legitimate principles for practice cannot bothbe achieved.What are these tensions? The tensions cited belowcome from the consultations undertaken in producingthis Guide and the Therapeutic Practice Frameworksin Youth Alcohol and Other Drug Services (Bruun andMitchell 2012). The level of autonomy and self determination toafford a young person. The need to consider the role, expectations /requirements of, and duties to, third parties:– who are part of a young person’s naturalnetwork of supports and connection(parents, friends, significant others).– who have a mandated role which affectpractice (e. g., the courts, youth justice oradult corrections system).– who are other service users or partiesaffected by what happens in practice. Limitations arising from the way servicedelivery is conceptualised, undertaken and/or resourced within the organisation, or byother parts of the service system. The fundingcontext, the organisational context, theparticular model of service, and the servicesystem can be experienced by workers asbeing in tension with the achievement of goodpractice outcomes. The nature of the worker - young personrelationship, including boundaries. The worker’s role and compliance withorganisational policies.13

The following quotes from frontline workers andmanagers across Queensland express thesetensions in their own words.Accept the young person’s assessment andgoals. Inject realismWe are supporting a young single mum at home withher baby. She wants to be a lawyer. The AOD workeris trying to respect her goals and engage her in apathway for this through Distance Education! Howabout we start with finishing year 10?Let young people do it their way. Subtlyguide and manage themOne of the girls we work with was put on adultprobation. She found out she might be beingbreached, and was worried she might be arrestedat the probation office where she needed to go foran interview. We worked really hard to get her to godown to the probation office, but when we walkedin the girl turns around and tells her AOD workerto shut up. The probation officer challenges herand it all starts to go downhill. We know that she isemotionally damaged and that she lashes out beforeshe conforms - but other agencies and workers justsee her behaviour and try to sanction it or containit. It’s hard. We often have to step in and managethe young person and the situation in a way thatreduces tension but is still in their best interests.It’s about getting young people to take baby steps about empowering them to make progress and notblow it all up.Be supportive. or openly challenge themIn this work you sometimes have to challenge whata young person is doing or saying they are goingto do. It is difficult to do that effectively withouthaving built up a relationship. Our relationship is likehaving “money in the bank” to withdraw when theyare challenged. I call it ‘Dancing at the ATM’. At thebeginning I have to build up a relationship. When Ihave a lot of money in the bank through building therelationship I can make a ‘withdrawal’. It is possibleto try things to see how much I can withdraw it’s about how much you can challenge them atparticular times. You can build your money backquite quickly - but often I see workers ‘withdrawing’before they have enough ‘money in the bank’.14Clear limits, rules and sanctions. Promotinggood longer term outcomesThere is a 20 year old girl who is a regular paintsniffer who we have had to ban. We virtually neverban so this is big - but her emotional regulationstuff is so variable and she becomes so disruptivethat we have to do something. We have a greatrelationship with another service and she goes therewhen she is banned here. We make sure she is notbanned from both services at the same time and upsupport to the other service in creative ways to helpthem maintain her with that service. We will alsofund her to return to distant but supportive familywhere there are other supports when everyone isgetting burnt out.Working flexibly and relationally .Maintaining appropriate boundariesBoundary issues crop up all the time in this typeof work. You know, driving them to appointments,helping them move house, assisting them to pick uptheir belongings etc. What happens when this beginsto feel less like intentional casework and more likea personal assistant? On one or two occasions I’vefelt like I’ve inadvertently helped a young personscore or deal drugs when in my head I was buildinga relationship by “helping” them sort out stuff theyneed to do. It gets really tricky when you’re sittingby yourself in a work car outside a house that yourclient has just entered to pick up their bag or collectsome belongings and you begin to suspect thatthey’re actually scoring or using drugs. And thenthey come back looking a bit affected and you’refeeling pissed off because you think you’re beingused and when you challenge them they get theirback up and deny it, and then you’re left with a trustissue hanging between you. It’s really challengingstuff.

Self determination by young person.Over-riding self determination because of riskof harm to others or selfSometimes it can be difficult when you work ininformal or semi-structured environments, suchas public-space or ‘street-based’ outreach. It canbe heaps easier to build rapport and trustingrelationships when they feel safe and have a greatersense of control, but what do you do when thoseyoung people begin drinking, smoking pot or talkingabout their drug deals in front of you. And whatdo you do when a young person asks you for oneof your cigarettes? Might be good for building arelationship, but is it condoning or tacitly supportingunhealthy behaviour?Always being too busy. Taking time to orient,reflect, understand and let young people getcomfortable with youAt the drop in centre new workers need to moveslowly at the start. You can’t push the relationship.You can try to build rapport as quickly as possible butyou can’t do it quicker than they are ready for. Thatapplies to the skills of the new workers as well as theyoung people.Wishes / expectations of a young person .Wishes / expectations of parents / guardiansI’m working with a 15 year old young womanwho was referred to me by her parents for usingillegal drugs. Her parents want her to attend AODcounselling and abstain from drug use or they willreport her to the police. She doesn’t want to stopusing drugs and begs me not to tell her parents. Iconsider her usage to be risky and that she wouldbenefit from some harm minimisation information,but her parents won’t support this. How should iproceed? and what should i tell her parents next timethey ask me how she is doing?Individual focus.Relational focusSometimes a simultaneous focus is best. We workwith a sister who has taken on the care of her twobrothers. She is the key client. But it is easier andmore productive to work with all three rather than justone. So we work with all of the siblings and try to fitthat into the program and funding criteria.Comply. Not comply?The organisation has a ‘two worker’ policy in termsof home visits. But sometimes we just don’t havethe resources to do this and as a key worker I haveto decide if I am going to keep faith with the youngperson and the family. It may have taken ages toset up a meeting with the father and then somethinghappens and the other worker or Coordinator isn’tavailable. Sometimes in practice timing is everything.When should I reassess risk and not comply with theorganisational policy if it is prudent?Amount and focus of organisational policies.Good judgement and skillsWe have so many policies and procedures it isimpossible for a new worker to be across them all.And some of the time our policies don’t quite matchup with policies of other agencies we are workingclosely with. At the end of the day we need workerswho have a good sound way of working, can problemsolve, work well with young people, and who can dealwith complex demands.15

Providing information to authorities that mayhelp a client. Gaining prior informed consentReducing harm. Complying withexpectations of statutory authoritiesOften my role involves being at the SpecialCircumstances Court and I’ll be called in front ofthe Magistrate. It’s very informal and they ask youquestions on the spot. When you know the detail ofthat young person’s story you know they have achild at home, or an abusive partner, or they havea parent to look after, yet they need to go todetox it’s very, very complex. And we are tryingto advocate for them in a way that has the bestoutcome for them and maintain a relationship withthem at the same time in a way that we don’t blowthe trust.Jake, a 15 year old male, has been referred bythe court through Youth Justice to attend AODcounselling and abstain from drug use as part ofhis conditional bail. Jake doesn’t want to attend andknows that his Youth Justice Case Manager will bechecking his attendance. Jake doesn’t talk much insession. He states he has given up all that stuff. itwas easy!Helpful case notes. Anticipating forceddisclosureOne of the tensions for me is when we write casenotes, which we do straight onto a database torecord information that’s helpful. They tell an honestkind of story, a narrative about how a person ismoving through their contacts here so that otherworkers can pick up on that at any time, and possiblypeople who follow us working with that person aswell. Plus at the same time having a realisation thatthere’s a possibility that these case notes could besubpoenaed and, you know, appear in the context ofa person being prosecuted or in terms of child safetyand those kinds of things.How do we best support and provide a health serviceto a young person when they feel they can’t engageand be honest in a counselling session out of fear ofthe courts finding out?As a health service, how can we provide harmminimisation information when the young person hasbeen directed to abstain? How can we report back tothe courts what we have provided (even though it isgood practice and part of health legislation), when itis in conflict with the directives of the court?Young person’s wishes and needs. Wishesand needs of other clients and workersWhenever we run groups there will be instanceswhere group and individual considerations pull you indifferent directions. We take a “principles approach”to running groups so we can process issues in waysthat young people can learn from. But it is still hardsometimes.At work one day there was a young man in thewaiting room having a personal argument on hismobile phone, loudly swearing and shouting. This wascausing other workers and young people discomfort.We wanted to engage the client and respect that hewas angry and trying to argue out a situation withsomeone, however we also wanted to contain thebehaviour and make sure that we had a safe placefor other clients and service-users. We interruptedhim and said that this was not ok because it wasaffecting other people, but then also gave him thechoice to continue the conversation outside or in aprivate room.16

The need to consider others in the communityI’d take them to the movies, a theme park, or to the beach – that sort of thing. The young people would oftenbe really excited, but sometimes their behaviour would be very boisterous. It can be really challenging andembarrassing when you’re out in public with a group when they stand out like sore thumbs and they’re noisyand you’re worrying if you should give up on the trip. You’re concerned about working within the organisationalpolicies and also worried about what the public are thinking. But you also know that this is how they live theirday-to-day life and to expect them to be totally ‘perfect’ even for some of the time is fairly unrealistic.Limitations arising from the way practice is conceptualised, undertaken and/or resourced.The funding context, the organisational context, the particular model of service, and the service system canbe experienced by workers as being in tension with the achievement of good practice outcomes.Our organisation engages young people really well but there is a scarcity of AOD services in the community,so others want to refer to us all the time. We often get the really hard young people with really complex needs.There are limits to how well we can respond within our resources. But there is often the expectation that wewill. How do we decide who we take on and who we say no to?We are funded to provide services to young people in a particular age range. But sometimes we get asibling group with younger ones and feel they have to be all worked with together. Other times it might bethat the young person will benefit enormously if we use our connection with them to support a parent who isstruggling. The funding sometimes doesn’t acknowledge the full range of work we need to do and this cancreate real issues for us.These are just some of the many tensions and dilemmas a practitioner may face in the course of theirday-to-day work. This Guide will hopefully canvass some of the key legal, ethical and organisationalconsiderations that can assist this practitioner to negotiate their way through these situations. Throughthoughtful consideration, exploration, engagement with clients and appropriate discussion with colleagues andmanagers, a way forward often emerges in cases like these.17

Section 2Incorporating legal and ethicalconsiderations into decisionmakingLegal and ethical considerations exist in all aspectsof practice. These considerations commence fromthe moment a worker is employed by an organisationto fulfil a certain role. As a worker begins engagingdirectly with a young person, it is important thatthey understand and appreciate legal and ethicalresponsibilities that come with their role.2.1Understanding the nature of theprofessional relationship in a particularpractice contextIt is important to recognise that the professionalpractice relationship is ‘bounded’ which meansit operates within boundaries derived from theparticular role that the worker is sanctioned ormandated to undertake in particular situations.Questions to ask in understanding your role andmandate include: What is the situation? What is my role in such a situation? What mandate/s do I have to practice in thissituation and where is this derived from? What purposes, and whose purposes do Iundertake practice for? What types of relationships do I engage in, andwhat are the boundaries to these? What power (for example discretion) do I have andhow do I exercise this?18The mandate of a practitioner derives from therole or roles they are employed and/or endorsed toundertake, and how these interface with a particularpractice situation. For example, are you employedas a youth alcohol and drug specialist, or are youa generalist youth worker? Are you specificallyemployed to provide counselling or does your rolerequire you to do something else altogether? Thismandate can change from one practice situationto another. Having a legitimate, clear and sharableunderstanding of your mandate for intervention is afoundation for ethical practice.The bounded nature of this mandate meanspractitioners have boundaries within which theymust practice so as to preserve the confidenceand trust of those who they are working with. Theypractice not in their own interests, but for the benefitof others.2.2Key questions and considerations fordecision makingThe following table depicts some key questions theworker should ask when undertaking practice, as wellas some of the possible considerations or tensionsto be mindful of. These questions also provide astructure for the rest of this Guide.

Table 1: What does a worker need to consider in working through practice tensions?QUESTIONPOSSIBLE CONSIDERATIONS (more than one may apply)The level of autonomy and self determination to afford the young personWhat aspects of this situationshould I be concerned about,The nature of my relationship with the young person, includingor d

Material in this Guide should never be taken as providing you or any other person with legal advice. Legal advice regarding the application of the law to a particular circumstance or situation can only come from a legal practitioner. A range of sources for legal advice can be found in the Guide.

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