MOTHERS Act Illegal and Unethical: An Open Letter To Congress

License #1685

March 16, 2009
Re: Mothers Act (S324; HR 20)

This is a long and complicated letter and I beg for your indulgence and patience to read it.

I have grave concerns about deficiencies in the proposed Mothers Act. In brief, the Mothers Act is very likely essentially illegal and unethical (aside from serious medication issues involved). Sufficient documentation can be provided if you or others so request to support these allegations.

I am very familiar with the New Jersey Postpartum Depression (PPD) Law which is the prototype and parent of the national Mothers Act even to the point of both suggesting the same screening tool (i.e., the Edinburgh Scale). Since the Mothers Act has not become law, there are currently no rules and regulations to implement the proposed law. In my opinion, as an expert in some confidentiality issues, the current New Jersey PPD Law is illegal and unethical in terms of confidentiality and informed consent issues.

Both the NJ PPD Law and the Mothers Act have laudable goals of education and research, but my focus here is upon essential deficiencies. The most essential lack is that of lack of adequate confidentiality and informed consent procedures regarding psychological/psychiatric issues and consequences.

A distinction will be made between 2 major types of informed consent:

1) Primary, generalized informed consent as to the general process of psychiatric/psychological services.
2) Secondary, more specified informed consent as to medication issues.

Primary, generalized informed consent as to the general process of psychiatric/psychological services.

This occurs when a patient presents for psychiatric/psychological services. Legal/ethical mandates and principles require that the patient be informed about the nature of the services, the nature and limits of the confidentiality relationship, and the opportunity for full informed consent. There should be adequate protections and safeguards for the patient and for information revealed.

This is especially so regarding others who can obtain private information and use it against the interests of the women and families involved.

Additional special considerations and informed consent procedures apply if there are psychological assessments and release of test data. This is the case with both the Mothers Act and with the NJ PPD Law. Ideal, full informed consent should be express, written, voluntary, and informed.

There should be opportunity for thorough discussion. There should be opportunity for adequate foreign language translators when necessary.

All of the above apply, even if psychiatric medications are not being considered.

As a basis of comparison, the New Jersey PPD Law in its rules and regulations (clinical guidelines) completely fails to provide any of the provisions of confidentiality and informed consent. The New Jersey PPD Law violates federal mandates and at least 7 major principles of psychologists’ code of ethics.
It is imperative that the Mothers Act not repeat the New Jersey PPD Law legal and ethical violations in this regard.

On the sole basis of the complex and unworkable issues of generalized informed consent, some would hold that the Mothers Act should be defeated.

When compared to secondary, more specified informed consent, primary informed consent is a relatively simple situation: either legal/ethical principles are violated or they are not.

Secondary, more specific informed consent as to medication issues.

Relatively speaking, this situation can be exceedingly complex and thorny since it deals with complex issues of chemicals, medications and unforeseen consequences and effects of the medications.

A difficult question to explore is: What constitutes reasonable, comprehensive, adequate, practicable, and workable informed consent with questions/instances of medications, particularly psychiatric medications? As difficult as it is to ask this question, it is even more difficult to create adequate, workable everyday procedures and documents of informed consent.

Many medical specialists (e.g., psychiatrists, neurologists, pediatricians, obstetrician/gynecologists) as well as non-medical practitioners in mental health fields view with alarm not only the mere possibility but also the high probability that many women will be readily persuaded or ensnared or railroaded into taking psychiatric medications that have been demonstrated to create serious, enduring medical conditions in these very women and their children. If you so wish, extensive documentation can be provided in this regard.

For many, the unforeseen consequences and the potential medical harm to mothers and their children is the “clincher” to completely abolish the Mothers Act.

Impressions and conclusions.

In the Mothers Act, the screening process is not part of the problem—the screening process is the problem, to paraphrase an expression. The attempted cure (i.e., the screening process) is worse than the disease being addressed. Paradoxically, the Mothers Act potentially can do more harm than good for women and their children. At the very minimum, laws and proposed laws should be both LEGAL and ETHICAL.

Course of action.

The most sensible course of action is to abolish the Mothers Act, particularly because it is modeled after the New Jersey PPD Law which is markedly defective legally and ethically. In addition, the Mothers Act creates extensive vulnerabilities and liabilities for women and their families.

This letter is compressed and condensed. Many questions may occur to you and others. As stated previously, if need be, others or I can provide substantiating documentation.

Thank you for your attention. Please take prudent action regarding the proposed Mothers Act.

Sincerely yours,
Michael G. Zampardi, Ph.D.

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