The Mothers Act—Fruit of the Poisoned Tree
Michael G. Zampardi, Ph.D. and countless others
The expression, “fruit of the poisoned tree”, is known to many of us from television shows about police, lawyers, and courts. In short, the expression refers to improper actions with someone such that the chain of events following the improper actions must be considered to be contaminated and to be excluded from consideration. For example, police who improperly search a person or a house or police who do not properly inform people of their rights create a “poisoned tree”. All subsequent evidence collected after the “poisoned tree” must be excluded and considered as inadmissible evidence in legal proceedings.
With this formulation, the New Jersey Postpartum Depression (PPD) Law is analogous to the “poisoned tree” and the upcoming proposed Mothers Act (S1375; HR20) is the “fruit of the poisoned tree”. The Mothers Act is a virtual replica of the NJ PPD Law (N.J.S.A. 26: 2-175; 2-176; 2-177; 2-178) and, therefore, focus will be upon discussion of the NJ PPD Law primarily. Both legislative formulations will be considered as virtually equivalent in this discussion
What is the essence of the NJ PPD Law?
The first part of the New Jersey PPD Law is concerned with educating new mothers/prospective mothers and their families about various problems/reactions that can occur before or after childbirth (actually perinatal rather than postpartum as such). The overall aims are to detect problems, to educate, and to consider treatment and access to treatment for problems uncovered. Many would consider the overall aims to be laudable and commendable.
In developing a full law, there are rules and regulations that specify how the law is to be implemented. In this law, the rules and regulations are called clinical guidelines.
The second part of the NJ PPD Law concerns itself with a screening process that also involves a screening instrument or questionnaire. It is here that the heart of the matter lies. In short, the heart of the matter centers around the following wording or script presented to the new mother or the mother-to-be:
Current wording used in PPD screening:
Instructions and wording of the script used for patients is as follows:
“The purpose of the tool will be explained to the patient using the following script:”
‘As our patient your emotional and physical well being is very important
to us. While you are here under our care, we would like to offer to you this
screening questionnaire that will help us to know if you are at risk for
developing postpartum depression. The questionnaire has 10 questions
and will take about 5 minutes for you to complete. Please take it on your
own. I will pick up the questionnaire within 15 minutes’*
*Clinical Practice Guidelines for Postpartum Depression Screening, Effective Date: January 2007, page 4.
The script may seem harmless enough, even altruistic and caring. However, the script, in effect, contains extremely serious legal and ethical violations that include but are not limited to:
1) Failure to provide full informed consent (i.e., proper consent should be express, written, voluntary, informed. At least 7 major violations of the APA Code of Ethics can be cited.).
2) Failure to provide adequate privacy and protection of client communication (e.g., ease of acquiring a serious psychiatric label and potential for abuse and misuse).
3) Failure to adhere to legal/ethical principles with resultant erosion of the quality of client services (e.g., federal mandates and ethical requirements for proper informed consent; full information about risks and benefits of the PPD screening process; need to provide an explicit option to decline services; need to provide information on alternatives to prevailing services).
To pursue the metaphor of looking at a glass as being half-full versus half-empty, the current situation involves a glass filled with a toxic beverage—half a glass of nourishing milk (i.e., the first part of the law) and half a glass containing deadly poison (i.e., the second part of the law, the rules and regulations/clinical guidelines).
Some would observe that:
NJPA (New Jersey Psychological Association) and others collaborated to produce the NJ PPD Law.
NJPA should have known about the full law, the rules and regulations (clinical guidelines) as well as the full implications of these rules and regulations.
NJPA has seriously blundered in developing this law.
(NJPA has highly trained psychologists well-versed in law and ethics at its disposal.)
One might construe that it appears that:
1) In effect, wittingly or unwittingly, NJPA has duped the citizens of New Jersey including legislators and the governor.
2) In effect, wittingly or unwittingly, NJPA has duped the American Psychological Association (APA) which subsequently supported the Mothers Act.
One might conclude that:
NJPA should be embarrassed in supporting the NJ PPD Law.
NJPA should take steps to suspend this law, pending full review and attempts to repair it.
Very likely most would hold that it is not too much to ask that, at a minimum, laws and proposed laws should be both LEGAL and ETHICAL.
Our immediate task is to halt passage of the Mothers Act, pending review and attempts to repair it.
After this is accomplished, immediate efforts should be made to suspend the NJ PPD Law, pending review and attempts to repair it.
Relevant documents will be provided, upon request, regarding assertions and issues in this paper. Write to me at email@example.com.
ACTION TO TAKE:
Notify legislators, APA, and NJPA to halt passage of the Mothers Act and to suspend the NJ PPD Law.
Feedback and comments are welcomed.
Michael G. Zampardi, Ph.D.
New Jersey Psychologist License #1685
APA Member since 1967