Sunday, April 22, 2012

GAL confidentiality is nothing more than a mirage

Confidentiality is one of today's hottest, "hot button" issues.  In medical, financial  and credit systems, to name just a few, there are stringent efforts made- required by legislation- to protect personal data. This is a key part of preventing identity theft and protecting privacy, and it is rightly a big concern for consumers of any service. Who has the "right to know" my private, personal information; who may access it?. There are elaborate releases of information required for most systems. In the case of the highly sensitive information collected by GAL, we feel no sense of confidence that privacy is guaranteed. 

As we read the statutes, GAL case-confidentiality is "mostly" confidential. The statute starts out bravely with a call for confidentiality, but it quickly morphs into sanctifying the GAL's personal opinion about who needs to know. Below are two excerpts from the Guardian ad litem standards in Maine. You be the judge about these twisted statutes.

6.2 Confidentiality. A Guardian ad litem shall observe all statutes, rules and regulations concerning confidentiality. A Guardian ad litem shall not disclose information or participate in the disclosure of information relating to an appointed case to any person who is not a party to the case, except as necessary to perform the Guardian ad litem's duties, including those referenced in Standards.

And.... the unchallengeable claim of "best interest of the child"

3.2, 5.2 and 5.3, or as may be specifically provided by law. Communications made to a Guardian, including those made to a Guardian by a child, are not privileged and may or may not be disclosed to the parties, the Court or to professionals providing services to the child or the family based on the Guardian's evaluation of the best interest of the child. A Guardian's notes and work papers are privileged and shall not be disclosed to any person.

As we read it GAL the confidentiality statute appears loaded with circular reasoning and quite dependent on a GAL's personal opinion. It includes the paradox that the most likely victim of "confidentiality" might be one or both parties; especially, if the GAL uses that old, frequently defensive, self-serving mantra, "not in the child's best interest"!

Another questionable activity that may well infringe on any pretense of GAL confidentiality, is the free sharing of GAL client cases in monthly, Maine Guardian ad Litem Institute group  supervision meetings. This along with the use of the Institutes members and leaders for consultation about "difficult cases".  This study group sharing is unknown to the parties and done without permission from them to reveal details of their case.  Many GAL's are attorneys, if they participate in these case study groups, they might coincidentally be gaining knowledge about a case that might give them an advantage in court.  Maine is a small state, stories are distinctive, even if names are altered in discussions, identities may be hard to disguise. 

The concept of any form of technical case "supervision" by a trade organization, like the Maine Guardian ad Litem Institute, which in another context advocates for and defends its GAL members in a number of different political and legal situations, strikes us as fraught with conflicts of concept, design and interests. This to say nothing of shattering any recognized standard concepts of confidentiality! The normal arm's length attitude required to offer objective technical case supervision is lacking in a trade organization, which appropriately aims at defending and protecting its members. 

One cannot but wonder who created these wide open confidentiality statutes for GAL's? They clearly give GAL's a handful of trump cards, and may effectively turn "confidentiality" into whatever a GAL wants it to be. We feel that consumers have no privacy protection. GAL reform needs to bring the off-beat standards of GAL "confidentiality" into line with those in the rest of the world.

On matters of GAL confidentiality, as on many other issues, the Judicial Branch has been badly missing a consumer perspective on the issues.

12 comments:

  1. Has my case been discussed by MEGALI in their group discussions? How can I find out?

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    1. For a moment think of this. If I were a member of the Guardian ad litem Institute and a lawyer involved in a case that had a GAL. That GAL also a member asked for help on a case that was difficult and was the same case I was involved with. Does this mean I have to remove myself from the discussion? What advantage might I gain from being a part of this discussion? Would I remove myself from the case? Should the GAL remove him/ her self from the case? This sounds like a recipe for abuse from many different sides.

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  2. Sorry these are legitimate questions but only MEGALI members might answer. You might ask Toby Hollander, President of MEGALI. Contact information is on their web site.

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  3. Does MEGALI'S supervisory group share liability for violations of confidentiality or for claims of harm/damage arising out of their advice? Is this a form of group management?

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    1. GALs operate with no limits as to what they can do. There are no controls over how they operate. Judges are constrained as to what they can do and how they operate. Judges are held accountable for their decisions. GALs are not. I ask you where would you look for abuse - The Judge or GAL?

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  4. You'd have to ask the Chief Justice of Maine's Supreme Court. Right now she has her hands full.

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  5. MEGALI's supervisory groups and its consultation on difficult cases may well put them in a difficult liability position. It is like the Catholic bishops having legal liability for parish priests who are accused of abuse. Is Toby Hollander and the board of MEGALI, in a similar place to the Catholic bishops when they advise/supervise GAL members?

    Do they have liability insurance for this sort of supervision and consultation?

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  6. GALs should be required to obtain a signed release of information from clients any time they want to share information with anyone, including judges, so-called group supervision, and "difficult case" consultation. It would track disclosure and protect privacy. Release of information staqndards should be as stringent as those in the financial, credit and medical fields.

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  7. Very nice article. Try and get the emails, phone records and other stuff from a Guardian that you have a right to have without a court order and you will run into constant obstacles. You are entitled to anything that the GAL has sent to the other lawyer, court etc. I have requested mine many times and received nothing to date. I am writing letter to Judge to have it ordered that I receive the paperwork.

    I am sure MEGALI is well aware of my case.

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    1. BLT you are correct in that you are entitled to everything the GAL has done with the exception of the GALs notes. Do not be surprised though if the GAL and Judge prevent you from obtaining that information as it may not be in "the child's best interest" to release the information.

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  8. This idea of "in the child's best interest" can be a racket. Any GAL who chooses not to cooperate with a client can drag out "not in a child's best interest (to cooperate)"!! There is no way of getting around this "best interest claim". The GAL is the one who decides.

    Crazy? Yes, but there is a lot of "Crazy" in the current Maine GAL system!

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  9. well if the masses of people keep questioning why the system is broken, perhaps we will get this fixed one day.

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