Monday, April 30, 2012

GALs and the Question of Oversight and Supervision


GAL oversight and GAL supervision in Maine pose some tough issues for all of us to consider, the principle one being, What do we mean by GAL oversight?

Generally, the word, oversight has three definitions: (a) watchful and responsible care, (b) regulatory supervision, (c) inadvertent omission or error. In the interests of simplicity, we'd opt for (b) regulatory supervision. And we'd say that one model for this is the example of the various licensing boards in Maine.

The Maine licensing boards, which cover the base GAL professions, social work, psychology, law and medicine, seem to be a fairly straight forward operation for those professionals, who are not GALs. They issue licenses and renewals to those various professionals who meeting statutory standards, and they handle complaints from the public. Their complaint process is fairly uncomplicated. The staff are definitely user friendly and helpful. We have wondered before why they aren't allowed to handle GALs from the various professions over which they have oversight?  We have largely covered this topic in an earlier blog, but we continue to believe that Maine's licensing boards, if allowed, would be the best place for GAL oversight with some tweaking of current law.  

At the present, the best they can do is to review a complaint about one of their licensees, who is a GAL, and if there appears to be a serious professional malfunction, dismiss the case, but doing so without prejudice.  This means that such a complaint can be re-examined, using the same complaint data, by the licensing board, after it has jumped through all of the Judicial Branch hoops.  

GAL supervision is a  more complex issue.  Conceptually, one is looking at the idea of supervising "an officer of the court" who is appointed - not employed-  by the court, whose fees come from consumers who are adversaries of each other, and who may themselves in the end be adversaries of the GAL.  Then, there is the child who is supposed to be the GAL's primary client and, finally, there is the judge.  Who exactly is the GAL working for?  Does anyone know for sure?   Would a GAL supervisor need to evaluate the GAL's handling of each of these separate  relationships?  What would be the chain of command for a supervisor? 

There are a number of serious questions about this complex, often conflicted set of relationships that seem to go unanswered.  For example, who owns the highly sensitive, private  information about the family, and who can give permission for a GAL to share it with a GAL supervisor who is unknown to the parties? The court, the GAL, the clients, the child?  What happens to any idea of confidentiality in all of this?  What is the liability of a potential GAL supervisor, if there are complaints of malpractice by a GAL?  Is a putative GAL supervisor responsible for reporting malpractice to the authorities?   Are GAL supervisors in a position similar to Catholic bishops in cases of clergy abuse?  Is there is legal immunity claimed by a GAL supervisor, if so, where does it come from and what is its extent?  Does malpractice insurance cover GAL supervisors?  Can a supervisor who is also, say, a lawyer,  an advocate. a lobbyist and a promoter of the GAL industry, also provide objective supervision on the work quality of a colleague?  Isn't there an inherent conflict in these roles, and isn't conflict likely to happen?   We think that there is a lot of role conflict, and we seriously doubt that any putative GAL supervisor will rat on a defective professional buddy.  So, in the light of these issues, what exactly does supervision of a GAL mean?

There is another hazard for those GALs who are both lawyers and GALs, who are in a GAL supervision situation, be it individual supervision or group supervision.  What are the guarantees that a practicing lawyer will not gain access to highly volatile information that may give them an advantage in another, separate adversarial situation involving one of the parties under other circumstances?  From almost every perspective the problems of GAL supervision are fraught with difficulties. 

Any supervision plan for GALs needs to start with the question: "Supervision about what?"  It is our opinion that any form of supervision must start with the statutory job description that defines a GAL's functions.  Is the GAL performing these functions?  Do they need improvement?  Are there problems of malpractice?  What is the supervisor to do in each situation?    Designing a supervisory process has to back into design from mandatory GAL functions.  Any design for supervision will need encoding for standardization and periodic review.  It is of critical importance to remember that this is supervision in a legal system; not for  a mental health clinic, and the requirements of a  legal context must be a central part of supervisory design.  We would strongly urge the Judicial Branch to seek  out of state consultation on this matter.  Otherwise incest is apt to be rampant.

As a relatively small state, Maine tends to be a very "cozy" state, and  this coziness is prone to make for blind spots in designing oversight and supervisory systems.  The use of outside experts and the addition of input from local consumers is one way of designing a system that is less geared to the special interests of GALs - and more fair and friendly to others.

15 comments:

  1. The idea of group supervision by a group of fee for service GALs, including Maine lawyers, done without client's knowledge seems loaded with privacy, confidentiality, conflict of interest issues and not in the best interest of consumers.

    It is like a stealth break into your e-mail or your private records. Do GALs inform their clients about this and get permission or release of information?

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  2. Could this be considered a form of identity theft?

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  3. It looks like you lose your life when you have a GAL. It is the secrecy that seems unfair to clients.

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    1. It does feel as though I have lost "custody" of my life.

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    2. Open and fluid communication between both opposing parties would help alleviate any kind of strain that the parties are going through it would help in building trust that has been damaged. When the person who is supposed to provide this information does not it creates a situation where the sides are at increased odds with each other and potentially the GAL. You are correct in that you have lost a part of yourself to this person.

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  4. The statutes covering GAL's confidentiality need clarification that consumers can understand. Right now it seems like double talk.

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  5. What exactly is meant by group supervision of GALs? What is the goal? Do supervisors have liability for GAL malpractice?

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  6. Can consumers report GAL malfunctioning to GAL supervisory groups?

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  7. Can a supervisory group be subpoenaed to testify in GAL malpractice complaints?

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    1. Currently there is no supervisory group. Under the current set up if there were a supervisory group I feel it would be very difficult. You would probably have the same chance of a successful subpoena against your GAL.

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  8. The concept of private, fee for service GALs that conduct group supervision, shadowing or consulting, or other forms of practice education, raise many questions about specific goals and directions (essential purpose?) of such groups, their authorization, sponsorship and legal standing to say nothing of how they justify their free access to private, privileged information. Without a clearly defined purpose, guidelines, standards in writing and without some formal legitimation from clients and the law, they risk appearing to the public to be some sort of coffee klatch, which meets to compare notes about the rigors of being a GAL.

    In our opinion they would need quality assurance oversight too!

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  9. Can I complain to the GAL group supervisors about my GAL? Will they be able to straighten her out or get her removed from the roster?

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    1. The Maine Guardian ad Litem Institute offers supervision to their members. This is not officially sanctioned by Maine's Judiciary. Because it is not official it is undefined and there would be questions on liability. What would happen if a GAL under this supervision is at fault does the Institute bear liability also? What happens to the personal information that is discussed? These are questions that need to be addressed.

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  10. Who are the group supervisors for GALs? How can they be contacted?

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  11. Wouldn't anyone or any group doing supervision, or shadowing or other forms of experiential teaching need a license or certificate indicating a recognized base of knowledge, skill and experience as a GAL teacher/role model? Who would certify such activity? Would it be recognized by other states? What would it mean when there is currently no Judicial Branch oversight and GAL role definition is under dispute?

    How would a consumer perspective be in any design to address the meaning and legal questions surrounding confidentiality and access to very sensitive personal information?

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