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In the Field

The Law & You Psychiatric patients are by now clearly owed due process of law. You can't just subject them to any old sort of treatment, like in the bad old days of closed backwards. But what about school children? "What?" you say, "we're in the education business. So why do we have to be conscious of the law?" Well, that depends upon how you look at it. So argues Jeffrey N. Wherry who is with the Department of Pediatrics at the University of Texas Medical Branch. When it comes to special ed students, and if we're using behavioral modification methods on them, that line between "treatment" and "education" becomes a thin one. If anything, he notes, we may be on the more vunerable side of that line, legally speaking. Writing in a recent issue of Psychology in the Schools (20, Jan. 1983), Wherry notes that the authority of medical institutions is derived from the doctrine of parens patriae. That concept holds that the state has the obligation to step in and protect the interests of those, like psychiatric patients, who cannot take care of themselves. Educators derive their legal standing from the concept of in loco parentis, which holds that when a student is in school, teachers stand in the place of his parents. Curiously, although psychiatric hospitals generally dispense stronger medicine, the courts have more closely scrutinized agencies subject to the in loco parentis doctrine. So now that schools have begun, to introduce the methods of medicine, it is reasonable to expect that they will soon see the courts asking them to justify their methods. For instance, Wherry observes that the courts don't allow students to be excluded from school simply for being troublemakers anymore. They have to be given the opportunity to show why they should not be expelled. But how about a student who is in a behavior modification program and is given "time out?" Psychologically, the justification might be something like: "We needed to remove him from the reinforcing mechanisms of his peers, so that they wouldn't continue to support his inappropriate behavior." But will the courts see it that way? Or will they rule that "time out" is just the same old, arbitrary exclusion of troublemakers trucked out in new linguistic dress? Up to this point the case law isn't clear, or indeed extensive enough for us to be able to say. So, a word to the wise: If behavior methods are a part of your special ed service, it may be wise to protect yourself from potential legal action by observing a few cautions. 1) Make sure you can justify your treatments by demonstrating their potential efficacy. 2) Try to have the parents' informed consent. 3) If you use "time out," limit it to reasonable durations. 4) Restrict the use of any methods which could be seen as punishment to instances where a student's behavior is clearly disruptive to the rest of the class.