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Legal notes: representing recent immigrants.

Record-high immigration marked the 1990s, with more than 13 million people entering the United States. According to Census 2000, there were 31 million immigrants in the country, representing 11 percent of the population. Unfortunately, though, many of our newest residents have endured extreme trauma to get here. And the increase in immigrants is testing our health care and social service institutions' goal of providing quality care and access for all. As human service workers are aware, recent immigrants are likely to have fewer marketable skills, lower incomes, and a weaker command of English than those who have lived here longer.

Human service workers in organizations involved with resettlement represent these new immigrants, sometimes even before they actually arrive. Certain ethical concerns recur when an immigrant is assisted by a worker:

* The family or sponsor may disagree as to what the immigrant needs.

* There is a language barrier that is mediated with assistance from a relative.

* Confidential information may be secured through the relative acting as an interpreter, yet the relative may not feel bound by principles of confidentiality.

* The worker may not be able to accurately ascertain the immigrant's mental capacity to make decisions. These situations, among others, pose a challenge to the human service worker--to act on the client's behalf while not inadvertently compromising the client's best interest. Of greatest importance is to remember the immigrant, not the relative or friend, is the client. Loyalty to the client clearly dictates that any differences of opinion between the parties must be resolved in favor of the client. If there is a need to mediate disputes between client and family, this should be undertaken carefully. At all times, the worker is the client's advocate, not merely an intermediary. Failure at mediation may result in a loss of the client's confidence and justified recrimination. The more disagreement there appears to be between the client and the relative, the less the worker should act as mediator.

If there is a language barrier between the client and the worker, how can the worker be sure the client is competent to make various decisions? Remember, communication problems should not be mistaken for incompetence. In law, notwithstanding legal incompetence, a client "often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. Furthermore, to an increasing extent, the law recognizes intermediate degrees of competence" (Rules of Professional Conduct).

The right to self-determination may still be viable despite a client's diminished capacity. There is no single, all-purpose competency test valid for all occasions. Presumed competence is the rule. Only when the employee objectively perceives that the client's decision-making ability is in doubt in a particular circumstance should a client's autonomy be questioned. There must be a healthy respect for cultural differences, idiosyncracies, and eccentricities. To do otherwise is to risk slipping into the murky paternalism of substituted judgment.

As the National Association of Social Workers (NASW) Code of Ethics states:

* The social worker's primary responsibility is to clients.

*The social worker should make every effort to foster maximum self-determination on the part of clients.

* The social worker should avoid relationships or commitments that conflict with the interests of clients.

Unique values between ethnic groups can lead to challenging ethical problems in representing clients at all stages of the life cycle. Values regarding trust, respect, health care, and financial decision-making can be best understood through a cross-cultural ethical lens. Toward this end, the human service worker should retain the firm presumption that a client who is a recent immigrant has the capacity to make judgments and decisions that are in his or her best interest. Sticking to this principle will enable human service workers to continue to effectively advocate on behalf of their clients.

(ADD) Daniel Pollack is an associate professor at Yeshiva University in New York, New York, and senior fellow at the Center for Adoption Research at the University of Massachusetts. He welcomes your comments. He can be reached at (/ADD)
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Author:Pollack, Daniel
Publication:Policy & Practice
Geographic Code:1USA
Date:Jun 1, 2003
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