5320: U8 D1 When Ethics and Legalities Collide
Tierainie 
PartIIChapeters5-7.pdf
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PART II
Ethics and Standards of Practice: The Professions’ Response
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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CHAPTER 5
Ethics and the Law
Mr. Harolds: Hi, Michelle. What’s up?
Ms. Wicks: Tom, could I talk to you about some legal concerns?
Mr. Harolds: Legal concerns? Certainly, but I’m not a lawyer.
Ms. Wicks: No, I know that—but you seem to stay current with laws and regulations regarding counseling and to tell you the truth, I’m not sure if it is a problem or not.
Mr. Harolds: Well, you certainly sound concerned. What’s up?
Most mental health practitioners enter the profession intending to employ their knowledge and skills to assist those in need—not concerning themselves about the legal complications of the issues
and the people with whom they work. The reality is that, just as there are ethical principles and guidelines that need to be considered when making professional decisions, there are also legal mandates and implications of which the ethical practitioner must be fully aware.
Laws, including legislation, court decisions, and regulations, have grown both in presence and importance in the practice of human service. Many federal statutes, such as those requiring the reporting of suspected abuse or the protection of confidential records and HIPAA laws as well as case law, have impacted practitioners’ ethical judgments involving informed con- sent, conflicts of interest, dual relationships, practitioner competence, and
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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termination of services (Reamer, 2013). Issues defining the rights of clients, the rights of the practitioner, the way in which services are selected and provided, and the nature of the relationship between the practitioner and client are a1l being shaped by the professional codes of conduct and now by extension of those codes into law. Some complain that law has made prac- titioners more concerned for personal liability than client welfare. Bergantino (1996), for example, states: “In our current psycholitigious world . . . we only have left brains, and . . . only what is ‘appropriate’ is thought to constitute therapy. Forget ‘excellence’ . . . Our profession is now defined by those who want to make the world safe for mediocrity!” (p. 31).
The sad truth is that practitioners are vulnerable to legal action, and many have opted to play it safe at the expense of providing the best ser- vice for their clients. While litigation is a reality that now must be placed within the mix of professional decision-making, laws are not meant to make practitioners feel threatened. Quite often the law parallels and fur- ther codifies sound ethical practice and as such, need not induce anxiety or concern within the ethical practitioner. But there are times when the relationship between ethics and legality is not clear or in fact may appear in conflict. At those times, the question becomes, what’s the ethical helper to do?
The current chapter focuses upon the unique and ever-evolving relation- ship between professional codes of conduct and the law, in hopes of helping practitioners find an answer to this question.
● OBJECTIVES
The relationship of professional ethics and the laws governing professional practice is the focus of the current chapter. After reading this chapter, you should be able to do the following:
• Describe the obligations incurred by a helper who has established a “special relationship” with a client.
• Explain what is meant by “duty to care” and what defines that obligation.
• Describe how licensure and/or certification may lend legal power to the professional codes of conduct.
• Provide examples of ethical practice that may be i1legal and the legal requirements that may violate professional codes of ethics.
• Describe one model for identifying and resolving conflict between ethics and legality.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 5. Ethics and the Law–●–109
THE HELPING PROCESS AS A LEGAL CONTRACT ●
As a result of malpractice suits and legal actions, it is generally recognized that a professional relationship or even the perception that the relationship is a professional one constitutes the basis of the existence of legal duty to provide appropriate care for a client. The professional help giver, by the very nature of holding himself or herself out in practice, implies that he or she will conduct himself or herself in a skillful and responsible manner and will follow the dictates of that profession’s code of ethics.
The issue of whether helping is contractual and thus a minimum duty of care is established rests with the courts’ decision as to whether a “special relationship” existed that would be sufficient to create a “duty of care.” Such a special relationship can certainly be created with the use of formal treatment contracts in which the “duties” of each party are specified (see Exercise 5.1). However, the establishment of a formal contract articulating the relationship between client and practitioner or the rendering of a bill and exchange of money for services is not necessary in order to provide evidence of a special relationship and a duty to care.
A special relationship between helper and client can be established as a result of implicit acts. Courts, for example, may determine that a special relationship and thus a duty to care was established by the helper’s action of taking notes, scheduling formal appointments, and even advertising as one who can provide unique, helping services. These actions can be inter- preted as reflecting an intent to render service and thus constitute a basis of establishing the intent to form a special relationship and thus a contract to provide the care. As with many areas of law and ethics, there is no singular court case or clear directive that determines what actions, beyond a formal contract, can be used to demonstrate an intent to form a special relationship and thus a duty to provide care.
While there has not been a single court definition and ruling that provides a universal standard regarding implicit contract or duty to care, numerous state rulings have begun to give shape to this contract of profes- sional service. In what now stands as a classic case, the Supreme Court of Wisconsin (Bogust v. Iverson, 1960) ruled against the parents of a student,
Jane Dunn filed suit against the director of student personnel services at Stout State College. The parents alleged there was negligence, because the director failed to provide proper guidance or protection for the student, who committed suicide. In the ruling against the parents, the Wisconsin Supreme Court referred to the defendant as a teacher and not a counselor and as such reported no special relationship had been established. “To hold that a teacher who has no training, education, or experience in medical
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Exercise 5.1
The Use of Contracts: Formal and Informal
Many mental health practitioners, as a reflection of their concern to assist clients to be fully informed, have begun to provide clients with “contracts” of service. These contracts can be more or less formalized, ranging from simple information sheets with identified fees, cancella- tion policies, and so forth, to a formal statement requiring signatures and witnesses from all parties involved.
Directions: Contact each of the following: (a) a residential treatment program or hospital, (b) a free clinic, (c) a private practitioner, (d) a university counseling center, (e) an elementary or high school counseling center, and (f) a local church or religious organization. For each of these service providers identify each of the following:
• Do they employ some form of agreement or contract when pro- viding services (counseling, mental health) to their clients? If so, why, and what is included? If not, why not?
• Do they provide informational brochures or materials? Do these describe any special services that are offered and any require- ments or responsibilities of the clients?
• When they see a client, do they maintain records? Collect a fee? Schedule appointments (versus simply walk-in service)?
• Do they feel that their clients perceive that the services they offer are professional in nature, even if no fees are collected?
Share your data with your colleagues or classmates. Discuss which of the service providers appear to employ contracts or actions that would characterize them as establishing “special relationships” with their clients and therefore incurring a duty to care.
fields is required to recognize in a student a condition the diagnosis of which is in a specialized and technical medical field, would require a duty beyond reason” (Bogust v. lverson, 1960). A later ruling that suggested specialized training and credentialing were needed prior to the establishment of a special helping relationship and the duty to care was Nally v. Grace Com- munity Church. In Nally v. Grace Community Church (1988), the parents of a 24-year-old, Kenneth Nally, sued the Grace Community Church and its pastors for negligence when their son committed suicide after receiving
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 5. Ethics and the Law–●–111
several years of informal counseling. Kenneth also saw secular psychologists and psychiatrists during these years, and following an unsuccessful attempt at suicide in 1979, his parents rejected the recommendations of a psychia- trist to have him committed. This recommendation was also made by one of the pastors of the church and similarly rejected. The California Supreme Court ruled in favor of the church and its pastors because it found that there was no duty of care that was breached by them and no special relationship that would create such duty. In this case, the California court made a distinc- tion between non-therapists, counselors, and professional therapists—such as psychiatrists or certified psychologists and counselors. Since the pastors were non -therapists without the requisite special relationship, the court did not find or impose the duty of care. These two rulings appear to point to the essential need to be recognized as a professional helper as defined by one’s credentials, such as licensure, as the basis for a special relationship and to identify that duty to care has been established. However, in Eisel v. Board of Education of Montgomery County (1991) new legal precedent was set.
As noted, previously the courts did not find a duty of care in situations in which a non-professional attempted to provide help to a client. This was true even in situations in which an outpatient client who may have been suicidal was seen by a school counselor. However in the Eisel case, the court noted a special relationship sufficient to create a duty of care when an adolescent in a school setting expresses an intention to commit suicide and the counselor becomes aware of such intention. In Eisel, the court noted that the school, as a result of standing in loco parentis, does have a special duty to exercise reasonable care to protect a pupil from harm. Further, the relationship of school counselor and pupil is not devoid of therapeutic over- tones, as suggested by the counselor’s job description. Thus in addition to pointing to special training, licensing, and certification, the existence of a special relationship and the duty to care can be established based simply on the job definition from which one provides service. Eisel (1991) strength- ened counselors’ legal obligation to students by satisfying for the first time the first element of negligence and declaring that school counselors have a special relationship with students and owe a duty to try to prevent a stu- dent’s suicide (Stone, 2003).
Another approach to the definition of a special relationship between helper and client bases it on the principle of fiduciary responsibility. Anytime an individual places his or her trust in a party who has the potential to influence his or her action, a fiduciary relationship exists (Black, 1991). In the case of mental health provision, the counselor or therapist becomes a “fiduciary,” in that the helping relationship requires that the client have confidence and trust in the recommendations that are being made by the practitioner (Simon & Shuman, 2007).
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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When a fiduciary relationship exists, a practitioner has these obliga- tions (a) to act with good faith and loyalty toward a client (McInerney v. MacDonald, 1992); (b) to not abuse the power imbalance by exploiting the client (Norberg v. Wynrib, 1992); and (c) to act in the best interest of the client (Hodgkinson v. Simms, 1994).
While the anxiety surrounding the possibility of litigation may serve as a motive for practitioners to be more fully aware of the law applicable to their practice, knowledge and awareness of the law is a professional respon- sibility regardless of anxiety. Professional codes of conduct direct practitio- ners to know and practice in ways consistent with the law. For example, “psychologists’ fee practices are consistent law” (APA, 2010, 6.04.b).
● THE LEGAL FOUNDATION OF ETHICAL PRACTICE
The process and relationship between health and human service profession- als and their clients is increasingly shaped by law. Issues such as informed consent, confidentiality, and competency as well as mandates, such as the mandated reporting of child abuse and duty to warn, are significant influ- ences on the practice of human service (see Case Illustration 5.1). In addi- tion, courts of law can employ regulatory and ethical standards for health and human services professionals as ways of identifying negligence, malprac- tice, and liability.
Case Illustration 5.1
The Changing Face of School Counseling
The following was the result of an interview with Mr. L., an elementary school counselor. Legal precedents relative to Mr. L.’s comments have been inserted.
Well, I’ve been an elementary school counselor now for over 23 years, and I can tell you my job and my strategies in working with children have changed dramatically as a result of litigation. I mean, there was a time when I first started that if a kid was acting out or causing a real disruption in a classroom, we could simply have him removed, suspended, as a way of providing a “wake up call.” Try that now and you will find yourself sued. Everything requires DUE PROCESS now.
In 1975, the Supreme Court ruled in Goss v. Lopez: “Due process requires, in connection with a suspension of 10 days or less, that the
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 5. Ethics and the Law–●–113
student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story’’ (p. 581). This even gets to the point that you start to worry about using “time out” proce- dures, because it may be argued that you are excluding a child from his right to have an education. I don’t know, I feel like I should have become a lawyer rather than a counselor.
Goss v. Lopez (1975) focused on exclusion from an education, and while it did not define or give examples of de minimis punishments that would not require due process, they probably would include practices like after school detentions or “time outs” or even temporary exclusion from extracurricular activities.
And another area that you have to be super cautious about is record keeping. I mean, it used to be that my records were confidential, and no one had access. Now I feel like any one can waltz in and see my files, since they are school files. Where’s the privacy? A lot of the counselors in our district simply keep special files or school-only files that parents don’t have access to.
The Family Educational Rights and Privacy Act (FERPA) provides parents and students 18 and older with certain rights with regard to the inspection and dissemination of “education records.” As a federal law, it applies to school districts and schools that receive federal financial assistance through the U.S. Department of Education. FERPA makes clear that all education records, no matter where they are stored or how they are identified (i.e., “school only”) must be made available. However, not all information obtained by a counselor need be dis- closed. The legislative history of FERPA clarifies that education records do not include the “personal files of psychologists, counselors, or professors if these files are entirely private and not available to other individuals” (120 Cong. Rec. 27, 36533 (1974).
Codes of ethics provide guidelines for practice decisions; however, they are not binding unless they are otherwise codified or incorporated into law. Granted, professional associations have the power to sanction their mem- bers for unethical practice, via admonishment, suspension or expulsion. But the extent of the sanctions is limited, and such sanctioning does not auto- matically imply legal action. The professions’ codes of conduct, however, do often provide the basis or at a minimum a standard for developing laws and regulations that govern the practice of that profession. In most states, the ethical principles and standards of practice have been incorporated into laws
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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114–●–ETHICAL PRACTICE IN THE HUMAN SERVICES
or regulations that not only govern requirements for certification or licensure but serve as consumer laws governing the practice of mental health services (Bennett, Bryant, VandenBos, & Greenwood, 1990). While this may vary state by state, it is important for all engaging in mental health services to under- stand the relationship of ethical code to legal mandate (see Exercise 5.2).
Exercise 5.2
State Laws Codifying Professional Ethics
Directions: Licensed psychologists, in some states, will find that a violation of their code of ethics places them at risk not only of facing sanction of the board, but also of prosecution by the state in which they practice.
Contact the department of state, the attorney general’s office, or the department of license and measurements for your state and do the following:
• Inquire if your state licenses mental health professionals. If so, which professions?
• What does the law say about the practice of those within that profession who are not licensed or about those from other pro- fessions who practice within that state?
• Request a copy of the licensing law within your state.
• Inquire if the code of ethics for your profession has the force of law within your state.
While the professional codes of conduct have been incorporated into laws, in some cases, the reverse has been true; that is, the legal system has stimulated mental health professions to develop and enhance their ethical standards. Mental health professionals employ sensitive and careful ethical practices to ensure that clients will not hurt themselves or others. The steps taken to warn and protect potential victims of dangerous clients are clearly integrated into all professional standards of conduct and were stimulated by the landmark decision surrounding the Tarasoff v. The Regents of the University of California (1976) court case (see Chapter 9). An illustration of how case law has given shape to ethical principles of practice can be found in Case Illustration 5.2.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 5. Ethics and the Law–●–115
Case Illustration 5.2
The Issue of Duty to Warn
Jonathan was referred to Dr. Ranklin, a licensed psychologist who pro- vided services to employees of Company L. as part of its Employment Assistance Program. In the initial session, Dr. Ranklin explained his role and the fact that he was contracted by Company L. to provide employ- ees with brief, solution-focused counseling and referral. Dr. Ranklin also described the conditions of confidentiality and provided Jonathan with an information sheet about the services available.
During the initial session, Jonathan revealed his intent to “get even with Alex” (his immediate supervisor). When asked what “get even” meant, Jonathan stated, “Alex has been on my case ever since he became a supervisor. He thinks he’s hot stuff, better than the rest of us. He keeps calling me lazy and asks if I’ve seen the shrink yet; he told me he made the referral to you. Anyway, he does this stuff in front of the other guys and I have had it. I’m just going to wait for him one night this winter, when it’s dark, and get him out in the parking lot.”
When asked if he could provide more information about what it was he was planning, Jonathan went into great detail: “I know where he parks and he always leaves just around 5:45, after most of the guys have cleared out of the lot. I’m going to be waiting for him. I’ll just hide in the dark and when he goes to get into the car, I will whip him terribly. I’ve got an ax handle with his name all over it. I’ll crack that dumb head of his and then we’ll see who’s crazy. If he dies, that’s his problem.”
Throughout the session, Dr. Ranklin attempted to gain a guaran- tee that Jonathan really wouldn’t do what he was saying, but each time Jonathan insisted that he would and that Alex deserved it. When reminded of the “limits of confidentiality” that Dr. Ranklin explained and that were listed in the handout, Jonathan said, “I don’t care. You can tell him or anyone. He deserves it and I’m going to give it to him.”
Since all attempts to persuade Jonathan to commit to not harming Alex were unsuccessful, Dr. Ranklin felt duty bound to protect his cli- ent (Jonathan) from legal action and his identified victim (Alex) from potential harm. Thus, he made an appointment to meet with Alex to disclose this information.
(Continued)
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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116–●–ETHICAL PRACTICE IN THE HUMAN SERVICES
Dr. Ranklin’s actions were stimulated by the now famous Tarasoff (1976) case and subsequent state case laws in Nebraska where he practiced. Dr. Ranklin knew that while confidentiality was an ethical directive, in Nebraska, therapists are required to initiate whatever precautions are necessary to protect the potential victims of the patient (Lipari v. Sears, Roebuck & Co., 1980).
(Continued)
Many of the ethical principles to be discussed and illustrated within the upcoming chapters have strong legal foundations. Thus, in addition to providing a review of the principles, some of the laws and court decisions that tint or give further shape to the application of these principles will be discussed. Table 5.1 provides a thumbnail view of a couple of these legal decisions and their impact on professional practice.
Ethical Does Not Always Equal Legal
While codes of ethics most often overlap with legal requirements, they are distinct from them and in some cases, may be in conflict. The potential for conflict has been recognized within the American Psychological Associa- tion code of ethics (2010), which states:
Table 5.1 Examples of Laws as Foundation for Ethical Practice
Ethical Issue Legal Rulings
Boundary Violations
A number of rulings (e.g., Mazza v. Huffaker, 300 S.E. 2d 833, [1983]; Horak v. Biris, 474 N. E. 2d 13 [1985]) argue that due to the power differentials within the relationship and the potential for abuse of power, sexual relationships between client and practitioner are actionable as malpractice.
Competence The foundation for negligence is based, in part, on the failure to use knowledge, skill, and care ordinarily exercised in similar localities (Carlton v. Quint, 77 Cal. App. 4th 690, 699 (2000) [91 Cal. Rptr. 2d 844]).
Confidentiality Duty to break confidence in service of the duty to warn was established in Tarasoff v. The Regents of the University of California 551 P.2d 334 (Cal. Sup. Ct., 1976).
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 5. Ethics and the Law–●–117
If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights. (APA, 2010, Principle 1.02)
Unethical, Yet Legal
Conflict can occur when a practitioner’s decisions are unethical and yet remain legal. For example, in most states it is not legally mandated that a practitioner inform a client of the limitations to confidentiality or how confidential information may be used, but many professional codes of ethics require that such limitations be clearly described to the client (see Table 5.2).
Ethical, Yet Illegal
There are times when a practitioner’s actions may be considered illegal yet fall within the codes of ethical conduct. Consider the situation in which a client with AIDS refuses to inform an identified sexual partner about the AIDS or take steps to protect that partner. Although disclosure of a client’s status as having AIDS or being HIV positive without that client’s permission is illegal, in many states, the ethical duty to protect third parties from harm may direct the practitioner to disclose this information to the current sexual partner.
Table 5.2 Notification of Limits to Confidentiality
Professional Ethical Standards Statement of Notification
American Psychological Association (2010)
4.02.a. Psychologists discuss . . . (1) the relevant limits of confidentiality and (2) the foreseeable uses of the information generated through their psychological activities.
b. Unless it is not feasible or is contradicted, the discussion of confidentiality occurs at the outset of the relationship and thereafter as new circumstances may warrant.
(Continued)
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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118–●–ETHICAL PRACTICE IN THE HUMAN SERVICES
Professional Ethical Standards Statement of Notification
National Association of Social Workers (2008)
1.07 Privacy and confidentiality
d. Social workers should inform clients, to the extent possible, about disclosure of confidential information and the potential consequences, when feasible before the disclosure is made. This applies whether social workers disclose confidential information on the basis of a legal requirement or client consent.
e. Social workers should discuss with clients and other interested parties the nature of confidentiality and the limitations of clients’ right of confidentiality. Social workers should review with clients circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. This discussion should occur as soon as possible in the social worker–client relationship and as needed throughout the course of the relationship.
American Counseling Association (2014)
A.2.b. Types of information needed
Counselors explicitly explain to clients the nature of all services provided. They inform clients about issues such as, but not limited to, the following: the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services; the counselor’s qualifications, credentials, relevant experience, and approach to counseling; continuation of services upon the incapacitation or death of the counselor; the role of technology; and pertinent information. Counselors take steps to ensure that clients understand the implications of diagnosis and intended use of tests and reports. Additionally, counselors inform clients about fees and billing arrangements, including procedures for nonpayment of fees. Clients have the right to confidentiality and to be provided with an explanation of its limits, including how supervisors and/or treatment or interdisciplinary team professionals are involved, to obtain clear information about their records, to participate in the ongoing counseling plans, and to refuse any services or modality changes and to be advised of the consequences of such refusal.
A.2.d. Inability to give consent
When counseling minors, incapacitated adults, or other persons unable to give voluntary consent, counselors seek the assent of clients to services and include them in decision making as appropriate. Counselors recognize the need to balance the ethical rights of clients to make choices, their capacity to give consent or assent to receive services, and parental or familial legal rights and responsibilities to protect these clients and make decisions on their behalf.
Table 5.2 (Continued)
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 5. Ethics and the Law–●–119
Professional Ethical Standards Limitations to Confidentiality
American Psychological Association (2010)
4.05.b.
Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose, such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the client/ patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve that purpose.
National Association of Social Workers (2008)
1.07. Privacy and confidentiality
c. Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons. The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person. In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.
American Counseling Association (2014)
B.2. Exceptions
The general requirement that counselors keep information confidential does not apply when disclosure is required to protect clients or identified others from serious and foreseeable harm or when legal requirements demand that confidential information must be revealed. Counselors consult with other professionals when in doubt as to the validity of an exception. Additional considerations apply when addressing end-of-life issues.
American Association for Marriage and Family Therapy (2015)
2.2. Written authorization to release client information
Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law. Verbal authorization will not be sufficient except in emergency situations, unless prohibited by law. When providing couple, family, or group treatment, the therapist does not disclose information outside the treatment context without written authorization from each individual competent to execute such a waiver. In the context of couple, family, or group treatment, the therapist may not reveal any individuals’ confidences to others in the client unit without the prior written permission of that individual.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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It is clear that the relationship between law and ethics is not always clear-cut. In the most desirable state, our professional ethics and the law are in concert, as is the case when maintaining confidentiality is protected under the law. And while it is clear that actions that are both illegal and unethical must be avoided, clarity is blurred in situations where one’s ethi- cal directive runs contrary to a legal mandate, as might be the case where a professional feels it is essential to a client’s welfare to maintain confidential- ity even when confronted with a court order.
Ethical and legal standards are by their very nature broad in spirit and language, thus open to situational interpretation. As a result, practitioners must remain informed about the legal interpretations of the applications and misapplication of the ethics of practice and practice decisions as they continue to unfold through legislation and court decisions.
● WHEN ETHICS AND LEGALITIES COLLIDE
When ethics and law collide, the practitioner will need to use his or her own sense of judgment about the issues and directions to be taken. Such judgment should be formed on accurate understanding of the specific ethi- cal principles involved and the laws governing practice decisions. As noted previously, psychologists confronted by such a conflict are directed to “clarify the nature of the conflict, make known their commitment to the Eth- ics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code” (APA, 2010, Principle 1.02). While the mental health practitioner is not called upon to be a legal expert, it is important that the practitioner have some knowledge of court rulings (local, state, and federal), since such rulings provide the precedents for future actions by the courts. Clearly, the better informed a practitioner is, the more likely conflicts between legal and ethical principles can be resolved.
It is generally believed that mental health professions have an obligation to abide by the legal requirements of the situation. This obligation is most often considered as prima facie, meaning that the legal obligation needs to be considered in every case and only set aside when ethical and/or legal reasons of greater importance compel such action. However, the unique- ness of each situation and the characteristics of each client complicate the decision to be made.
There may be situations in which, even with the greatest understand- ing of both the law and the ethical principles, a clear path resolving the conflict cannot be found. It is possible that the action mandated by law
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 5. Ethics and the Law–●–121
may not appear to be in the best ethical interest of the client. Such a con- flict places the mental health practitioner in quite a moral and professional dilemma. This would certainly be the case for the counsellor attempting to protect confidentiality of her client with HIV/AIDS while at the same time being sensitive to her duty to warn a third party of potential harm (Alghazo, Upton, & Cioe, 2011). Under these situations, it is the responsibility of the professional to review all of the pertinent information, discerning which avenue both upholds the intent of the law and essence of the profes- sions ethics while providing the maximum benefit to the client. It will be essential for the mental health practitioner confronted by such dilemmas to employ a well-developed decision-making model. While this topic of ethical decision-making and models that serve that purpose is presented in Chapter 7, it is worthwhile to review one somewhat classic approach as offered by Remley (1996).
Remley (1996, p. 288) provides four steps for counselors to take when confronted by an apparent conflict between ethics and the law. These steps have been adapted and are listed below:
1. The practitioner should identify all of the forces that are impacting issues regarding the professional decision and behavior. While the conflict may certainly be the result of an ethical principle or a legal mandate, other forces, such as policies and procedures within a specific workplace, accreditation rules or requirements, and even parameters for funding, may be the source of the conflict rather than the law.
2. When the question is one of law, legal advice should be obtained. Quite often the state or national associations may provide legal con- sultants who are trained in both the mental health field and the legal profession. Another source of legal advice may be obtained through one’s liability insurance company.
3. If there is a problem in applying an ethical standard or in understand- ing the requirements of an ethical standard, the practitioner should consult with a colleague and those perceived as experts within the field. Again, it is also useful to contact the local, state, or national associations and speak to members of the ethics board.
4. If a force other than law or ethics (for example, employment require- ments) is suggesting that a practitioner take some action he or she perceives as illegal, the counselor should obtain legal advice to deter- mine whether such action is indeed illegal and what form of recourse or protection is available should the counselor refuse to follow the directive to perform this illegal act (see Chapter 6).
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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The need for ethical practitioners to remain informed as evolving ethics receive the force of the law through court decisions and/or evolving law gives new shape to codes of conduct cannot be overemphasized. Fortu- nately, practitioners are not alone in their concern and their quest. State and national associations, along with liability insurance companies, provide continuing education programs to update the practitioner’s knowledge and may even provide consultation services in case of conflict. The final exercise (Exercise 5.3) is provided to help increase your awareness of the supports available to assist you in becoming both an ethical and legal practitioner.
Exercise 5.3
Resources in Support of the Ethical-Legal Practitioner
Directions: It is essential to remain informed about the changing face of law and codes of professional conduct as you continue to develop and practice as a helper. Ongoing information and continuing education pro- grams are often provided by state and national associations along with the various companies providing liability insurance for your profession. Similarly, these same resources oftentimes provide “hotline” consultation for their members who may feel conflicted about a practice decision.
• Contact your state organization and inquire about its website or ways that you can be informed about state legal decisions that may impact your own professional practice. Ask if you can be placed on a mailing list or list-serve announcing continuing education programs geared to updating practitioners on relevant law and ethical principles of practice.
• Contact your national organization and inquire about its website or ways that you can be informed about recent legal decisions impacting your practice and continuing education programs geared to updating practitioners on relevant laws and ethical principles of practice.
• Contact your liability insurance carrier and inquire whether it provides continuing education programs on issues of ethics and legality and if it provides a discount for those who attend.
• Contact each of the above and inquire about the availability of legal assistance or ethical-legal consultation should you have a question or conflict. Identify the process for connecting with this service as well as any fees that may be involved.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 5. Ethics and the Law–●–123
CONCLUDING CASE ILLUSTRATION ●
Returning to the scene with which we opened the chapter, we find Ms. Wicks (Maria’s counselor) sharing concerns with a colleague. As you read the exchange, look for issues of an ethical nature, issues or concerns that may, in your opinion, have legal foundation and/or implications, and the existence of conflict between Ms. Wicks’s ethical standards and the law.
Mr. Harolds: Hi, Michelle. What’s up?
Ms. Wicks: Tom, could I talk to you about some legal concerns?
Mr. Harolds: Legal concerns? Certainly, but I’m not a lawyer.
Ms. Wicks: No, I know that, but you seem to stay current with laws and regulations regarding counseling, and to tell you the truth, I’m not sure if it is a problem or not.
Mr. Harolds: Well, you certainly sound concerned. What’s up?
Ms. Wicks: Well, I’m not sure actually. I’ve been counseling a student who shared with me that she is currently dating and having unpro- tected sex with a boy whom she reports as having AIDS. She’s 18, and the information was revealed to me in my role of coun- selor. I am not sure if I am legally responsible to report this.
Mr. Harolds: Did you share your concern with your client?
Ms. Wicks: Yes, and she simply states that she doesn’t care. You know, this is love, and God wouldn’t punish her by letting her get AIDS.
Mr. Harolds: Wow, that’s sad. Michelle, when you first met with her, what instructions did you give her regarding the limits to confidentiality?
Ms. Wicks: Tom, I know I explained about disclosing information if she informed me of her intent to harm her herself, but I’m not sure how this fits.
Mr. Harolds: This is tough. After all, she’s your client, not the boy. I know individuals with AIDS have a right to privacy, but she is placing herself in harm’s way. I don’t really know. Why don’t we call the state board and ask to speak to one of their ethical-legal consultants? Remember, I told you I wasn’t a lawyer!
Ms. Wicks: Tom, I just appreciate you hearing me out and confirming for me that this is not so clear-cut. I agree that calling may be the thing to do.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Reflections
1. Do you feel that Ms. Wicks should have gotten Maria’s consent to speak with Tom?
2. Do you feel that the specific information shared with Tom was a viola- tion of Maria’s right to confidentiality?
3. Do you feel that the potential for conflict between law and ethics exists in this case? If so, where? If not, why not?
4. How do you feel about the fact that Ms. Wicks contacted a colleague in a situation like this? Is there anything else she should have done instead or in addition?
● COOPERATIVE LEARNING EXERCISE
The purpose of the chapter was to familiarize you with the unique and sometimes conflicting relationship between law and professional codes of ethics. Because they are broadly stated, both ethical and legal standards are open to situational interpretation. The remaining chapters provide more detailed information about specific, ethical principles and laws applying to those guidelines.
Below you will find three scenarios. Along with your colleagues, read each scenario and identify whether you feel they present issues that are free of conflict or represent a conflict of law and ethics. Where conflict exists, identify the nature of the conflict. Is it legal and unethical, illegal and ethical, or unethical and illegal? Next, contact a professional practitio- ner in your area and ask him or her for an opinion about the nature of the situation. Finally, as you read more about specific ethical principles in the upcoming chapters, return to these scenarios to see if your initial opinions change.
Scenario 1: A girl, age 13, comes to a school counselor and asks for advice and direction on where and how to go about securing an abortion. The school counselor gives her the names and numbers of a number of agen- cies that counsel women seeking an abortion. The school counselor also promises the student not to inform her parents. Was the decision a conflict of law and ethics? If so, what was the nature of the conflict? Which part of the counselor’s behaviors or decisions were conflictual?
Scenario 2: A Vietnam War veteran voluntarily contracted for coun- seling with a licensed social worker for what was determined to be post- traumatic stress disorder. In the process of therapy the vet reported his
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 5. Ethics and the Law–●–125
intention to kill some college students who, according to the vet, prolonged the war through their protests. When asked to identify the specific students, the client simply said, “It doesn’t matter as long as they are in college.” The therapist did not take steps to inform anyone about this threat. Should he? Is there a conflict of law with ethics? If so, what is the nature of that conflict?
Scenario 3: Dr. Ortez works in the counseling center at a local univer- sity. Dr. Ortez had provided career counseling for a graduate student named Liz. It has been a year since Liz has graduated and over 15 months since her last session with Dr. Ortez. Dr. Ortez calls Liz to inquire how she is doing and, while on the phone, asks her on a date. Did Dr. Ortez violate any ethical principles? Any laws?
SUMMARY ●
• In performing one’s practice, the helper provides implicit agreement of his or her duty to the client.
• The issue of whether helping is contractual and thus a minimum duty of care is established rests with the court’s decision as to whether a “special relationship” existed that would be sufficient to create a duty of care.
• Anytime an individual places his or her trust in a party who has the potential to influence his or her action, a fiduciary relationship exists (Black, 1991).
• Given this definition, it could be reasonably argued that all profes- sional helping relationships have this fiduciary responsibility.
• In most states, the ethical principles and standards of practice have been incorporated into laws or regulations that not only govern requirements for certification or licensure but also serve as consumer laws governing the practice of mental health services.
• While codes of ethics most often overlap with legal requirements, they are distinct from them and in some cases may be in conflict.
• When ethics and law collide, the practitioner will need to use a good decision-making model to guide decisions and directions.
• Remley (1996) provided four steps that counselors should take when confronted by an apparent conflict between ethics and the law: (1) Identify the forces that are at issue, (2) obtain legal advice, (3) consult with colleagues or experts in the field of professional eth- ics, and (4) seek legal advice, when forces other than law and ethics are at the core, in order to understand available options.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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● IMPORTANT TERMS
Bogust v. Iverson implicit acts
contractual legal precedent
duty beyond reason Nally v. Grace Community Church
duty to care prima facie
Eisel v. Board of Education principle of fiduciary responsibility
ethical, yet illegal unethical, yet legal
● ADDITIONAL RESOURCES
Corey, G., Corey, M., Corey, C., & Callanan, P. (2015). Issues and ethics in the helping professions with ACA 2014 Codes (9th ed.). Stamford, CT: Cengage Learning.
Fischer, L., & Sorenson-Paulus, O. (1996). School law for counselors, psychologists and social workers (3rd ed.). White Plains, NY: Longman Publishers.
Pope, K. S., & Vasquez, M. J. T. (2016). Ethics in psychotherapy and counseling: A practical guide (5th ed.). John Wiley & Sons.
Stone, C. (2013). School counseling principles: Ethics and law (3rd ed.). Alexandria, VA: American School Counselors Association (ASCA).
Swenson, L. C. (1997). Psychology and law for the helping professions. Pacific Grove, CA: Brooks/Cole.
Woody, R. H. (1997). Legally safe mental health practice: Psycholegal questions and answers. Madison, CT: Psychosocial Press.
Web-Based
American Counseling Association. (n.d.). NEW ACA 2014 code of ethics: A 6-part webinar series. Retrieved from https://www.counseling.org/continuing- education/ webinars/new-aca-2014-code-of-ethics-a-6-part-webinar-series
American School Counselor Association. (n.d.). Legal and ethical specialist training. Retrieved from http://www.schoolcounselor.org/school-counselors-members/ professional-development/asca-u/legal-specialist-training
Counseling Today. (2015). Tag archives: Ethical and legal issues. Retrieved from http://ct.counseling.org/tag/ethics-legal-issues/
Social Work Ethics and Law Institute. (n.d.). http://socialworkers.org/sweli/default.asp Stone, C. B., & Zirkel, P. A. (2010). School counselor advocacy: When law and ethics may
collide, 13(4), 244–247. Retrieved from: http://www.jstor.org/stable/42732954
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 5. Ethics and the Law–●–127
REFERENCES ●
Alghazo, R., Upton, T. D., & Cioe, N. (2011). Duty to warn verses duty to protect confidentiality: Ethical and legal considerations relative to individuals with AIDS/ HIV. Journal of Applied Rehabilitation Counseling, 42(1), 43–49. Retrieved from http://search.proquest.com/docview/859615858?accountid=34899
American Psychological Association. (2010). Ethical principles of psychologists and code of conduct. Retrieved from http://www.apa.org/ethics/code/principles .pdf
Bennett, B. E., Bryant, B. K., VandenBos, G. R., & Greenwood, A. (1990). Profes- sional liability and risk management. Washington, DC: American Psychological Association.
Bergantino, L. (1996, Fall). For the defense: Psychotherapy and the law. Voices, 29–33.
Black, H. C. (1991). Black’s law dictionary (Abridged, 6th ed.). St. Paul, MN: West Publishing.
Bogust v. Iverson, 102 N.W.2d 288 (Wis. 1960). Carlton v. Quint, 77 Cal.App.4th 690, 699 (2000) [91 Cal.Rptr.2d 844]. Eisel v. Board of Education of Montgomery County, 68, 130,135. Goss v. Lopez, 419 U.S. >565 (1975). Hodgkinson v. Simms, 117 DLR (4th) 161 (1994). Horak v. Biris, 474 N. E. 2d 13 (1985). Mazza v. Huffaker, 300 S.E. 2d 833 (1983). McInerney v. MacDonald, 93 DLR (4th) 415 (1992). Nally v. Grace Community Church, 47 Cal.3d 378 (1988). Norberg v. Wynrib, 92 DLR (4th) 449 (1992). Reamer, F. G. (2013). Eye on ethics: Essential law in social work ethics. Social Work
Today. Retrieved from http://www.socialworktoday.com/news/eoe_101813 .shtml
Remley, T. P., Jr. (1996). The relationship between law and ethics. In B. Herlihy & G. Corey (Eds.), ACA ethical standards casebook (5th ed., pp. 285–292). Alexandria, VA: American Counseling Association.
Simon, R. I., & Shuman, D. W. (2007). Clinical manual of psychiatry and law. Washington, DC: American Psychiatric Publishing.
Stone, C. (2003). Suicide: A duty owed. ASCA School Counselor. Retrieved from https://www.schoolcounselor.org/magazine/blogs/march-april-2003/suicide-a- duty-owed
Tarasoff v. The Regents of the University of California, 551 P.2d 334 (Cal. Sup. Ct., 1976).
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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CHAPTER 6
Conflict: The Reality of “Being Ethical” Within the Real World
Ms. Wicks: Hi, Tom it is me again.
Mr. Harolds: Hey, how are you? Did you get that information from the state association?
Ms. Wicks: Not yet. They are supposed to call me. But, things are getting more confusing . . .
Mr. Harolds: Really?
Ms. Wicks: Ms. Armstrong, the principal at the school, informed me that it is understood in the district that we are not to counsel students regarding sexual issues. She said it is not a formal policy, just something that “we” all know not to do. So, I’m not sure if I broke a law or violated a code of ethics or may have stepped over the line in terms of my job definition. I am so confused!
When working with a client, a helper needs to be aware of and sensitive to the many individual issues and concerns presented by the client. In addition, the helper also needs to be fully cog-
nizant of the ethical and legal implications of his or her own professional
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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decisions in relationship to these client concerns. Now, to complicate mat- ters even more for those practitioners working within an organization or a system, be it a school, a hospital, an agency, or a company, individual prac- tice decisions must also reflect and be congruent with policies, procedures, and informal standards and values operating within that system.
The current chapter looks at the ethical culture of social systems and the influence it exerts on the practice decisions of those helpers working within that system. The chapter will discuss the impact of working for and within an organization. Further, in this chapter we will look at situations in which conflicts arise when what the professionals feel is best for the indi- vidual client falls outside of or even runs contrary to policies, procedures, or values of the organization. Under these conditions, what’s a practitioner to do?
● OBJECTIVES
The chapter will review the process and implications of making ethical practice decisions within an organizational or system context. Attempting to balance the needs of the individual client with the requirements of the employing organization and other interested parties (e.g., managed care organizations) is not an easy or clear-cut process. After reading this chapter you should be able to do the following:
• Define what is meant by “system culture.”
• Discuss the impact of system culture on ethical decision-making.
• Identify possible points of ethical conflict when working in a man- aged care environment.
• Identify possible points of ethical conflict when working with third- party payees.
● SERVING THE INDIVIDUAL WITHIN A SYSTEM
Professional practice does not occur within a vacuum. At a minimum, pro- fessional practice occurs within the social context of a client and a helper. But for those working within an organization, professional practice and ethical decision-making occurs not only within this dyadic system but also within the context of the larger system or organization in which the helper works. Ethical problems in professional practice are often the result of the confluence of context, setting, and standards of practice. Practitioners who
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 6. Conflict–●–131
work in schools, clinics, or hospitals, and/or those who serve as providers for managed care can find themselves in conflict with these competing cli- ent systems (see Case Illustration 6.1).
Case Illustration 6.1
A Diagnostic Dilemma
Linda Alfreds is a new school psychologist, the first ever employed by the Hallstead School District. Linda’s job involves performing all psycho-educational assessments, especially those required for special education placement. Linda was informed, however, that with the excep- tion of a few “slower” children, the district really didn’t have children with special needs, which according to the superintendent was a blessing, since they have very limited monies for providing such services.
Linda was asked to see Marquis, a transfer student, who was reported as having difficulty keeping up with the work in a number of his classes. The test data presented Marquis as an impulsive child, with a significant receptive language problem. From her work at a previous school district, Linda knew that Marquis would benefit from placement in a resource room with a special education teacher trained in learning disabilities and language disorders.
Linda discussed the situation with her department chairperson and was told that the district did not have resource room personnel. However, the other middle school in the district did provide a classroom for “slow learners.” The chairperson directed Linda to record Marquis as being retarded rather than as having a language disability, since this would at least get him some special services. It was clear to Linda that the data would not support this diagnosis, but identifying the child with a language disability might fail to provide any special teaming assistance to Marquis.
Certainly the school psychologist presented in Case Illustration 6.1 is confronted with a serious ethical and potentially legal dilemma. As in this case, practice decisions must clearly reflect not only the needs of the client as well as the characteristics and orientation of the helper but also the unique characteristics and demands of the context or organization in which the helping occurs. Balancing all of these unique needs is not always easy or clear-cut. The ethical practitioner needs to be aware of the system and the subtle and often times not so subtle influences that a system can exert. Such an awareness begins with an understanding of the nature of systems.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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As used here, a system is “an entity made up of interconnected parts with recognizable relationships that are systematically arranged to serve a per- ceived purpose” (Kurpius, 1985, p. 369). As one of the interconnected parts within a work setting, the human service provider needs to fully understand the roles enacted, the relationship that exist, the values and assumptions that support these relationships, and the degree to which all of these exert pres- sure on the performance of one’s duties. One cannot be an ethical-effective provider of service without full awareness of the system and system dynamics in which he works
It is not unexpected that when working in a system with multiple con- stituents that conflict in performance of one’s duties may emerge. This may occur in a situation of a school counselor who feels that what is best for the student may be contrary to the policy or procedures of the school, for whom they work. Or it is possible that one working in an employee assistance pro- gram (EAP) might experience the pressure of a divided loyalty. When under contract to provide employees services, one might feel a strain between the desire to maintain employee confidentiality while understanding that the contract exists with the employee’s place of business, and there may be a legitimate need to know on the part of that employee’s manager. Under these conditions, information regarding the client’s treatment as related to job performance may be within the need to know and thus conflicts with the client’s right of privacy and confidentiality. The practitioner, while respect- ing the confidentiality of the information gathered, needs to be sensitive to the obligations agreed to in contracts with the organization. The EAP coun- selor described in Case Illustration 6.2 appears to have developed a plan for balancing the needs of the organization with the rights of the client.
Case Illustration 6.2
Balancing the Needs of the System and the Client: A Case of Confidentiality
Hanna Johannsen was a private practicing mental health counselor who was certified as an EAP counselor. In addition to seeing clients for a fee, Hanna provided EAP services to the members of a local school district. In this EAP capacity, Hanna received a contracted fee and was to provide three to five sessions free of charge to any school district employee who desired such counseling. In addition, should additional counseling be desired or required, Hanna would make a referral to another provider, and the employee would then be responsible to con- tinue on a fee-for-service basis.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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ETHICAL CULTURE OF SOCIAL SYSTEMS ●
As part of the contract with the school superintendent, the EAP counselor was to provide monthly reports that included (a) the number of people seen, (b) the specific school in which the employee worked, (c) the job class (i.e., teacher, administrator, staff, etc.), (d) the type of problem presented, (e) the number of sessions utilized, and (f) and evaluation of the outcome. While the specific names of clients and any details of the nature of the problem presented were not to be disclosed, Hanna felt that the information requested was such that it could jeopardize the confidentiality of those who utilized this EAP service.
Hanna worked out a compromise with school administration so that all first sessions could be made completely confidential. In that first session, as part of setting the boundaries of confidentiality, Hanna explained to each client the types of data she would reveal to the superintendent and asked the client for their informed consent before making additional appointments. If the client would not give that consent, Hanna would provide a referral list and share no information about the contact with the central office.
Organizations—or for that matter, any social system (e.g., families)—develop their own values or standards that guide decision-making and practice within that system. These values, which may take form explicitly in an organization’s value statement or implicitly as behavior guiding day-to-day decisions, serve as a core to what has been described as systems culture (Schein, 2010). Schein described system culture as a “pattern of shared basic assumptions that the group learned as it solved its problems of external adaptation and internal inte- gration, that has worked well enough to be considered valid and, therefore, to be taught to new members as the correct way you perceive, think, and feel in relation to those problems” (Schein, 2010, p. 18). The assumptions that serve as the base for the development and maintenance of a system’s culture form the unquestioned, non-debatable truths and reality of people within the system. These develop when a solution or procedure works repeatedly. As a result, those involved begin to take it for granted to the point where what was once only a hunch or possibility starts to get viewed and treated as a reality. These basic assumptions then serve as the foundation from which the system defines structures and processes to guide its operations. This is an important concept for the ethical practitioner to grasp, because when members of an organization embrace these assumptions, they in turn shape what the mem- bers value and the form these values take (see Exercise 6.1).
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The cultural values of a system become enacted in the way mem- bers prioritize and function-shaping policies, decision-making, and other operations. Practice decisions, therefore, may begin to reflect institutional values and organizational ethics more than they represent “best practice” or codes of professional conduct. While it is possible that organizational ethics can parallel those of the profession, in view of the fact that the purpose of an organization may be different than the purpose of any one helping relationship, the organizational ethics may not only be conflictual but may act to undermine the values and ethics of the practitioner (see Exercise 6.2).
While it is clear that the ethical practitioner must be aware of the often- times subtle influence of a system’s culture on his or her practice decision,
Exercise 6.1
Making Culturally Compatible Choices
Directions: Below is a table that provides a social context, a focus for a practitioner, and two practice decision options. Along with a col- league, select the options that you feel would most likely be encour- aged and/or supported by that particular social context and provide your rationale for your selection.
Social- Organizational Cultural Context
Focus for Practice Decision
Practice Decision Options
Selection and Rationale
(sample) Catholic High School
Increased evi- dence of stu- dent pregnancy
1. Guidance unit on sex- ual behavior, safe sex, and sexually transmitted diseases
2. Guidance unit on self- esteem and value of abstinence
Option 2, given the school’s belief that sex outside of marriage is unaccept- able and immoral
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Social- Organizational Cultural Context
Focus for Practice Decision
Practice Decision Options
Selection and Rationale
A free-standing clinic that is funded primar- ily through managed care contracts
A client diag- nosed as depressed, with the possibility of having an early history of sexual abuse
1. Referral for anti-depres- sant medica- tion
2. Contract for long term, “recovered memories’’ therapy
A military industrial com- plex, making “sensitive’’ technical equipment
A personnel director who is approached by an upper level manager experi- encing extreme financial pres- sures and who has had fantasies of “selling tech- nology” to other governments
1. Respect the confidential- ity of the rela- tionship and work with the employee on stress reduc- tion
2. Report the fantasies to his supervisor
A public school, with limited spe- cial education facilities and funding
A school psy- chologist who believes a student is in serious need of ongoing indi- vidual psycho- therapy
1. Recommend therapy to his family as part of an Individual Education Program
2. Suggest that his family may find it useful to con- tact an out- side therapist
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Exercise 6.2
Goals: Values and Decisions
Directions: As noted within the chapter, decisions are made that not only reflect the values held, but the goals desired. Below you will find a scenario, system and practitioner goals, and decision options. Your task is to identify the decisions preferred by the system along with those preferred by the practitioner. Next identify the situations in which these are parallel or in conflict.
Scenario System Goals
Practitioner Goal
Decision Preferred by System
Decision Preferred by Practitioner
Parallel or Conflict
1. (sample) Star football player has a very bad sprained ankle.
Win the big game
Rest the ankle
Allow the student to play
Sideline the student for one game
Conflict
2. The top salesman for a corporation has embraced his alcoholism and is committed to a treatment program.
Maintain sales
Maintain salesman’s health
Adjust sales region to allow salesman to attend meetings while continuing sales
Encourage and support in attending meetings
3. A social worker noted that a fifth grade teacher who is approach- ing retirement has a number of physical prob- lems, has been falling asleep in class, and often verbally abuses the children for making noise.
Educate children in fulfil- ment of the schools mission
Protect children from verbal abuse and show concern for an aging teacher with ill health
Try not to make too public for the remain- der of the semester and then provide the teacher with an early retire- ment pack- age
Work with the teacher in develop- ing some cooperative learning units while providing supportive counseling around the benefits of retirement
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Scenario System Goals
Practitioner Goal
Decision Preferred by System
Decision Preferred by Practitioner
Parallel or Conflict
4. A residential setting for individuals with severe emotional problems
To provide therapy while at the same time reducing patient disruption
To provide therapy geared at empower- ing individ- uals to take responsi- bility for their own actions
Reliance on medication including sedatives
Using the minimum amount of medication in order to support the client’s development of cognitive/ behavioral methods of control
the question remains: “If enculturated, how does one identify the operating assumptions, values, and culture?” It has been suggested that the use of inter- pretation of the artifacts and values reveals basic assumptions (Schein, 2010). Artifacts would include the visible, tangible, or concrete manifestations, be they the physical surroundings and their appointments, the stories or oral histories still shared, and even the rituals and ceremonies practiced, whereas a system’s values are revealed in what the system views as important in terms of goals, activities, relationships, and feelings (Schein, 2010)). By review- ing the way those within the system traditionally and continually address specific problems posed by the situations they face in common, the ethical practitioner can begin to understand the system’s values.
WHO IS THE CLIENT? ●
One seminal question that needs to be addressed when working within an organization is “Who is the client?” While this at first may appear to be a simple question to answer, balancing a practitioner’s responsibility to the employing organization while at the same time servicing the individual helper seeker is not always that clear-cut or easy. The various professional organizations are aware of this potential confusion and area of conflict and have attempted to provide practitioners with guidelines for their practice decisions (see Table 6.1).
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Table 6.1 Ethics of Practice Serving Client and Organization
Professional Ethical Standards Statement on Serving Client and Organization
American Counseling Association (2014)
C.2.g. Counselors monitor themselves for signs of impairment from their own physical, mental, or emotional problems and refrain from offering or providing professional services when impaired. They seek assistance for problems that reach the level of professional impairment, and, if necessary, they limit, suspend, or terminate their professional responsibilities until it is determined that they may safely resume their work. Counselors assist colleagues or supervisors in recognizing their own professional impairment and provide consultation and assistance when warranted with colleagues or supervisors showing signs of impairment and intervene as appropriate to prevent imminent harm to clients.
American Psychological Association (2010)
1.03. If the demands of an organization with which psychologists are affiliated or for whom they are working are in conflict with this Ethics Code, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights.
National Association of Social Workers (2008)
3.09.a. Social workers generally should adhere to commitments made to employers and employing organizations.
3.09.b. Social workers should work to improve employing agencies’ policies and procedures and the efficiency and effectiveness of their services.
3.09.c. Social workers should take reasonable steps to ensure that employers are aware of social workers’ ethical obligations as set forth in the NASW Code of Ethics and of the implications of those obligations for social work practice.
3.09.d. Social workers should not allow an employing organization’s policies, procedures, regulations or administrative orders to interfere with their ethical practice of social work. Social workers should take reasonable steps to ensure that their employing organizations’ practices are consistent with the NASW Code of Ethics.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Although the various professional organizations address the issue of serving individuals and organizations, it is still for the individual practitioner to resolve questions such as, does the ethical practitioner, when working with individual members of an organization, make decisions that are best suited for the goals and objectives of the institution, even if not in the best interest of the individual care seeker? Or does the individual and the indi- vidual’s well-being take primacy? (See Case Illustration 6.3.)
Case Illustration 6.3
Who Is the Client?
Col. R. J. Wipps was a clinical psychologist working in service of the U.S. Army’s Special Service Division. Col. Wipps provided testing and individual counseling to those involved with Special Services.
Col. Wipps was approached by D. L. Kingsley, an officer in charge of a highly sensitive military project. D. L. came to Col. Wipps because of what he reported to be extreme stress as a result of financial difficulties that he was currently experiencing. D. L. noted that he was concerned that his wife would leave him if something didn’t happen soon to improve their lifestyle. When asked what he was attempting to do to resolve the financial problems, D. L. was quick to note that “nothing short of something illegal” could help. When confronted directly about whether he had considered illegal activities, D. L. stated: “Of course not . . . but I’ve been drinking a lot lately and God only knows what I could do if I get drunk!”
Col. Wipps recommended that D. L. take a medical leave while he went into a treatment program for the alcohol and also received some individual and marital counseling. D. L. said he would think about it but really did not feel that was necessary. D. L. asked if he would be able to see Col. Wipps for some counseling during this really stressful time. D. L. also wanted to be sure that the relationship would be confidential.
For Col. Wipps (see Case Illustration 6.3), questions existed about whether individual confidentiality should be respected or whether this individual posed a significant security risk and thus should be identified to appropriate personnel. In part, the answer to this question rested on whom Col. Wipps identified as his client, D. L. Kingsley or the U.S. Army. Most guidelines, like that of the American Counseling Association (ACA) (see
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Table 6.1) indicate that the client is the primary concern for the ethical helper and the institution secondary. But it could be argued that accepting a position within an organization is a tacit agreement to serve as its agent and to embrace its values and standards of practice. In fact, the ACA Code of Ethics (2014) advised that acceptance of employment is essentially an agree- ment with the principles and policies of the institution, and that “counselors strive to reach agreement with employers regarding acceptable standards of client care and professional conduct . . . ” (ACA, 2014, Principle D.1.g).
It would appear, therefore, that the ethical practitioner needs to be account- able and responsive to both the system of employment and the individual clients served within that system. As such, it is essential that the practitioner not only understand but also commit to the mission of the organization as well as the specific values underlying that mission and the ways it becomes manifested in the procedures, policies, and decision-making processes. This does not mean to suggest a blind allegiance to the organization at the cost of the individual. In fact, it can be argued that the ethical helper will attempt to change organizational policies and procedures that are not healthy for those within the system. For example, the ACA Code of Ethics states: “Counselors alert their employers of inappropriate policies and practices. They attempt to effect changes in such policies through constructive action within the organization. When such polices are potentially disruptive or damaging to clients or may limit the effectiveness of services provided and change can- not be affected, counselors take appropriate further action” (ACA, 2014, D.l.h). In a similar vein the American Psychological Association (APA) directs its members that “if the demands of an organization with which psycholo- gists are affiliated or for whom they are working are in conflict with this Ethics Code, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights” (APA, 2010). The significance of this responsibility to confront organizational policies and practices that are deemed damag- ing to clients or in some way forcing practitioner unethical behavior is high- lighted by the ACA directive that if there is an irreconcilable conflict between the institution’s practices and those standards established by the code, resig- nation from employment should be considered (ACA, 2014, Principle D.1.h).
Thus, while some practitioners find themselves feeling responsible for championing the client’s right to confidentiality in the face of the organi- zation’s rules and regulations, in some situations, this is neither legal nor ethical. For example, in the military, confidentiality is guided by federal statutes, Department of Defense regulations, and the specific service (i.e., Army, Navy, Air Force) regulations, a point that needs to be considered
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by Col. Wipps (see Case Illustration 6.3). While supporting respect for the privacy of the individuals, these directives also mandate access to confidential materials by federal employees on a “need to know” basis (Neuhauser, 2011).
An ethical practitioner attempts to resolve conflicts between organiza- tional need and individual need in a way that not only reflects the desire of the practitioner to be supportive of his or her organization but also upholds the professional code of ethics. Thus, when confronted by the desire to protect the care seeker’s privacy while abiding by the rules and reg- ulations of the organization in which one is employed, the use of advanced warning on the limits of confidentiality would be essential as a means of serving both the organization of employment and the care seeker.
When There Are Multiple Masters
Ethical practitioners will not only know the mission, objectives, and val- ues of the organizations within which they work, but will also make known to their employers the nature of their own professional ethical commit- ments. Beyond this, it appears that an ethical practitioner will also share with his or her clients the obligations of fidelity and conditions of employment and how these may flavor the helping relationships and the practitioner’s decisions. This is especially important when an organization’s disclosure policy places additional limits on the confidentiality between client and helper (see Case Illustration 6.2).
Recently, the issue of multiple clients or conflicts between the needs of an employing organization with those of the client has taken on a new dimen- sion with the introduction of managed care. Managed care is a term applied to a widespread set of attempts to contain health care costs. The term has been used to describe “any type of intervention in the delivery and financing of health care that is intended to eliminate unnecessary and inappropriate care and to reduce costs” (Langwell, 1992, p. 22). Under managed care, third- party payers review requests for the initial delivery of services, determine the volume of services to be provided, and review any subsequent requests for service. Given the level of involvement in the professional decision process, it could be argued in managed care situations the practitioner has in fact two clients, the primary client being the person seeking assistance and the second- ary client being the managed care company. The potential for conflict can arise in that the needs and goals of these two clients may not always be congruent.
Managed care is essentially an economic strategy designed to provide care of or better quality for less money. While the concept of cost contain- ment is noble, the reality is that the goals of managed care can be in conflict
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with those of the practitioner (Meyers, 1999). Metzl (2012), for example, argues that managed care’s desire to create a homogenous cost effective product or template for treatment planning, while perhaps working with the administration of EKGs to patients with chest pain are not applicable to the nonhomogenous client base presenting with depression, personality disorders, or other form of mental health conditions.
Under these conditions, the question that can arise is, at what point does the cost containment interfere with the client’s needs and the helper’s ethical practice?
Managed care may challenge the practitioner’s ability to provide ethical practice. Managed care stresses time-limited interventions, cost-effective treat- ment, toward preventive rather than remedial processes (Metzl, 2012). Profes- sional literature raises several concerns about the impact of managed care on the effectiveness of treatment provided (Roberts & Hurley, 2012). As noted by these authors (Roberts & Hurley, 2012), managed care could result in clients receiving undertreatment, in that they may go underdiagnosed, experience restricted referral, and have insufficient follow-up. Thus, the policies of man- aged care may conflict with the practitioner, especially when utilization review decisions are contrary to professional judgment or when short-term or limited interventions are inadequate forms of treatments. Ethical rules and standards are often incongruent with the realities of treatment situations. In a managed care environment with restrictions to the number of sessions allowed, adher- ing to professional guidelines for risk management and standard of care service may simply be unrealistic.
In addition to potentially restricting treatment choice, the third party review can also compromise client privacy. Given these potential areas of conflict, what is the ethical practitioner to do?
At a minimum, the ethical practitioner needs to inform clients how their delivery of services may be influenced by managed care policies and restric- tions. Our professional codes have addressed this concern by directing clinicians to provide clients information needed to understand the potential conflict and the limits imposed on practice. For example, APA directs its members as follows:
When psychologists agree to provide services to a person or entity at the request of a third party, psychologists attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes the role of the psychologist (e.g., therapist, consultant, diagnostician, or expert wit- ness), an identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality. (APA, 2010, Principle 3.07)
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A point echoed in the codes of ethics presented by the American Asso- ciation for Marriage and Family Therapy (AAMFT, 2015, Principle 1.13), beyond informing clients of the third-party relationship, practitioners are directed to gain client permission prior to any disclosure to that third party (e.g., ACA, 2014, B.3.d; AMHCA, 2010, 2.q; NASW, 2008, 1.07.h).
Another concern that can arise when working within a managed system is that of balancing the requirements of managed care’s cost containment principle with the ethical concern of providing quality of care, when such care requires extending services beyond that sanctioned by the managed care agency. How it is accomplished is truly the dilemma faced by all man- aged care providers. Do therapists continue pro bono? Do they challenge the managed care gatekeepers about artificial limits to needed care?
While the limitations to the number of sessions to be paid by insurance may make good economic and business sense for the insuring body, the question remains: What happens to the client once these limits are reached? Should the client continue to need care, the helper is ethically bound not to abandon him or her. The helper could refer the client needing additional treatment or provide pro bono services. Both strategies invite complication. How does one refer if referral sources are limited? How does one provide pro bono services to so many and survive financially? The answer may lie in the decisions an ethical practitioner makes before engaging in managed care service. Haas and Cummings (1995) advise therapists to consider the question of how to provide service to the client and how to avoid abandon- ing clients without going bankrupt before one joins a managed care plan. Understanding the nature of the managed care contract and resolving areas of professional standards of practice and care with those of economic neces- sity is a must for the ethical helper (see Exercise 6.3).
Exercise 6.3
Serving Clients in a Managed Care Environment
Directions: Contact two private practitioners who provide clinical services and are part of a managed care organization. Ask the practi- tioners each of the following questions:
• What are the limits to the types and/or length of services you can provide to your managed care clients?
• Are there are any unique limitations to the confidentiality of your records when working with managed care clients?
(Continued)
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● BEYOND PROFESSIONAL STANDARDS: A PERSONAL MORAL RESPONSE
• What, if any, avenues of appeal do you have regarding the deci- sions made by the managed care utilization review boards?
• How do you inform your clients of the special conditions regard- ing type and length of service, utilization review, confidentiality, and so forth, that may exist by the nature of providing managed care services?
• Have you turned down any opportunities to join a particular managed care group because you found it too restrictive?
• Have you been able to change any policies, procedures, or requirements in the managed care organization of which you are a part as a way of better servicing your clients?
• As a provider in managed care, what do you find to be the most challenging factor to your ability to provide ethical, professional care for your clients?
(Continued)
While it is easy to grasp and comprehend the dilemmas one may face as the varying demands, needs, and responsibilities of client, profession, and system of employment converge on a practitioner, positioning oneself to make the ethical decision may be quite another story. The existence and potential impact of these forces is not a simple intellectual or academic issue. It is a real-life dilemma that has the potential to impact the client, the practitioner, and the therapeutic relationship. Restrictions of modes and duration of treatment not only have the potential to undermine effective- ness but also can erode the professional’s personal and professional values. The limited autonomy on professional decision-making may increase the stress experienced in practice and contribute to conditions of burnout and empathy fatigue (See Chapter 14). Confronted with these conditions, the ethical practitioner may find herself confronted by a conflict between the institution’s practices and the standards established by her professional code. Such conflicts will require ethical practitioners to clarify and resolve these conflicts in a way that maximizes adherence to ethical dictates of
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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their profession. This can be facilitated by establishing a preplan of resolv- ing potential conflicts between organization and professional ethics and values, including adjusting contracts and contract demands so that they are in line with system goals AND professional standards. When this is not pos- sible, then it is the contention of these authors that the ethical practitioner should consider resignation. Exercise 6.4 is provided as a stimulus for your own development of such a preplan.
Exercise 6.4
Recontracting or Resigning
Directions: Part 1: Below you will find a number of organizational poli- cies or procedures that a practitioner would need to follow. Identify those you find objectionable. How would you attempt to rework these policies/procedures before you would resign your post?
Organizational Directive (Policies/ Procedures) Rework or Recontract Resign?
All clinical records, including notes, are open to inspection by anyone identified as an executive administrator within the organization.
Attempt to specify the specific types of data open for review and tie each level of data to a specific administrator with a “need to know.” Further, all clients would be informed as to the access to records.
Yes, if not modified
Allowed only to utilize a brief therapy form of service. Therapy restricted to eight sessions maximum.
(Continued)
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Organizational Directive (Policies/ Procedures) Rework or Recontract Resign?
Prior to providing ser- vice, all intake infor- mation must be shared with a review board in order to achieve per- mission to continue. Further, a specific treatment plan and progress reports must be completed after every four sessions.
As an employee, you are required to provide service, in-house, for all the clients you see, regardless of their needs and your level of training.
You are required to acquire a minimum of 30 continuing education credits in your professional field every 2 years.
Part 2: Ask an individual care provider who is a member of a managed care program to show you his or her contract and statement of responsibilities, policies, and procedures governing service delivery. Review this contract and identify areas that you feel may potentially compromise your ability to provide ethical practice.
(Continued)
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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CONCLUDING CASE ILLUSTRATION ●
Returning to the scene with which we opened the chapter, we find Ms. Wicks (Maria’s counselor) expressing her felt conflict among the informal values and rules of conduct held within the system in which she works, her concern for her client, and her understanding of her professional code of ethics. As you read the continuing dialogue, try to identify some of the values and/or under- lying assumptions existing within that school’s culture and begin to identify where and how these may conflict with this particular counselor’s under- standing of her professional code of conduct. The questions in the reflection section that follows the exchange should help you in this process.
Ms. Wicks: Hi, Tom, it is me again.
Mr. Harolds: Hey, how are you? Did you get that information from the state association?
Ms. Wicks: Not yet, they are supposed to call me. But, things are getting more confusing . . .
Mr. Harolds: Really?
Ms. Wicks: Ms. Armstrong, the principal at the school, informed me that it is understood in the district that we are not to counsel students regarding sexual issues. She said it is not a formal policy, just something that “we” all know not to do. So now I’m not sure if I broke a law, or violated a code of ethics, or may have stepped over the line in terms of my job definition. I am so confused!
Mr. Harolds: Well, Michelle, this is a very conservative community, and the truth is that with so many of our students having Latino back- grounds, we rea1ly don’t want to impose mainstream cultural values where they don’t belong.
Ms. Wicks: But, Tom, it is not like I’m going to promote a particular position here. I am just very concerned that she is making some decisions that could prove harmful and even potentially lethal to her.
Mr. Harolds: It is clear you are concerned about your client, but you need to understand something. In the past, we attempted to help the students make what we thought were value decisions. In fact, in health class we used to have a unit on sexuality and sexually transmitted diseases. Well, 5 years ago a parent group took the
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health teacher, the principal, and the school superintendent all to court for supposedly “imposing moral values” on their children. As a result, we removed health from our curriculum, replaced it with something on career choices, and created a parent supervisor board for the school that reviews curriculum decisions. So the superintendent is likely to be extremely sensi- tive about anything that may be interpreted as promoting a set of values or beliefs. I guess Ms. Armstrong is simply trying to avoid pressure from the central office. No sense rocking the boat.
Reflections
1. Assuming that Mr. Harolds’s depiction of the way the system operates is accurate, what would be the primary value or motive driving deci- sions around controversial topics?
2. When it comes to decision-making, which of the following would you suspect takes primacy in the culture of that school: Do what’s expedient? Avoid conflict at all costs? Be politically correct? Do what is best for the students?
3. Could you identify an artifact that reflects the operating values and assumptions within that school?
4. What do you feel Ms. Wicks should do? In relationship to her client? Future clients? Her principal? Her job definition and contract?
● COOPERATIVE LEARNING EXERCISE
Directions: With a colleague, review each of the following scenarios and
• Identify potential areas of conflict
• Decide if the behavior of the practitioner is ethical
• Identify decision options available for the practitioner
• Discuss possible preplan options that could have been implemented to reduce the potential of conflict.
Scenario 1: High School Counselor
A high school counselor has been working with a student athlete who was self-referred, because of his concern about his tendency to attend under- age drinking parties on the weekends and become intoxicated. The student expressed genuine concern over these tendencies and appeared willing to
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work with the counselor in order to curtail both the desires and the actions. He is particularly concerned with changing his behaviors, as the basketball season has just begun and he is the starting center for the team. There is a zero-tolerance policy for student athletes engaging in illegal activities, such as underage drinking. The counselor feels that he should warn the basketball coach about the student’s tendencies toward attending parties and drinking on the weekends.
Scenario 2: An Employee Assistance Provider (EAP)
Dr. Livingston is a licensed social worker working in private practice. Dr. Livingston also provides short-term counseling to employees of a local manufacturing plant. In this capacity as an employee assistance counselor, she has agreed to provide short-term (maximum of five visits) counseling to all employees and offers referral services for those needing more extended care. Further, her contract calls for her to consult with managers in order to increase their effectiveness when working with their employees.
In working with Helen, Dr. Livingston discovered that Helen and her coworkers have been punching in and out for one another and, as a result, have developed a system where they can cut approximately 8 hours a week off their actual work while recording and receiving pay for a full 40-hour week. Helen is a little troubled by this procedure but reports this is what everybody does. Dr. Livingston feels that she should report this information to Mr. Hansen, the owner of the company, since it is he with whom she has a contract.
SUMMARY ●
• Practice decisions made must reflect not only the needs of the client and characteristics and orientation of the helper but also the unique characteristics and demands of the context or organization in which the helping occurs.
• A professional role as well as the expectations of professional behav- ior is shaped in response to the organization’s expectations and needs; therefore, these expectations are incorporated as standards and guides for practice decisions.
• System culture is a pattern of basic assumptions invented, discovered, or developed by a given group as it learns to cope with its problems of external adaptation and internal integration. The pattern has worked well enough to be considered valid and is taught to new members as
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the correct way to perceive, think, and feel, in relationship to those problems.
• Once enculturated within a system, it is easy for the cultural values to become enacted in the way members prioritize and function— shaping policies, decision-making, and other operations. As such, practice decisions may begin to reflect institutional values and organizational ethics more than they represent “best practice” or codes of professional conduct.
• Most guidelines, like that of the ACA, indicate that the client is the primary concern for the ethical helper and the institution secondary. But it could be argued that accepting a position within an organiza- tion is a tacit agreement to serve as its agent and to embrace its values and standards of practice.
• The ethical practitioner needs to be accountable and responsive to both the system of employment and the individual clients served within that system.
• Ethical practitioners will share with their clients the obligations of fidelity, conditions of employment, and how these may flavor the helping relationships and the practitioners’ decisions. One special situation in which it is clear there may be more than one client is in the case of managed care.
• Managed care is essentially an economic strategy designed to provide care of equal or better quality for less money. The policies of managed care may conflict with the decisions of an ethical practitioner, espe- cially when utilization review decisions are contrary to professional judgment or when short-term or limited interventions are inadequate forms of treatments.
• Understanding the nature of the managed care contract and resolv- ing areas of professional standards of practice and care with those of economic necessity is a must for the ethical helper.
• Acceptance of employment is essentially an agreement with the prin- ciples and policies of the institution. When conflict exists between the institution’s practices and the standards established by the code, the ethical practitioner needs to clarify and resolve conflicts in a way that maximizes adherences to ethical dictates of his or her profession. This can be facilitated by establishing a preplan of resolving potential con- flicts between organization and professional ethics and values, including adjusting contracts and contract demands so that they are in line with system goals AND professional standards. When this is not possible, then it is the contention of these authors that the ethical practitioner will consider resignation.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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IMPORTANT TERMS ●
artifacts managed care
basic assumptions need to know
client organizational ethics
cultural values preplan
ethical culture of social systems system
limits of confidentiality utilization review
ADDITIONAL RESOURCES ●
Houser, R., Wilczenski, F. L., & Ham, M. (2006). Culturally relevant ethical decision- making in counseling. Thousand Oaks, CA: Sage.
Sperry, L. (2007). The ethical and professional practice of counseling and psycho- therapy. New York, NY: Pearson.
Thompson, R. (2012). Professional school counseling: Best practices for working in the schools. New York, NY: Taylor & Francis.
Web-Based
Daniels, J. A. (2001). Managed care, ethics, and counseling. Journal of Counseling and Development, 79, 119–122. doi: 10.1002/j.1556-6676.2001.tb01950.x
Glosoff, H. L., & Pate, R. H., Jr. (2002). Privacy and confidentiality in school counsel- ing. Professional School Counseling, 6(1), 20–27.
Kremer, T. G., & Gesten, E. L. (1998). Confidentiality limits of managed care and cli- ents’ willingness to self-disclose. Professional Psychology: Research and Practice, 29(6), 553–558. Retrieved from http://dx.doi.org/10.1037/0735-7028.29.6.553
Mappes, D. C., Robb. G. P., & Engels, D. W. (1985). Conflicts in ethics and law in counseling and psychotherapy, Journal of Counseling and Devel- opment, 64(4), 246–252. Retrieved from http://onlinelibrary.wiley.com/ doi/10.1002/j.1556-6676.1985.tb01094.x/abstract
Reamer, F. G. (2008). When ethics and the law collide, Social Work Today, 8(5). Retrieved from http://www.socialworktoday.com/archive/EoESepOct08.shtml
Stone, C. (2006, January). Confidentiality and the need to know. ASCA school- counselor. Retrieved from http://schoolcounselor.org/magazine/blogs/ january-february-2006/confidentiality-and-the-need-to-know
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● REFERENCES
American Association for Marriage and Family Therapy. (2015). Code of ethics. Retrieved from https://www.aamft.org/iMIS15/AAMFT/Content/Legal_Ethics/ Code_of_Ethics.aspx
American Counseling Association. (2014). Code of ethics. Retrieved from http:// www.counseling.org/resources/aca-code-of-ethics.pdf
American Mental Health Counselors Association. (2010). Code of ethics. Retrieved from http://c.ymcdn.com/sites/www.amhca.org/resource/resmgr/Docs/ AMHCA_Code_of_Ethics_2010_up.pdf
American Psychological Association. (2010). Ethical principles of psychologists and code of conduct. Retrieved from http://www.apa.org/ethics/code/principles.pdf
Haas, L. J., & Cummings, N. A. (1995). Managed outpatient mental health plans: Clinical, ethical and practical guidelines for participation. In D. N. Bersoff (Ed.), Ethical conflicts in psychology. Washington, DC: American Psychological Association.
Kurusu, D. J. (1985). Consultation interventions: Successes, failures and proposals. The Counseling Psychologists, 13, 368–389.
Langwell, K. M. (1992). The effects of managed care on use and costs of health services. (Staff memorandum). Washington, DC: Congressional Budget Office.
Metzl, J. M. (2012). Managed mental health care: An oxymoron of ethics? Jefferson Journal of Psychiatry, 35–42.
Meyers, C. (1999). Managed care and ethical conflicts: Anything new? Journal of Medical Ethics, 25(5), 382–387.
National Association of Social Workers (Rev. ed., 2008). Code of ethics. Retrieved from http://www.socialworkers.org/pubs/code/code.asp
Neuhauser, J. A. (2011). Lives of quiet desperation: The conflict between military necessity and confidentiality. Creighton Law Review, 44, 1003–1044.
Roberts, M. C., & Hurley, L. K. (2012). Managing managed care. New York, NY: Springer.
Schein, E. (2010). Organizational culture and leadership (4th ed.). San Francisco, CA: Jossey-Bass.
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153
CHAPTER 7
Ethical Decision-Making
Ms. Wicks: You know, this job seemed easier when I was in school. All the case examples used in class were so clear-cut. It was easy to understand what was ethical and what was not.
Mr. Harolds: You would think there would be clear-cut answers to what you are supposed to do, and when you are supposed to do it.
Ms. Wicks: That’s certainly not the case in my fieldwork! Professional practice in real life is not always that clear.
The student’s reflection of how real life differs from the somewhat “artificial” life of the textbook or academic setting highlights the fact that ethics and ethical practice are not as simple or as clear-cut as
may be assumed or certainly desired. As one in the early stage of your pro- fessional life, the thought of committing a violation against your professional ethics may seem foreign and remote. Sadly, violations or at least behavior approaching ethical violations are neither foreign nor remote. As reported by one organization, nearly 5,000 ethical inquiries regarding counselor deci- sions and practices were made in 2011 (ACA, 2012).
Our professional codes are “guidelines,” neither recipes nor clear direc- tives. While it is essential to understand and embrace our ethical codes, it is equally important for each professional and professional-in-training to under- stand, embrace, and employ a process that will facilitate the application of these codes, especially in those situations where clear, ethical pathways are less than evident.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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● OBJECTIVES
The current chapter will review models for ethical decision-making and provide an integrated model that helps clinicians move from the recogni- tion and assessment of an ethical dilemma through planning, implementing, and evaluating the impact of their practice decisions. Case illustrations and guided exercises are provided to not only add to the clarity of understand- ing but to facilitate, your valuing of the need for an ethical decision-making process to guide your own practice decisions.
After reading this chapter you should be able to do the following:
• Not only understand but also value the need and importance of employing ethical decision-making models to guide practice decisions;
• describe a number of step-wise and value-based models of ethical decision-making;
• identify and explain common elements that can be crafted into a more generic, integrated model for ethical decision-making; and
• apply an integrated model of ethical decision-making to illustrated cases.
● CODES OF ETHICS: GUIDES NOT PRESCRIPTIONS
A set of rules and directives that would result in efficient and ethical pro- fessional practice would be something clearly welcomed by student and professional alike. However, as should be clear by now, such prescriptions or recipes for professional practice do not exist, nor does every client and every professional condition provide clear-cut avenues for progress.
Professional practice is both complex and complicated. The issues pre- sented are often confounded and conflicting. The process of making sense of the options available and engaging in the path that leads to effective, ethical practice cannot be preprogrammed but rather needs to be fluid, flexible, and responsive to the uniqueness of the client and the context of helping. The very dynamic and fluid nature of our work with clients prohibits the use of rigid, formulaic prescriptions or directions. Never is this so obvious as when first confronted with an ethical dilemma.
Consider the subtle challenges to practice decisions presented in Case Illus- tration 7.1. The case reflects a decision regarding the release of information and the potential breach of confidentiality. The element confounding the decision, as you will see, is that the client was deceased and it was the executrix of the estate providing permission to release the information to a third party.
As noted, the main question to be considered in this case is, does con- fidentiality extend into the grave and if not, under what conditions can
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Case Illustration 7.1
Conditions for Maintaining Confidentiality
While all clinicians have been schooled in the issue of confidential- ity and the various conditions under which confidentiality must be breached (e.g., prevention of harm to self or another), the conditions of maintenance of confidentiality can be somewhat blurred when the material under consideration is that of a client who is now deceased. Consider the case of Dr. Martin Orne, MD, PhD.
Dr. Orne was a psychotherapist who worked with Anne Sexton, a Pulitzer Prize winner. Following the death of Ms. Sexton, an author, Ms. Middlebrook, set out to write her biography. In doing her research, Ms. Middlebrook discovered that Dr. Orne had tape-recorded a number of sessions with Ms. Sexton in order to allow her to review the sessions, and he had not destroyed the tapes following her death.
Ms. Middlebrook approached Linda Gray Sexton, the daughter of the client and the executrix of the estate, seeking permission to access these tapes of the confidential therapy sessions as an aid to her writing. The daughter granted permission for release of the therapeutic tapes.
A number of questions could be raised around this case, includ- ing the ethics of tape-recording or the ethics of maintenance of the tapes following the death of the client. However, the most pressing issue involves the conditions under which confidentiality should be maintained. The challenge here is, should Dr. Orne release the tapes in response to the daughter’s granting of permission, or does his client have the right to confidentiality even beyond the grave?
(should) it be violated? You may find it informative to discuss that question with your classmates or colleagues, and to aid in that discussion, you may want to consult the following website for additional information on the case (http://www.dianemiddlebrook.com/sexton/tpg12-91.html).
While our standards and professional codes of practice can help us in resolving questions, such as that found in Case Illustration 7.1, they do not (nor do they purport to) provide clear direction and solution in any and all situations. Even principles such as informed consent, confidentiality, and boundaries, while appearing clear and easily applied, can be challenging to enact in professional practice. Consider these principles in light of some challenging practice conditions (see Table 7.1).
Clearly, as a human service provider, you will encounter situations in which you are confronted by an ethical dilemma. The situation may include if and when
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Table 7.1 Challenges to Clarity
Issue/Code Challenge Real Life Challenge: Case Scenario
Direction? Decision?
Confidentiality
Keep information confidential unless legal requirements demand that confidential information be revealed or a breach is required to prevent serious and foreseeable harm to the student. (ASCA, 2016, A.2.e)
To act or not to act requires the counselor to interpret the meaning of serious and foreseeable harm and judge a client’s/ student’s behavior as serious enough to break confidentiality.
A 17-year-old high school senior discloses the fact that she is trying to “secretly” get pregnant as a way of making her boyfriend make a commitment to her.
A 12-year-old middle school student has shared that she is actively engaging in sexual activity, including intercourse, with one of her eighth- grade peers.
How might you apply the concept of “prevent serious and foreseeable harm to the student”?
Could a case be made in either illustration for breaking confidentiality? How about maintaining confidentiality?
Boundaries
A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists. APA, 2010, 3.05)
The challenge is to define those conditions where the multiple relationships could be expected to impair one’s objectivity, competence, or effectiveness. While some situations are clear, as in having a romantic relationship with a current client, others may fall in those shades of gray.
A clinical psychologist in private practice is invited to serve as head coach for the high school girls’ soccer team. To her surprise, she arrived at the first team meeting to discover that the team’s star player is also her client.
While participating in a single-parents group at her local church, a practicing psychologist is approached by a previous client who “invites” her out for a drink following one of the meetings.
Can the clinician engage in both roles—as coach and therapist?
Is “socializing” with this previous client allowable?
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Issue/Code Challenge Real Life Challenge: Case Scenario
Direction? Decision?
Informed Consent
Clients have the freedom to choose whether to enter into or remain in a counseling relationship and need adequate information about the counseling process and the counselor. (ACA, 2014, A.2.a)
Challenges could include the following:
Are there conditions that inhibit a client’s ability to provide informed consent?
Do all clients have the ethical right of freedom to choose or are there conditions (e.g., age, diagnosis, court mandate, etc.) that limit that freedom?
The client, who is 26 years old, came to the session having been driven by his father. During the initial intake, it became clear to the counselor that the client had some form of neurological impairment not previously disclosed.
The client is an 8-year- old, third-grade student who was referred by his teacher because of what she felt was unusually aggressive drawings and stories in his journal.
How might this issue of neurological damage influence the clinician’s approach to “informed consent”?
Does age, issue, or context (i.e., school) affect the client’s right of freedom to choose?
to disclose confidential information without a client’s consent (e.g., a suicidal client) or the ethics of limiting a client’s right to self-determination (e.g., when involuntary hospitalization is required) or even the appropriateness of engaging in nonprofessional relationships with a former client. These ethical dilemmas are difficult to resolve, because by one definition, that of Kitchener as cited in Shiles (2009), an ethical dilemma occurs when “there are good but contradic- tory ethical reasons to take conflicting and incompatible courses of action” (p. 43). As such, the ethical dilemmas we encounter are by definition often subtle and always, by definition, without a singular clear path to resolution. Consider the findings of one study assessing 450 members of the American Psychological Association’s Division 29 (Psychotherapy) by Pope, Tabachnick, & Keith-Spiegel (1987). Of the 83 separate behaviors the members were asked to rate according to ethicality, very few—for example, having sex with a client or breaking confi- dentiality if clients are suicidal or homicidal—were clear-cut. Most of the 83 fell in what the authors termed “gray areas” between being ethical and unethical. Such data highlights the difficulty one experiences when faced with an ethical dilemma and the need for a sound model of ethical decision-making.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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● ETHICAL DECISION-MAKING: A RANGE OF MODELS
Life—at least our professional lives—would be easier if all practice deci- sions and ethical dilemmas were black or white. As should now be evident, the ethical nature of our practice decisions are most often colored in many shades of gray, and thus the path to follow is not always clear.
For some, the goal is to follow the ethical codes from a mandatory per- spective and thus be true to the letter of the law. While this is a basic level of ethical functioning and may serve to protect the human service provider to avoid legal trouble, this should not be the main focus of our ethical choices. We are called to embrace our ethics on an aspirational level. For one embrac- ing aspirational ethics, the goal is not self-protection but rather client welfare. While it is our duty, our responsibility, to understand and embrace our codes of ethics (i.e., mandatory ethics), the execution of these codes in practice demands that we engage in self-reflection and the employment of a decision- making process that results in what is best for each of our clients (i.e., aspi- rational ethics). Reliance on one’s “gut-feelings” or intuition, in the absence of reflection on that which is both mandatory and aspirational, presents an ethical problem in itself, given the greater risk to the public (Welfel, 2010).
In complex situations, the American Counseling Association’s (ACA) Ethics Committee, for example, recommends that counselors explore pro- fessionally accepted decision-making models and choose the model most applicable to their situation (Kocet, 2006). This position has even been codified in the ACA Code of Ethics where it is noted: “When counselors are faced with an ethical dilemma, they use and document, as appropriate, an ethical decision making model . . . ” (ACA, 2014, Code I.1.b).
While there is no one specific ethical decision-making model that has been identified as most effective and globally embraced, it is important, as noted by the ACA (2014, p. 3), for practitioners to be familiar with a credible model of decision-making. To this end, numerous authors have offered models for ethical decision-making, a sampling of which is offered in the next section. Each model offers a unique perspective or lens through which to view prac- tice decisions and ethical dilemmas and as such are worthwhile, considering as each may reflect your style of practice and/or the context in which you work.
Ethical Justification Model
Kitchener (1984) has provided what some feel is the foundation for ethi- cal decision-making (see Sheperis, Henning, & Kocet, [2016]). In fact, many of the ethical decision models use Kitchener’s virtues as a springboard for their development (Urofsky, Engels, & Engerbretson, 2008).
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Kitchener (1984) was aware of the then existing limitations to ethical codes and thus directed psychologists to consider the fundamental ethical principles that not only serve as the foundation for professional codes but pro- vide a conceptual vocabulary for analyzing ethical issues when direction is less than clear. Kitchener invited practitioners to employ the values of autonomy, nonmaleficence, beneficence, fidelity, and justice (see Chapter 3) as reference points when making ethical decisions. From this perspective, clinicians would ensure that their decisions not only treated each client equally given equal cir- cumstances (justice) but also supported client freedom to choose (autonomy). Further, based on these principles, a practitioner’s ethical decisions would be made in a way that not only avoided harming the client (nonmaleficence) but promoted help and health (beneficence).
For example, while having a sexual relationship with a client is clearly unethical, the question of ethics when applied to other nonsexual, multiple- role relationships with former clients may be less obvious (Anderson & Kitchener, 1998). In these situations, the codes may not be clear and direc- tive. Kitchener (1984) would suggest that clinicians allow their concern about not undoing therapeutic gains (i.e., nonmaleficence) along with their desire to refrain from affecting client self-determination (i.e., autonomy) to guide their decision to engage or not to engage in these nonsexual, multirole relationships. To further clarify this perspective, we invite you to engage in Exercise 7.1, applying foundational values.
When exploring an ethical dilemma, reflection on these moral values or principles may offer insight into the path best chosen. However, it has been suggested (e.g., Forester-Miller and Davis, 1996) that in complicated cases the employment of a step-wise decision-making model may be useful.
Step-Wise Approach
Forester-Miller and Davis (1996) detailed one step-wise approach that was presented in the ACA document “A Practitioner’s Guide to Ethical Decision Making” (http://counseling.org/docs/ethics/practitioners_guide .pdf?sfvrsn=2). The authors presented a practical, seven-step process for ethical decision-making. The steps included the following:
Step 1: Identify the problem articulating the ethical concern. During this step, the practitioner needs to gather information that sheds light on the depth and breadth of the situation. The authors suggest that the practitioner consider questions such as, is this an ethical, legal, professional, or clinical problem or perhaps some combination? Is the issue a reflection of me, the client, others in the client’s life, and/or the system in which I work? Answering these questions helps focus the targets for resolution.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Exercise 7.1
Applying Foundational Values
Directions: The task is to review the following situations confronting a therapist. Your task is to first decide what you would do. Next—and this may be best done in consult with a classmate, colleague, or professor—view your decision through the values of autonomy, nonmaleficence, beneficence, fidelity, and justice. Would this process alter your initial decision?
Situation Your Decision Autonomy Nonmalefi cence Beneficence Fidelity Justice
An 8-year- old, third- grade student attempts to hug the school counselor upon entering the office.
In a group session, which is working on social skills, a client diagnosed with autism offers a hug to the therapist.
The client, a 74-year- old religious sister (nun) brings a hand-knit scarf as a gift to the therapist.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Step 2: Apply the ACA Code of Ethics. While developed for use by counselors and thus the reference to ACA Code of Ethics, this decision- making process could be employed by all mental health professionals by making reference to the appropriate professional standard and code at this step in the process. It is important to review the codes in order to identify all standards that may apply to the situation. If the codes do not provide clear and direct insight into the path of resolution, additional steps of the decision-making process will be necessary.
Step 3: Determine the nature and dimensions of the dilemma, noting the scope of the issue engaging the current professional literature, colleagues, and even professional associations to ensure the most current perspective on this type of problem is incorporated.
Situation Your Decision Autonomy Nonmalefi cence Beneficence Fidelity Justice
At a fund raising dinner, the chair of the event introduces himself to the guest speaker, a psycho- therapist within the community. He then asks how his brother is progressing in his therapy, noting that his brother is under his care and it is he who is paying for the therapy.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Step 4: Generate a possible course of action that could result in resolution. During this step, be creative; brainstorm in order to develop the widest possible selection of options.
Step 5: Consider the potential consequences of all options. It is important to identify all possible implications of each course of actions as it may impact the client, others, and even yourself. Identify the option or combination of options that best serve the situation.
Step 6: Evaluate the selected course of action. At this step, it is especially important to be sure that the path selected will not create additional ethical concerns.
Step 7: Implement the course of action. Once the pathway has been selected and implemented, it is important to assess to ensure that the desired impact or outcomes were achieved.
The employment of such a step-wise approach DOES NOT ensure that each practitioner, in similar situations, would arrive at the same path or outcome. However, the use of this or similar systematic models allows each clinician to not only give evidence of their valuing of ethics and ethical decision-making but to be able to articulate and explain their deliberations and reflections in the selection of a course of action.
Case Illustration 7.2 highlights the use of this approach and Exercise 7.2 invites you to employ the model on simulated case dilemma.
Case Illustration 7.2
Confidentiality Violation?
The client, Mr. E., left a message on Dr. Ellis’s voicemail asking that the therapist send a bill summarizing all contact over the past year. As noted on the voicemail, Mr. E. was going to submit the summary to his insurance for possible reimbursement. Mr. E. left no further instructions.
In order to expedite the process Dr. Ellis decided to send the sum- mary to his client’s office fax machine. While the cover sheet accompa- nying the bill had a large, very clear statement of confidentiality, it also included the doctor’s name, practice name, and address at the bottom. After faxing the summary, Dr. Ellis began to be concerned, because he was unclear as to whether the fax machine was in a public place or available only to this client. As such, he attempted to call the client to inform him of the sent fax only to find that he was out sick.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Step 1: Identify the problem articulating the ethical concern. Clearly, while the client directed him to assemble a summary statement, the manner and medium for delivery could cause concern for the client. The summary not only contained specific dates of the individual sessions but also included codes indicating the diagnosis as well as codes indicating the form of treatment (i.e., individual psychotherapy). The private and sensitive nature of this material was not for public consumption, and the doctor questioned whether the cover sheet noting the information was confidential was sufficient to protect the client’s privacy.
Step 2: Apply the code of ethics. Dr. Ellis was a licensed profes- sional counselor and member of the ACA, so he consulted the ACA 2014 Code of Ethics. In reviewing the code, he became concerned that he may have violated the following:
A.1.a. Primary responsibility. The primary responsibility of counselors is to respect the dignity and promote the welfare of clients.
B.1.c. Respect for confidentiality. Counselors protect the confidential information of prospective and current clients. Counselors disclose information only with appropriate consent or with sound legal or ethical justification.
B.2.e. Minimal disclosure. To the extent possible, clients are informed before confidential information is disclosed and are involved in the disclosure decision-making process. When circum- stances require the disclosure of confidential information, only essential information is revealed.
B.6.b. Confidentiality of records and documentation. Counselors ensure that records and documentation kept in any medium are secure and that only authorized persons have access to them.
B.6.f. Assistance with records. When clients request access to their records, counselors provide assistance and consultation in inter- preting counseling records.
Step 3: Determine the nature and dimensions of the dilemma. Dr. Ellis consulted with a colleague and attempted to research information on the use of electronic media and faxes in mental health practice. It became clear that while the use of fax transmissions is always dangerous, it should clearly be used only when the intended party has sole access to the fax or is stand- ing by the machine and ready to retrieve it, a point that would require veri- fication via telephone. Further, in considering ACA ethics, Dr. Ellis realized
(Continued)
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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that he should have consulted with the client, clearly identifying potential risks and costs to faxing this information and then gained written permis- sion for the client. The other issue raised by way of his consulting was the possibility that sending billing information could be a violation of the client’s company policy regarding use of company fax or even a possible violation of debt collection laws, since an outstanding balance was listed.
Step 4: Generate possible courses of action. Dr. Ellis began listing possible courses of action that included the following:
1. Go to the client’s office and retrieve the fax.
2. Call the office and ask a receptionist to retrieve and destroy the fax.
3. Contact the client and after describing the dilemma ask what he would like to have done.
4. Wait, do nothing and see what happens.
Step 5: Consider the potential consequences of all options. In reviewing the first two ideas, Dr. Ellis concluded that his very presence and need to introduce himself and explain why retrieving the fax was necessary would in fact be a public disclosure of his client’s engage- ment in therapy. Further, Option Number 4, given the potential for dam- age to the client’s reputation and even work status, was not viable. As such, he chose to track down the client in order to discuss the situation.
Step 6: Evaluate the selected course of action. Upon reflection, Dr. Ellis realized that contacting his client and disclosing what has occurred could at minimum shake the strength of his therapeutic alliance and level of trust and even invite client legal action. However, having worked with the client for more than 8 months, Dr. Ellis felt secure that the relationship was strong enough to weather this situation and thus proceeded to call.
Step 7: Implement the course of action. On contacting the client, Dr. Ellis was relieved to find out that his client was not ill but rather taking a “mental health day” and that the only other person in the office was his personal secretary, whom he had already instructed to look for a fax and to file his insurance claim.
While any damage to the therapeutic relationship had been averted in this situation, the potential damage to future clients and client relationships remained, and as such, Dr. Ellis developed a very clear, specific policy regarding the use of social media, e-mail, and faxing, which he would distribute and discuss to all current and future clients.
(Continued)
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Exercise 7.2
Applying a Step-Wise Model
Directions: Exercise 7.1 presented a number of situations that may place a practitioner in an awkward situation and potentially an ethical bind. Your task in this exercise is to select one of these scenarios and employ the steps identified by Forester-Miller and Davis (1996) in order to decide on the action you would ultimately take. It would be useful to share your thinking and your decision with a colleague/classmate to gain their perspective.
Situation: (select one situation presented in Exercise 7.1)
Apply Forester-Miller and Davis Step-Wise Approach
● Step 1: Identify the problem articulating the ethical concern.
● Step 2: Apply the ACA Code of Ethics (or employ the code that best reflects your profession).
● Step 3: Determine the nature and dimensions of the dilemma.
● Step 4: Generate possible courses of action.
● Step 5: Consider the potential consequences of all options.
● Step 6: Evaluate the selected course of action.
● Step 7: Implement the course of action.
Values-Based Virtue Approach
Jordan and Meara (1990, 1995) introduced a rather unique perspective on the issue of ethical decision-making. Their virtue ethics model focuses not on what the counselor should DO but rather on HOW as well as on WHO the counselor should be. Advocates of virtue ethics argue that practitioners should not merely seek to conform to codes but should aspire to an ethical ideal. For example, consider the situation in which a therapist approaches a termination session with a Chinese American couple. They have worked together for over a year, and the therapy has helped the couple achieve their goals. At the end of this last session, the couple presented the therapist with an original pen-and-ink drawing of their parents’ village back in Mainland
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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China. The questions that flooded the therapist included, is it appropriate to take the gift? Is something in reciprocation required? Are boundaries being threatened? Would it be disrespectful not to take the gift?
Turning to his code of ethics, the therapist can clearly see that taking a gift as a form of bartering (AAMFT, 2015, Principle 8.5) is something that a thera- pist should ordinarily avoid. However, when it comes to simple reception of gifts from clients, there is not clear directive as to its appropriateness, and there even seems to be a general reluctance to discuss the issue (Zur, 2007).
While turning to one’s code of ethics may help direct the clinician’s response, it is, according to this model, important for the therapist to reflect upon his own personal values as they reflect his desire to both respect the persons of the clients and their culture. From this perspective and understanding that the gifts came from a desire to celebrate their success and give thanks for the profes- sional assistance, the therapist decided to gracefully and gratefully accept this gift.
Jordan and Meara’s emphasis on the values, the virtues, and the person of the therapist certainly fits with the primary theme of this text, a theme that encourages BEING ethical rather than simply knowing ethics. Jordan and Meara’s approach appears to these authors as a valuable addition to any step-wise model of ethical decision-making. Further, with its emphasis on ever-increasing self-awareness and ongoing reflection and development, their model offers valuable direction for each of us as we continue to grow and evolve both personally and professionally.
Integrating Codes, Laws, and Personal-Cultural Values
Tarvydas (2012) offers an integrative approach to decision-making that highlights the need for the practitioner to view all decision- making in light of not just ethical codes and laws but cultural and social values and con- text. The Tarvydas Integrative Decision-Making Model of Ethical Behavior comprises four stages: (a) interpreting the situation through awareness and fact finding; (b) formulating an ethical decision; (c) weighing compet- ing non-moral values and affirming course of action; and (d) planning and executing the selected course of action. Each of these stages is described below as applied to the following brief scenario (Case Illustration 7.3).
Stage I. Interpreting the Situation Through Awareness and Fact Finding
During this stage, the counselor will reflect upon the client’s unique circumstances and characteristics as well as the nature of the specific
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Case Illustration 7.3
Boundary Violation?
The client’s response came as totally unexpected, truly catching the thera- pist off guard. It was a very productive yet emotionally draining and intense session. Dr. Thwarp helped to facilitate the client’s review of a long-standing history of abuse, both emotionally and, in two situations, physically.
While emotionally draining, the session appeared productive. The client gave evidence of feeling empowered, no longer blaming herself as being responsible and even “deserving” of the abuse. This was truly a significant therapeutic breakthrough.
As the session came to an end and Dr. Thwarp stood to walk the client to the door, the client suddenly turned and threw both arms around Dr. Thwarp’s neck, holding her tightly for a few seconds and then exiting the office saying, “Thank you for all of your support.”
concerns and claims of all stakeholders. In addition, the clinician will engage in a fact-finding process that unearths all the facts reflecting the situation and the dimensions of ethical concern. For example, in review- ing the case of Dr. Thwarp (Case Illustration 7.3), she would want to process the event through her knowledge of the content and dynamic of the session; her reflections on her own responses prior to, during, and after the event; as well as the client’s unique familial, cultural, and perhaps religious values.
Stage II. Formulating an Ethical Decision
An initial step in the formulation process is to review and clearly identify the various levels or elements of potential ethical concern.
Continuing our brief illustration of the unexpected hug, the therapist in this situation may identify potential concerns around issues of power, transference and countertransference, and most clearly boundary viola- tions. Clearly, the theme of abuse and its implication of power and trust needs to be considered. Each of these concerns would then be viewed through relevant ethical codes, laws, and principles as well as institutional policies and procedures that apply to the situation.
With this clarity of situation, as contrasted to the standards and codes, the therapist would next consider both the positive and negative impacts of various potential courses of action. Perhaps in our scenario,
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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the therapist is considering the following potential courses of action: (a) to immediately contact the client to define boundaries of their rela- tionship; (b) to engage in a dialogue around boundaries at the beginning of the next session; (c) to invite the client to reflect upon her actions and the meaning they may have; (d) to increase her own sensitivity to the potential for such action and to be sure to preempt it in the future with this or any client; or (d) to simply accept the hug as a reflection of a deep sense of appreciation. As directed by the model, she would then consider the positive and negative impacts of each. During this process, it is recommended that a clinician confer with a colleague or supervisor before selecting a course of action.
Stage III. Selecting an Action by Weighing Competing, Non-Moral Values, Personal Blind Spots, or Prejudices
The model reminds us that we all have blind spots and personal preju- dices that can impact our decisions, and as such, it is important to engage in reflective recognition and analysis of personal, competing non-moral values and personal biases. Our illustrative therapist would need to be open to the possibility of her own seductive behavior or countertransference. She would want to consider what, if any, impact the lack of an intimate relationship in her own life may have on her feelings and her behaviors around this client and this experience. In addition, she may want to reflect on own personal experience with hugging: Was it always and only in a sexual context or was hugging a common form of social greeting?
In addition to reflecting on personal values and biases, it is important to filter the experience through an awareness of contextual influences, includ- ing institutional, cultural, and societal, before determining the best course of action.
Stage IV. Planning and Executing the Selected Course of Action
In the final stage, the clinician identifies a sequence of specific actions to be taken, with awareness of the potential personal and contextual barri- ers to effective implementation. For example, Dr. Thwarp recognizes that her schedule and the fact that she has a client waiting prevents an immedi- ate reaction or follow-up response to the client. Further, as she reflected on the session in light of the client’s history, she believes that any quick, impersonal response to her, like a phone call, may be received as evidence of her rejection and may result in the client’s developing feelings of shame. As such, she decided to assess the nature and strength of their relationship
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 7. Ethical Decision-Making–●–169
at the time of her next session, and if it appeared to be of therapeutic value, she would invite the client to review the hug in light of the previ- ous session and her needs and feelings at that time. Should the nature of the next session be such that review of this incident did not seem produc- tive, Dr. Thwarp would be aware of future attempts of physical contact, at which time she would invite the reflection while establishing a boundary.
With the implementation of a plan of action, the clinician is now invited to evaluate and document the ultimate impact and effectiveness.
Readers interested in seeing a more detailed application of this model as applied to a complex case should go to http://www.counseling.org/docs/ default-source/vistas/why-can-t-we-be-friends-maintaining-confidentiality .pdf?sfvrsn=11 and review the presentation by Heather A. Warfield, Stephen D. Kennedy, and Megan Hyland Tajlili, Winners of the 2012–2013 ACA Doc- toral Student Ethics Competition.
COMMON ELEMENTS: AN INTEGRATED APPROACH TO ETHICAL DECISION-MAKING
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The previous section provided brief descriptions of a number of ethical decision-making models. These are but a few of the numerous models suggested throughout the literature. While each of these models provides a unique perspective, a number of common elements seem to run through each and as such have been extracted and presented as the following “Com- mon Elements Integrated Approach.”
The common, recurring elements found within the various ethical decision-making models include the following: awareness of the existence and nature of the dilemma along with personal values and biases; ground- ing in both knowledge of the professional codes of practice, laws, and insti- tutional policies and procedures; support, which is found via consultation with all parties involved and professional colleagues and supervisors; and finally, implementation, including documentation and evaluation. Each of these elements is described in detail below and applied to the following case scenario (Case Illustration 7.4).
Awareness
As the first step to resolving an ethical dilemma, one must first note the existence and specific nature of the dilemma. An ethical dilemma occurs
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when a practitioner is confronted with a situation that offers multiple courses of action, where any one decision is less than perfect and will result in a com- prise to some ethical principle. Recognition of the situation as presenting an ethical dilemma may occur as a result of the practitioner’s reflection on the experience and the cognitive dissonance it creates when contrasted to his knowledge of the elements of his code of conduct (Johnson, 2012).
In addition to the identification of the principles being compromised, it is important for the practitioner to be aware of personal values and biases
Case Illustration 7.4
How Much Do I Share?
John Kelly, PhD, a licensed psychologist, was asked to assess an 8-year-old third-grade student in a local school district because of her parents’ concern over her recent withdrawal from social interaction and her failing grades. The parents’ explicit concern was in ruling out a possible learning disability and in developing some strategies for returning her to her previous level of academic and social functioning.
The psycho-educational assessment included an extensive clinical interview, a developmental history, as well as the administration of a battery of tests including the following: achievement tests, behavioral observational scales, and cognitive and personality assessments. The data suggested that Tina was functioning within the normal range in achievement and cognitive functioning but did give evidence of gen- eral anxiety that appeared to be in response to parental marital discord and the occurrence of parental arguing about an issue of “infidelity.”
In his report, Dr. Kelly noted the hypothesized interfering impact of Tina’s current anxious state and, in addition to suggesting the family engage in family therapy, provided a number of specific psycho- educational recommendations aimed at increasing her social engagement and academic performance.
A month after his contact with Tina, her school counselor sent a request, with an appropriately signed parental release for any and all information regarding his work with Tina. The request sought not only the psychologist’s report but the raw data and any “working notes” the psychologist had made during his meetings with the client and client’s family.
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that may be operative in this situation. It is possible that one’s personal values could run contrary to the ethical standards of her profession. How- ever, as a member of a profession, one has agreed to comply with the stan- dards of that profession as articulated within its code of ethics. As such, it is important to distinguish between personal and professional dimensions and as noted by the Council on Social Work Education (2008), “manage personal values in a way that allows professional values to guide practice” (EPAS 1.1).
In terms of our case illustration, Dr. Kelly was very aware of his discom- fort with the request for information that he received. While valuing the school counselor’s interest in helping Tina and even appreciating the fact that some of the information he had gathered would be useful in guiding the counselor’s work with Tina, he “felt” uncomfortable with releasing all of his data as requested. The discomfort seemed to arise from his awareness that some of the “family” information that might be disclosed focused more on the marital discord without direct translation to education programming or intervention. In addition, he had concerns over releasing raw test data, being unsure of the counselor’s qualifications for interpreting such data. He was further concerned about sharing the hypotheses and speculations that may be listed in his working notes, all of which were not fully developed or completely supported by data.
Grounding
When confronted with a “sense” that we are entering or even in danger- ous territory, the next step is to find grounding in the ethical codes, orga- nizational policies, and legal standards that should guide our practice. As noted in the ACA Code of Ethics (2014, Section I.1.a), “Lack of knowledge or misunderstanding of an ethical responsibility is not a defense against a charge of unethical conduct.” Thus, listing the specific codes being called into play along with any policies that may exist or laws established that have relevance to the situation provides the data and the grounding one needs to choose a path forward. Take note of how Dr. Kelly uses his code of ethics.
As a licensed psychologist in private practice, Dr. Kelly was aware of HIPPA regulations that specify patients’ access rights to their health and mental health files. While HIPPA provides for the release of psycho- therapy notes, it does so only under a special designation in the release or waiver signed by the client. A general request for medical records does not automatically allow for the release of these notes. Further, when it
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comes to “working notes,” their impressionistic nature makes them rela- tively meaningless other than for the clinician drafting them. It is gener- ally agreed that these should be temporary in nature, taking form in a more formal summary or report and subsequently destroyed. This is not the type of information that should be released to anyone, or maintained as a permanent file.
In reviewing his profession’s code of ethics (APA, 2010), Dr. Kelly was struck by the following:
“Psychologists may refrain from releasing test data to protect a client/ patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law (APA 2010, 9.04). He also found that his code directed that disclosure of information should be “only to the extent necessary to achieve the purposes of the consultation” (APA 2010, 4.06).
Support
The very fact that our codes are not always clear and prescriptive to every situation and that they may even be in conflict with existing organiza- tional policies or legal standards calls practitioners to seek out support and consultation when confronted with an ethical dilemma. As noted in the ACA Code of Ethics (2014), “Counselors strive to resolve ethical dilemmas with direct and open communication among all parties involved and seek con- sultation with colleagues and supervisors when necessary” (Sec. I, Introduc- tion). This same code further directs that “when uncertain about whether a particular situation or course of action may be in violation of the ACA Code of Ethics, counselors consult with other counselors who are knowledgeable about ethics and the ACA Code of Ethics, with colleagues or with appropriate authorities, such as the ACA Ethics and Professional Standards Department” (Sec. I.2.c).
The provision of another perspective can serve to not only bring increased clarity to the situation and the applicability of an existing code but may help to counteract our own bias.
Returning to Case Illustration 7.4, Dr. Kelly’s understanding of HIPPA law and of professional code led him to conclude that neither the raw data nor his working notes should be released as per request. However, prior to making that decision he wanted to consult with someone more schooled in and familiar with this type of issue. As such, he called the chair of his state ethics committee, who in turn consulted with the ethics committee.
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The response he received supported his decision to be selective in the infor- mation released. The committee’s response did note, however, that its posi- tion was not intended to serve as legal advice and was educational in nature based on members’ understanding of the APA code of ethics.
Implementation
Ethical decision-making is not merely an intellectual activity, it is a pro- cess that results in action. As is evident from our previous discussion on ethical decision-making models, the implementation stage requires (a) the generation of possible pathways to resolving the dilemma; (b) an assessment of the potential positive and negative consequences for all involved parties for each of the possible pathways; (c) the selection of the path to follow; and (d) documentation and evaluation of the ultimate impact.
So in Case Illustration 7.4, Dr. Kelly considered a number of options ranging from ignoring the request to sending all the data requested. Upon reflection and consultation, he felt that the most prudent and beneficial approach would be to contact his client’s parents to inform them of his reception of a request for information and explain to them his plan to respond. In talking with the parents, he explained that while his notes and actual test data were important to his understanding and assessment that these, even though requested, would be of little value to the school coun- selor. He suggested that it would be more productive if he sent an abbrevi- ated report with specific focus on the educational recommendations that could be implemented within the school setting. Further, he suggested that rather than sending this report directly to the counselor, he would provide the parents with the report, and they in turn could share the information, if they so desired, with the school.
Both parents were appreciative of the suggestion. Both admitted that they had not completely thought through the implications of what was being requested when they signed the release and were very happy that Dr. Kelly was aware of the possible negative effects of releasing all of his data to the school. Also, given the fact that he had previously gone over the entire report and recommendation with them, they both felt comfortable with sharing the sections relevant to the school and the counselor’s work with their daughter.
Dr. Kelly invited the parents to come into the office to once again review the recommendations, but neither felt that was necessary. Finally, he asked if they would send him a written request for the release of this “edu- cational report” so that he could have it in his records. He also documented the telephone conversation as well as the suggested and agreed upon plan.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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● CONCLUDING CASE ILLUSTRATION
Throughout the past chapters, you have seen Ms. Wicks, our school coun- selor, experience a number of ethical concerns while engaging with Maria. None of these seem to be as disruptive to the relationship as evidenced by Maria’s disclosure regarding her boyfriend having AIDS and the couple being engaged in unprotected sex. Ms. Wicks has concerns about both the legal mandate and ethical concerns that should guide her response to this infor- mation. In addition, she now has information that the district “prohibits” her from talking to students about sexual issues, which arouses her concern that she has violated some boundary. The situation is complicated, and the options are not completely clear.
Reflections
1. Has Ms. Wicks given any evidence of employing one of the many models of ethical decision-making described in this chapter?
2. What one specific step discussed within the chapter as contrib- uting to ethical decision-making do you feel Ms. Wicks needs to employ?
3. From your perspective, which of the models discussed within the chapter provides the best guidance for ethical decision-making when applied to this case?
● COOPERATIVE LEARNING EXERCISE
As noted in the beginning of the chapter, it is our responsibility to not only know and embrace our professional code of ethics but also to employ a process that will facilitate our application of these principles within our professional practice. The failure to do so is in and of itself an ethical problem (Welfel, 2010). As such, you are now invited to close this chapter by engaging in the following learning exercise (Exercise 7.3). It is hoped that engaging in this exercise will help your understanding, valuing, and employment of our common elements integrated approach.
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 7. Ethical Decision-Making–●–175
Exercise 7.3
Making a Decision
Directions: Read the following case scenario and then respond to ques- tions posed under each of the stages of ethical decision-making listed below. As with each of these cooperative learning exercises, benefit is accrued through personal reflection and the sharing of perspectives among your colleagues.
Dr. Mattison is a retired clinical social worker who had a large pri- vate practice for over 35 years. In retirement, she was hired as an adjunct professor to teach one graduate course a semester and also volunteered as an intake worker at the local community mental health center.
The center operated more like a crisis and referral agency seeing clients for a maximum of three sessions and making referrals when additional sessions were necessary. During the month of August, the agency experienced a high number of staff taking vacations. Dr. Mattison was asked to step in to provide direct service to new clients seeking support during the month.
In the week prior to her stepping back into the clinical chair, she remained on the phone as intake worker. The intakes she was complet- ing were on clients whom she would see in the following week.
One caller, Kathy, was clearly very upset, crying to the point where gathering the basic information was difficult. Dr. Mattison gen- tly calmed the caller and identified that the initial source of crisis was the fact that she had just been terminated at her job and gotten into a major argument with her boyfriend. While the caller felt as if the “world was collapsing,” Dr. Mattison was able to assess her level of cri- sis and the possibility of her harming herself or another. Both possibili- ties were felt to be of very low probability, and the caller had numerous supports in her life, living at home with her family. After setting up the appointment to meet with Kathy, Dr. Mattison did a final assessment to see how she was feeling and what her plans for the night and the days to follow were. Kathy’s response provided Dr. Mattison with the data she needed to feel that Kathy was okay and was not at risk.
After hanging up and as she was taking the next call, Dr. Mattison realized that in her focusing on the “crisis” she forgot to get Kathy’s last name or address. She felt that she could gather that information at the time of her first session, which was scheduled that coming Monday.
(Continued)
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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176–●–ETHICAL PRACTICE IN THE HUMAN SERVICES
● SUMMARY
On Monday, as Dr. Mattison enters the office, she becomes aware that the young woman waiting is not only Kathy, her first appointment, but that Kathy is actually a student in her Tuesday night class.
Awareness: Does the case present any possible ethical or legal challenges? If so, what are they?
Grounding: Using your profession’s code of ethics, what, if any, principles may be compromised or called into play given this situation?
Support: What do your colleagues or classmates see is operating in this situation? How about your professor or supervisor? Are their perspectives different from yours? If so, what is the impact of mul- tiple perspectives on your own awareness of the situation or your own biases and values?
Implementation: Generate at least three possible paths to follow in response to this situation. Further, identify the potential positive and negative impacts of each? Which would you select to imple- ment? Discuss with your colleagues to gain further perspective as to whether they identified similar paths, impacts, and implementa- tion plans.
(Continued)
• As professionals, it is our duty, our responsibility, to not only under- stand and embrace our codes of ethics but to also engage in self- reflection and the employment of a decision-making process.
• Our professional organizations direct us to employ accepted decision- making models that are most applicable to our situations (e.g., ACA, 2014, I.1.b).
• One approach (Kitchener, 1984) invites practitioners to employ the values of autonomy, nonmaleficence, beneficence, fidelity, and jus- tice as reference points when making ethical decisions.
• A more sequential approach to ethical decision-making was pre- sented by Forester-Miller and Davis (1996) and included seven steps: (a) identifying the problem, (b) applying the code of ethics, (c) deter- mining the nature and dimensions of the dilemma, (d) generating possible courses of action, (e) considering potential consequences of
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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Chapter 7. Ethical Decision-Making–●–177
all options, (f) evaluating the selected course of action, and (g) imple- menting the course of action.
• Jordan and Meara (1990, 1995) introduced a rather unique perspec- tive on the issue of ethical decision-making. Their virtue ethics model focuses not on what the counselor should DO but rather on HOW as well as on WHO the counselor should be.
• Tarvydas (2012) offers an integrative approach to decision-making that highlights the need for the practitioner to view all decision-making in light of not just ethical codes and laws but cultural and social values and context. The Tarvydas Integrative Decision-Making Model of Ethical Behavior comprises four stages: (a) interpreting the situation through awareness and fact finding; (b) formulating an ethical decision; (c) weighing competing non-moral values and affirming course of action; and (d) planning and executing the selected course of action.
• Identifying recurrent themes or elements found within the various models of ethical decision-making can direct us to a “common ele- ments integrated approach” that includes awareness of the existence and nature of the dilemma, along with personal values and biases; grounding in both knowledge of the professional codes of practice, laws, and institutional policies and procedures; support that is found via consultation with all parties involved and professional colleagues and supervisors; and finally implementation including documenta- tion and evaluation.
IMPORTANT TERMS ●
American Counseling Association (ACA)
American Association for Marriage and Family Therapy (AAMFT)
American Psychological Association (APA)
aspirational ethics
autonomy
beneficence
common elements approach
ethical decision-making
ethical justification model
fidelity
Integrative Decision-Making Model of Ethical Behavior
justice
mandatory ethics
nonmaleficence
step-wise approach
virtue ethics model
Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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178–●–ETHICAL PRACTICE IN THE HUMAN SERVICES
● ADDITIONAL RESOURCES
Hecker, L., & Associates. (2010). Ethics and professional issues in couple and family therapy. New York: Taylor Francis.
Pope, K., & Vasquez, M. (2011). Ethics in psychotherapy and counseling: A practical guide (4th ed). San Francisco, CA: Jossey Bass.
Sheperis D. S., Henning, S. L., & Kocet, M. M. (2016). Ethical decision making for the 21st century counselor. Thousand Oaks, CA: Sage.
Sisti, D. A., Caplan, A. L., Rimon-Greenspan, H. (2013). Applied ethics in mental health care: An interdisciplinary reader. Cambridge, MA: MIT Press.
Web-Based
Constable, E. G., Kreider, T. B., Smith, T. F., & Taylor, Z. R. (2011). The confidenti- ality of a confession: A counseling intern’s ethical dilemma. Retrieved from http://counselingoutfitters.com/vistas/vistas11/Article_37.pdf
Josephson, M. (2014). The six pillars of character. Retrieved from http:// josephsoninstitute.org/MED/MED-2sixpillars.html
Markkula Center for Applied Ethics. (2014). The ethical decision making assistant: Making an ethical decision app (Version 1.0) [Mobile application software]. Retrieved from http://www.scu.edu/ethics/ethical-decision/
Velasquez, M., Andre, C., Thomas Shanks, T., & Meyer, M. J. (2014). Thinking ethically: A framework for moral decision making. Retrieved from http:// www.scu.edu/ethics/practicing/decision/thinking.html
Williams, R. (2007, November). Solutions to ethical problems in schools. ASCA schoolcounselor. Retrieved from https://www.schoolcounselor.org/magazine/ blogs/november-december-2007/solutions-to-ethical-problems-in-schools
● REFERENCES
American Association for Marriage and Family Therapy. (2015). Code of ethics. Retrieved from https://www.aamft.org/iMIS15/AAMFT/Content/Legal_Ethics/ Code_of_Ethics.aspx
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Parsons, R. D., & Dickinson, K. L. (2016). Ethical practice in the human services : From knowing to being. SAGE Publications, Incorporated. Created from capella on 2023-03-02 22:41:59.
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