Morals, Ethics and Laws



Morals, Ethics and Laws

Morals: broader, less explicit standards of a society that are not formally written down.

Rest’s (1984) four components of moral behavior:

1: to interpret the situation in terms of how one's actions affect the welfare of others

2: to formulate what a moral course of action would be; to identify the ideal in a specific situation.

3: to select among competing value outcomes of ideals, the one to act upon; deciding whether or not to try to fulfill one's moral ideal.

4: to execute and implement what one intends to do

Ethics: although it is difficult to separate ethics from morals, ethics has typically been referred to a set of behaviors reflecting certain morals. Being professional, therefore, includes a trust that members will monitor their own and other members' professional behavior so that competent services are provided to the public.

1. For a particular profession, it is usually a written set of guidelines for behaving properly.

2. Few behaviors seem entirely ethical or unethical as all ethical codes seem transitory.

3. Kitchener (1984) notes that ethics intersect both morals and law

According to the text, there are two purposes for ethical codes:

Protect the public against the potential abuses performed by the professionals

Protect the profession from its members and outside attacks

What are the Applicable Professional Codes of Ethics to Mental Health Providers?

American Psychological Association Code of Ethics and Standards of Practice

Specialty guidelines for the delivery of services by clinical psychologists, counseling psychologists, industrial psychologists, industrial organizational psychologists, and school psychologists

American Counseling Association Code of Ethics and Standards of Practice

What do the Professional Ethics codes say about the law and ethics?

American Psychological Association

Psychologists comply with the law and encourage the development of law and social policy that serve the interests of their patients and clients and the public.

The Ethics Code is intended to provide standards of professional conduct that can be applied by the APA and by other bodies that choose to adopt them. Whether or not a psychologist has violated the Ethics Code does not by itself determine whether he or she is legally liable in a court action, whether a contract is enforceable, or whether other legal consequences occur. These results are based on legal rather than ethical rules. However, compliance with or violation of the Ethics Code may be admissible as evidence in some legal proceedings, depending on the circumstances.

In the process of making decisions regarding their professional behavior, psychologists must consider this Ethics Code, in addition to applicable laws and psychology board regulations. If the Ethics Code establishes a higher standard of conduct than is required by law, psychologists must meet the higher ethical standard. If the Ethics Code standard appears to conflict with the requirements of law, then psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict in a responsible manner. If neither law nor the Ethics Code resolves an issue, psychologists should consider other professional materials and the dictates of their own conscience, as well as seek consultation with others within the field when this is practical.

1.02 Relationship of Ethics and Law. If psychologists' ethical responsibilities conflict with law, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict in a responsible manner.

American Counseling Association

The ACA does not elaborate upon the relationship between the law and the counseling profession like the APA does. The only references that the ACA Code of Ethics makes toward the law is that counselors must keep records, conduct research, guard clients’ confidentiality, and respect copyright laws in accordance to the law.

Ethical Principles of the American Psychological Association

Principle A: Competence. Psychologists strive to maintain high standards of competence in their work. They recognize the boundaries of their particular competencies and the limitations of their expertise. They provide only those services and use only those techniques for which they are qualified by education, training, or experience. Psychologists are cognizant of the fact that the competencies required in serving, teaching, and/or studying groups of people vary with the distinctive characteristics of those groups.

Principle B: Integrity. Psychologists seek to promote integrity in the science, teaching, and practice of psychology…To the extent feasible, they attempt to clarify for relevant parties the roles they are performing and to function appropriately in accordance with those roles. Psychologists avoid improper and potentially harmful dual relationships…

Principle C: Professional And Scientific Responsibility. Psychologists uphold professional standards of conduct, clarify their professional roles and obligations, accept appropriate responsibility for their behavior, and adapt their methods to the needs of different populations... Psychologists consult with, refer to, or cooperate with other professionals and institutions to the extent needed to serve the best interests of their patients, clients, or other recipients of their services... Psychologists' moral standards and conduct are personal matters to the same degree as is true for any other person, except as psychologists' conduct may compromise their professional responsibilities or reduce the public's trust in psychology and psychologists…

Principle D: Respect For People's Rights And Dignity. Psychologists accord appropriate respect to the fundamental rights, dignity, and worth of all people. They respect the rights of individuals to privacy, confidentiality, self-determination, and autonomy, mindful that legal and other obligations may lead to inconsistency and conflict with the exercise of these rights…

Principle E: Concern For Others' Welfare. Psychologists seek to contribute to the welfare of those with whom they interact professionally. In their professional actions, psychologists weigh the welfare and rights of their patients or clients, students, supervisees, human research participants, and other affected persons, and the welfare of animal subjects of re- search. When conflicts occur among psychologists' obligations or concerns, they attempt to resolve these conflicts and to perform their roles in a responsible fashion that avoids or minimizes harm. Psychologists are sensitive to real and ascribed differences in power between themselves and others, and they do not exploit or mislead other people during or after professional relationships.

Principle F: Social Responsibility. Psychologists are aware of their professional and scientific responsibilities to the community and the society in which they work and live. They apply and make public their knowledge of psychology in order to contribute to human welfare… Psychologists try to avoid misuse of their work. Psychologists comply with the law and encourage the development of law and social policy that serve the interests of their patients and clients and the public...

Ethical Decision-Making

How do mental health professionals make ethical decisions? Tymchuk, 1991 proposed the following steps for Ethical Decision-Making.

Describe the parameters of the situation

Define the potential issues involved

Consult the ethical guidelines, if any, that may apply

Evaluate the rights, responsibilities, and welfare of all affected parties

Generate alternative decisions for each issue

Enumerate the consequences of making each decision

How do mental health professionals learn to make ethical decisions? Neukrug & Lovell (1996) state that counselors go through a developmental stage process to their ethical decision-making, very much like moral development. These developments begin with rote memorization of professional ethical standards to applying their own personal ethics.

How do mental health professionals psychologists resolve personal ethical dilemmas? When only one ethical parameter is addressed, ethical decision-making is simple. This is not the case for ethical dilemmas, in which the professional is in a situation where, no matter which choice is made, one or more ethical principles are being violated. According to Kitchener (1984), the moral principles that may help resolve these dilemmas include:

Autonomy: what is best is allowing the clients to make their own decisions

Nonmaleficence: what is best is not causing harm to others, includes both not inflicting intentional harm nor engaging in actions which risk banning others.

Beneficence: what is best is the act of doing good to others.

Justice : what is best is decided by the fact that in order to live together with minimal strife, people must develop rules and procedures for adjudicating claims and services in a fair manner.

Fidelity: what is best is being loyal within a relationship, that includes issues of "faithfulness," or promise-keeping.

What are the possible consequences for a mental health professional whose unethical conduct is handled by a professional ethics committee?

APA

11. Available Sanctions. On the basis of circumstances that aggravate or mitigate the culpability of the member, including prior sanctions, directives, or educative letters from the Association or state or local boards or similar entities, a sanction more or less severe, respectively, than would be warranted on the basis of the factors set forth below, may be appropriate.

11.1 Reprimand. Reprimand is the appropriate sanction if there has been an ethics violation but the violation was not of a kind likely to cause harm to another person or to cause substantial harm to the profession and was not otherwise of sufficient gravity as to warrant a more severe sanction.

11.2 Censure. Censure is the appropriate sanction if there has been an ethics violation and the violation was of a kind likely to cause harm to another person, but the violation was not of a kind likely to cause substantial harm to another person or to the profession and was not otherwise of sufficient gravity as to warrant a more severe sanction.

11.3 Expulsion. Expulsion from membership is the appropriate sanction if there has been an ethics violation and the violation was of a kind likely to cause substantial harm to another person or the profession or was otherwise of sufficient gravity as to warrant such action.

11.4 Stipulated Resignation. Stipulated resignation may be offered by the Committee as follows:

11.4.1 At the time of the respondent's initial response to the show cause notice, contingent upon execution of an acceptable affidavit admitting responsibility for the violations charged, under Part IV, Subsection 12.1;

11.4.2 Following a Committee finding that the respondent has committed a violation of the Ethics Code or failed to show good cause why he or she should not be expelled, contingent on execution of an acceptable affidavit and approval by the Board of Directors, under Part IV, Subsection 12.2, or Part V, Subsection 7.6.

12. Available Directives

12.1 Cease and Desist Order. Such a directive requires the respondent to cease and desist specified unethical behavior(s).

12.2 Other Corrective Actions. The Committee may require such other corrective actions as may be necessary to remedy a violation, protect the interests of the Association, or protect the public. Such a directive may not include a requirement that the respondent make a monetary payment to the Association or persons injured by the conduct.

12.3 Supervision Requirement. Such a directive requires that the respondent engage in supervision.

12.4 Education, Training, or Tutorial Requirement. Such a directive requires that the respondent engage in education, training, or a tutorial.

12.5 Evaluation and/or Treatment Requirement. Such a directive requires that the respondent be evaluated to determine the possible need for treatment and/or, if dysfunction has been established, obtain treatment appropriate to that dysfunction.

12.6 Probation. Such a directive requires monitoring of the respondent by the Committee to ensure compliance with the Ethics Committee's mandated directives during the period of those directives.

American Counseling Association

Section N. Possible Sanctions

1. Remedial requirements may be stipulated by the Committee.

2. Probation for a specified period of time subject to Committee review of compliance. Remedial requirements may be imposed to be completed within a specified period of time.

3. Suspension from ACA membership for a specified period of time subject to Committee review of compliance. Remedial requirements may be imposed to be completed within a specified period of time.

4. Permanent expulsion from ACA membership. This sanction requires a unanimous vote of those voting.

5. The penalty for failing to fulfill in a satisfactory manner a remedial requirement imposed by the Committee as a result of a probation sanction will be automatic suspension until the requirement is met, unless the Committee determines that the remedial requirement should be modified based on good cause shown prior to the end of the probationary period.

6. The penalty for failing to fulfill in a satisfactory manner a remedial requirement imposed by the Committee as a result of a suspension sanction will be automatic permanent expulsion unless the Committee determines that the remedial requirement should be modified based on good cause shown prior to the end of the suspension period.

7. Other corrective action.

What are the most common complaints handled by ethics committees?

Ethics Committee of the APA (1988) indicated that the largest number of violations were related to the welfare of the consumer; specifically, these involved dual relationships. Three types of dual-relationship violations are prominent.

therapist-client sexual relationships.

therapists entering into sexual intimacies with ex-clients

psychologists' providing therapy to their employees, students, supervisees, friends, or relatives.

Using the Law to Regulate Mental Health Practice

Federal Laws

Title VII of the Federal Civil Rights Act of 1964: this act prohibits sex discrimination and harassment and formed the Equal Employment Opportunity Commission to oversee the enforcement of this act.

National Research Act of 1974: requires universities to develop institutional review boards to protect research subjects.

Section 301 (d) of the Public Health Service Act of 1988: used for enforcing research confidentiality.

Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970 and Drug Abuse Office and Treatment Act of 1972: addresses confidentiality of drug and alcohol treatment records.

Copyright Act of 1976 (U.S. Code, Section 107): defines copyright materials and fair use doctrine

Constitutional Rights: the use of federal courts to demonstration violation of one’s constitutional rights by a profession or professional

Civil rights: similar to use of federal courts to demonstrate that one’s civil rights have been violated by the profession or professional.

Case Laws

Sometimes, a particular restriction or professional requirement for a profession comes from case laws. The Duty to Warn for mental health professionals came from the Tarasoff v. Board of Regents court decisions and the restrictions of the use of intelligence testing came from Larry P. v. Riles.

State Laws

1. Licensing Laws: licenses operate under the state’s police powers. Essentially this is a privilege of legal sanction involving the creation of a new kind of crime and control of certain titles, skills and knowledge (Alberding & Lauver, 1993)

Registration: sets minimal educational requirements and defines permissible professional activity

Certification: has minimal educational requirements, as well as a required work-related experience and binds the person to a state’s professional practice rules.

Licensure: in addition to the certification requirements, licensing requires also a minimal performance on a professional exam and allows for independent practice.

Licensing (Regulatory) Boards: set educational and training standards and approve who can or cannot qualify for the licensing exam. They have the authority of the statutes that created them to create regulations that control the practice of the profession within their respective state.

Not everyone thinks that legislated regulation is beneficial for society. Alberding and Lauver offer five reasons for and against regulation. The five reasons for such regulation include:

Protection of the public and therefore increased public faith, trust, and use of the profession

Protection of counselors’ right to professions

Increased likelihood of counselors’ eligibility for third-party payments

Enhanced professional power and prestige, and

Giving to counselors’ clients the right of privileged communication.

The five reasons against licensing are primarily economic:

increased consumer vulnerability because regulation, in fact, does not protect the public as it promises to do

discrimination against some competent practitioners

increased costs of services

loss of public power and control and

professional stagnation

2. Torts. A tort is a personal injury by one party to another. To prove a tort, also known as proving liability, one must prove the following:

1. A legal duty (including a special duty)

Special duty refers to a professional’s responsibility to protect clients against oneself.

2. A breach of that duty.

3. An injury caused by such a breach that can be redressed by monetary damages

Two types of causation:

Actual cause: the physical injury would not have occurred “but for” the defendant’s conduct; can also use standard of significant contributing factor by the defendant’s behavior.

Proximate cause: a legal device to place a limit on the chain of causality.

Two Categories of Torts

1. Intentional

Requires “willful and malicious” motive besides the other criteria of liability

Allows the awarding of punitive damages

2. Negligence

Requires only liability to be proven

Includes anyone employing or controlling the tortfeasor

Agency liability (a type of vicarious liability for the acts of others): supervisors and employers can be found liable if they knew or should have known about the wrongdoing of another

Governmental immunity: may offer protection against lawsuits if not outside of scope of duties or a result of reckless or wanton behavior.

Negligence: Liability through carelessness

Financial loss:

Special: actual monetary loss

General: for one’s pain and suffering (the text mentions that most courts will go 3 to 5 times the special loss.

Malpractice: professional conduct and skill that fall below the standard established by similar professionals in good standing

A legal duty exits for counselors, as defined by one’s professional ethics code

Professionals must follow a standard minimum of special knowledge and abilities. Unfortunately, this is very vague for mental health practice.

With ambiguous professional standards, professionals will be more likely to be found negligent rather than having performed malpractice.

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