ETH1101- SECTION 1: THE COMPETING PRINCIPLES AND INTERESTS OF THE ETHICAL DECISION MAKING PROCESS
The Process of Ethical Decision Making
The process of making ethical decisions is concerned with identifying and balancing principles and interests that often compete and conflict with one another in complicated ways. A code of ethics for clinicians is usually a fairly lengthy document, so it is clear that there are a quite large number of principles and interests that will be involved in this process.
The code of ethics is a profession’s compilation of its best attempt to balance the needs and demands of several interested parties. Let’s look at these parties:
The public (through its legislative representatives)
The profession (through its representative organizations)
It incorporates input from relevant laws and statutes. The state and federal government maintain the right to this input through their role as guarantors of ethical practice through licensure regulations. Because laws are written by legislators (hopefully with the input of members of the mental health professions), the laws are – in their ideal state – advocating for the overall well-being of the larger public whom legislators represent.
In real terms, however, the larger public includes not only people who utilize mental health services, but also parties who pay for mental health services, including taxpayers, insurance companies, and businesses. Laws are written based upon legislators’ best understanding of the common good, balancing pressures from all of the groups who have a stake in the outcome of the laws.
This is an imperfect process. Some groups have better access to the legislators, and can therefore more effectively present their views in ways that serve their own self-interests – at the expense of other parties in the process. Accordingly, the laws will not always serve the well being of the clients whom mental health clinicians serve.
Furthermore, laws are generally reflective of the views and perspectives of the dominant majority, to a large degree based upon the values, beliefs and biases of the dominant ethos. This presents particular difficulties for clients who come from cultural backgrounds that are different than the dominant majority.
Professional codes of ethics in the field of mental health address the need to respect cultural difference in ways that the law will not necessarily address. The tensions that are created in these areas leave open the possibility that the legal and the ethical can, at times, be in conflict or even incompatible. This will, of course, create certain problems in the arena of ethical decision making.
Through their lobbying arms, the professional bodies that represent mental health clinicians (NASW, LPCA, AAMFT, etc.) advocate for good laws and statutes in the field of mental health. This is an important part of their work to minimize and resolve the differences between the law and the codes of ethics that direct individual clinicians in their practice.
When it is not possible to re-shape laws and statutes in ways that better incorporate the values and understandings of the mental health professions, then the professional codes of ethics have to be written in ways that incorporate the demands of the law.
This is a continually evolving process, and there can be a lag time between when new law becomes effective and when codes of ethics can be re-shaped in ways that absorb the meaning and directives of the new law. For this reason, it is important that mental health clinicians remain attuned to changes in laws and statutes, and seek guidance and direction about how this affects the ethical decision making process.
The next area of balance – and tension – comes from the mental health professions themselves, and the representative bodies for those professions. As guardians and advocates for their members and their profession as a whole, it is sometimes necessary to take stances that help the professions to grow and thrive, and support the well being and livelihood (i.e., salaries) of the people that practice within the profession.
If the profession becomes one in which the hardships of the work outweigh the rewards of the profession, then it becomes increasingly difficult to find people who are willing to take on the responsibilities of providing services. For this reason, it is altogether appropriate for the organizations representing the mental health professions to take these positions of advocacy.
At the same time, this must be balanced with the need to direct, support and encourage mental health practitioners to provide excellent service to clients at an affordable cost. As service professionals, mental health clinicians have obligations – often tied to their licensure – to serve the common good.
This creates tensions within the professions. If the professions and their representative bodies advocate successfully for better working conditions for their members – with fewer responsibilities and higher wages – there are impacts to clients and potential clients in terms of the accessibility and affordability of services. The better the working conditions for clinicians, the more this aspect of serving the public good is affected.
The professional bodies responsible for developing their respective professional codes of ethics attempt to strike a delicate balance between these competing pressures, while simultaneously responding to pressures from changes in laws and statutes that affect service delivery.
If individual clinicians ever feel confused and conflicted about this aspect of their work, it is a tension that is built into the very nature of the service professions. Society does not allocate unlimited resources to the delivery of mental health and other services dedicated to the public good.
This can place mental health clinicians and other service professionals in the position of making complex value judgments about the best way to allocate the resources that are available. Since the available resources include the time, energy and emotional commitment of the service providers, it creates a scenario in which service professionals can struggle to find appropriate boundaries on how much their work responsibilities intrude into their own personal well being.
Some of the most personal and most difficult ethical dilemmas exist at the junction between these resource issues and the commitment to service that is at the heart of the business of mental health. This issue, however, is one that will require more extensive study, and takes us beyond the scope of this introductory course on ethical decision making. It is a topic that will be examined in more detail in a course for senior clinicians set to debut in the middle of 2005.
This course, meanwhile, will focus instead on an introduction to the fundamental principles of ethical decision making. In this, the individual clinician can begin by looking at the balancing act that must be engaged in between a number of principles and elements that are written into a code of ethics.
Codes of ethics are generally long and complex matters, covering a number of principles and interests related to practice and professional life. However, when you follow all the numerous principles and interests back to their source, however, you see they are all derived from only seven core elements.
Of these seven, six line up together. There are three elements that are the client's purview, and three corresponding ones that are in the clinician's arena.
The best interests and welfare of the client
The best interests and welfare of the clinician
The rights of the client to make his/her own decisions
The rights of the clinician to make his/her own decisions
The responsibilities of the client in making his/her own decisions, including the obligations agreed to concerning the therapeutic relationship
The responsibilities of the clinician towards the client, including the obligations agreed to concerning the therapeutic relationship
Together, the rights and responsibilities of the client or the clinician form the basis of what is commonly known as autonomy. Both parties, in the course of treatment, have certain rights with regard to autonomy.
Both parties can choose whether to enter into a therapeutic relationship with the other, make decisions about how to proceed in that relationship, and decide to exit the relationship.
Both parties also have responsibilities. The responsibilities limit the rights. Neither the clinician nor the client is allowed to do whatever they want in the context of the therapeutic relationship.
What limits are set on each party is something that should ideally be clarified and agreed to prior to beginning the therapeutic relationship. This will be discussed in more detail later in this training.
The seventh principle belongs to the clinician alone: the responsibility of the clinician towards the integrity and well-being of the mental health profession.
This principle appears in the ethical code in clinical arenas, but also in more non-clinical areas, such as responsibility towards colleagues, ethics in the use of assessment instruments, ethics in research and ethics in the use of advertising.
This principle is interwoven with the other six core principles. The overall integrity and trustworthiness of the mental health profession has an important, if indirect, impact on how effective the counseling will be, and therefore on the welfare of the client.
In fundamental ways, it also contributes to the well-being of each clinician: it affects his/her ability to provide a service that will be sanctioned, supported and paid for by the public. It also has a clear impact on both the rights and responsibilities of the client and the clinical professional.
In fact, a close examination of the code of ethics reveals the interwoven and overlapping nature of all the components that make up the code.
For instance, confidentiality affects the integrity of the therapeutic relationship, hence the welfare of the client, and the integrity of the mental health profession. Ethical decisions about confidentiality therefore concern more than one of the seven core principles and interests. At times the different interests and principles can support each other.
At other times, the principles and interests can conflict with one another, as you will see when you try to apply certain sections of the ethical code to real life situations.
So where does a clinician begin to form some operational principles for deciding the ethics of a given situation? How does a clinician begin to order the relative importance of these principles and interests when they compete and conflict? How does a clinician get right the shadings and degrees of the different elements involved here?
In addressing this important question, we are going look deeply at the larger principles and work our way from there to more concrete and specific issues in the course of looking at our analysis of the scenarios.
The first two of the larger principles is related to something very important: What is the purpose of the mental health professions? From the perspective of the interests and welfare of the clinician, the purpose of the mental health profession might be seen as a way to make money, or a way to find professional satisfaction.
This, however, is really only a secondary purpose of the mental health profession. The primary purpose of the mental health profession is to promote the welfare and interests of the client in becoming healthier. If a clinician focuses on his or her own needs and interests to the detriment of the well being of the client, then the state or other governing body will object to the ethics of the clinician, and may reduce, restrict or deny the clinician's right to practice.
So two principles in the ethical decision making process are related to the primary purpose of counseling: Does the ethical decision serve to promote or improve the well being of the client, or to harm the well being of the client.
As in the medical profession from which counseling was developed, the more important, or higher, of these two principles is concerned with whether the decision creates harm for the client, or prevents harm from coming to the client.
Doing no harm is a higher principle because if a decision is made that merely does not promote the welfare of the client, the client is at least no worse off. On the other hand, if a decision is made that does not protect the client from harm, the client is worse off.
There are, of course, many kinds of harm that may come to a client from the decisions a clinician makes. Some kinds of harm are worse than others.
The most grievous harm involves loss of life, then other physical threats to the safety of the client, then threats to the emotional well being, and so on, in decreasing order of importance as ethical decisions are made. Thus the ethical decision tree begins to be developed.
The Ethical Decision Making Tree
The First Principle: Do No Harm
Evaluate whether the decision will either bring direct harm to the client, or insufficiently protect the client or the public from harm.
In order of importance:
1) Does the decision threaten the life or physical safety of the client or others?
2) Does the decision threaten the client with profoundly damaging and non-therapeutic emotional consequences?
3) Does the decision threaten the client with life altering and irreversible social, material or monetary hardships?
4) Does the decision exploit the client in ways that harm his/her well being?
The Process of Ethical Decision Making
Obviously, if the ethical decision only causes harm to the client's hairdo, or to the client's nap schedule, then there is not enormous cause for alarm.
The important issue to consider here is that the first principle or interest to examine in an ethical decision making process is this: At the very least, do no harm.
You then begin the complex process of anticipating and evaluating the degree of harm that may befall the client from each of the choices that is before you. If the degree of harm is too great, it outweighs all other considerations and determines your ethical course to follow.
This is true at almost every point in the relationship between clinician and client, and no matter what the nature of your therapeutic relationship is to the client. This is important enough that we will use a scenario to demonstrate.
Ethical Decision Making: Scenario
James S. is a licensed clinician. He is in a session with Alex R., one of his more disturbed clients. Alex is despondent, and late in the session, he pulls out a gun and puts it to his head, saying he is going to kill himself. James works very hard to persuade Alex to put the gun down. Alex is ready to do so, but then considers and tells James, "If I do, you are going to call the police and have me committed. I won't go back to the hospital again. I'd rather die." James responds as follows: "I promise I will not do that. Let's work things out between just the two of us. I have ethical obligations to you and to the mental health profession not to engage in dishonest behavior, so I can assure you I will not do that." With this, he is able to convince Alex to give him the gun. He brings the gun out to the security desk and asks the security officer to call the police so that Alex can be escorted to the hospital. When Alex complains he had been lied to, and won't trust James any more, James says, "My first obligation is to keep you safe. If you are not alive, we can't have any hope of improving things. Besides, if I let you kill yourself, you would never trust me again, would you?"
The Process of Ethical Decision Making
The next principle that must be considered is the effect of the ethical decision upon the integrity of the mental health profession as a whole. Whether in the context of counseling, or in the other arenas in which clinicians operate, such as research, marketing, or interacting with the public, decisions to act in a dishonest or deceitful manner can have an impact upon whether clients are able to seek counseling with trust and confidence, or fear and doubt.
This principle is considered next because it can have far reaching effects. The integrity of the mental health professions serves as a support and backdrop for the success of each clinician, and as a protection from harm for each client.
When an individual clinician breaches this integrity, it causes harm not just for the profession, but for the clients who put their trust in the integrity of the mental health profession to protect them from harm. This means all clients.
The delicate girdle of trust that underlies successful counseling is damaged when the efforts of all parties to guarantee ethical services are seen to have failed. Clients who may already be apprehensive about investing their trust are harmed, even when they are not directly in harm's way.
In this way the failures of any one clinical professional, to some extent, becomes the failure of all. Even when the ethical dilemma for a clinician is not in an area that is clinical in nature, such as research or the marketing of oneself, this principle or interest comes only after the assurance of no harm to the client, due to its potentially far reaching effects.
As in the case of harm to the client, there are degrees and shadings of harm to the integrity of the profession that must be known in evaluating the specific ethical decision. Again, we will try to look at some of the shadings in the scenarios.
The Ethical Decision Making Tree
The Second Principle: Protect the Integrity of the Profession
Evaluate whether the decision will harm or preserve the integrity of the profession.
1) Does the decision harm the professional or ethical reputation of the profession?
2) Does the decision harm the capacity of other clinical professionals to perform their tasks successfully?
3) Does the decision hinder the larger public from profiting from the benefits of the mental health profession?
Elements of Protecting the Integrity of the Profession
No inhumane or discriminatory treatment towards groups or persons.
No dishonesty, fraud, deceit, or misrepresentation while performing professional activities.
No exploitation, sexual or otherwise, of clients, trainees, or students.
No practicing under the influence of non-prescribed drugs or alcohol.
No practicing outside one's area of competence.
No misuse of personal or professional relationships either to solicit clients, or request fees for making referrals.
No participating in dual relationships that create conflicts of interest that harm the client or compromise the counseling.
No continuing a treatment relationship when it is clear that the treatment is no longer helpful to the client.
No allowing an individual or agency that is paying for services to influence treatment decisions to the detriment of the client.
No making claims or guarantees that promise more than the clinical professional can realistically provide.
No withholding information about treatment alternatives that are different from those practiced by the clinical professional.
No misuse of confidential information.
The Process of Ethical Decision Making
If the ethical decision does not harm the well being of the client or the mental health profession, then the first hurdles are cleared. Unfortunately, the decisions get more complicated here.
The next two principles that should be looked at in evaluating any ethical decision are considered at almost the same time, and are accorded just about the same weighting in the decision making process.
The Ethical Decision Making Tree
The Third Principle/Component One
Evaluate whether the decision serves to promote or hinder autonomy in the client.
1) Does the ethical decision include involving the client in important decisions at all times, an important consideration called "informed consent"?
2) Does the ethical decision include consideration for the values, goals, needs, wants, ideas, and choices of the client at least equal to consideration for the same items of the clinical professional?
3) Does the ethical decision promote increased responsibility for the client, except where such responsibility may harm the client?
Elements of Protecting the Autonomy of the Client
No formulating treatment decisions, plans or goals without the participation and informed consent of the client.
No engaging in treatment with foreseeable risks without informed consent for the client of those risks.
No charging a fee for anything without informed consent for the client in advance of the fee.
No taking action for nonpayment of fees without advising the client first and providing an opportunity to settle the debt.
Except in those instances excepted by law, no releasing of confidential information without obtaining a release.
No recording counseling sessions without written, informed consent.
The Ethical Decision Making Tree
The Third Principle/Component Two
Evaluate whether the decision serves to promote the well being of the client and/or advance the course of treatment.
1) Does the decision promote the physical/emotional/spiritual health and well being of the client?
2) Does the decision help the client to reach the agreed to treatment goals?
3) Does the decision protect the integrity of the therapeutic relationship and the treatment process?
The relatively equal weight that each of these principles holds in ethical decision making contributes to some difficult decisions for the clinician.
For example, if a clinician, in his or her professional experience, has reason to believe that progress in treatment will be hindered by certain decisions that a client is making, which principle is valued more, autonomy or promoting well being?
Except in cases where a client is going to make a decision that could result in profound harm to him/herself, a client's autonomy is viewed as a relatively inalienable right.
Yet, promoting autonomy in the client such situations can stray from the primary purposes of counseling: to improve the well being of the client.
The devil, in this case, is in the details. How much autonomy to promote - or even leave unchallenged in the client - versus how much to champion the fundamental principle of growth and progress?
This becomes even more interesting for the clinical professional when it comes to evaluating the relative importance of values - the values held autonomously by the client versus the values that the clinical professional is promoting by championing growth and progress.
This process will seldom be easy. As we look at the scenarios in more detail, we will look more closely at the complex sets of decisions that become involved in coming to ethical resolutions.
First, however, we must add the final pieces of our decision tree.
To this point, we have examined the relative importance of the right of the client to protection from harm, the need of the clinician to protect the integrity of the profession, the right of the client to autonomy, and the need to focus on the well being of the client.
Where in this schema do we find the importance of the needs, interests and autonomy of the clinician?
The trouble is that those factors that promote the primary purposes of counseling exist, to some degree, in opposition to the needs, interests and autonomy of the clinician.
This is not to say the needs, interests and well being of the clinician don't at times operate in support of the primary purposes of counseling. They do. The clinician who does not attend to his or her own needs and interests is likely to suffer from professional burnout very quickly. This does not further the interests of either individual clients or the profession as a whole.
However, the demands and obligations of the mental health profession limit how much and under what circumstances the clinician may attend to his or her own needs, interests and well being.
To reiterate a point made earlier, while the primary purpose for the clinician to engage in counseling may be to take care of his or her self-interests, from the point of view of the state and the mental health profession, the well being of the clinician will be considered a secondary purpose, not a primary one.
This is to say that when there is a conflict between the needs and interests of the clinician, and the well being of the client or the integrity of the profession as a whole, there will tend to be more weighting on the side of the well being of the client than on the well being of the clinician.
It is, of course, more complex than this, as the varied shadings of the different principles interact in the real world.
However, we are now ready to present a better visual representation of how the different principles interact in relation to one another, and how this informs the process of ethical decision making.
First Principle: Best interests and welfare of the client: At the very least, do no harm
Second Principle: Responsibilities of the clinician to the integrity of the profession
Third Principle, part 1) Autonomy of the client, including the right to make decisions and the responsibility for decisions made
Third Principle, part 2) Best interests and welfare of the client: Promote growth
Fourth Principle) Autonomy and best interests of the clinician, including the right to make decisions
Foundation Element Underlying Process: The responsibilities of the clinician towards the client, including the obligations agreed to concerning the therapeutic relationship
The Process of Ethical Decision Making
The responsibilities not to bring the client harm (First Principle) are most heavily weighted the greater the degree of harm with which the client is threatened.
As the potential harm that can come from the decision decreases, the clinician can pay attention to other ethical issues, beginning with the protection of the integrity of the mental health profession (Second Principle).
As the threat to the integrity of the profession decreases in the decision, then the clinician pays increasing attention to the autonomy of the client(Third Principle, part 1) and the promotion of the well being of the client (Third Principle, part 2).
When the most important concerns about the client's autonomy and promotion of the client's well being are less involved in the ethical decision, then the clinician can look to his or her own well being, and his or her autonomy (Fourth Principle).
The clinician's responsibilities towards the client and towards the profession as a whole overlie the entire ethical decision making process.
When a clinician is presented with an extreme example of one of these interests or principles at a decision making time, it will usually lead to a fairly easy and straightforward decision. Other times - most times - things will not line up so conveniently. It is in the subtle details, the degrees, the grey area of ethics, that the clinical professional is presented with his or her most difficult decisions.
What degree of harm is allowed to the client's well being in order for a clinician to have the right to factor in the clinician's interests or autonomy? If a clinician needs to move to another state to further his or her career and the progress of all his or her clients is damaged by this personal decision, is it unethical?
If a client commits suicide following the move of the clinician to another state, is it the clinician's fault, is it a poor ethical decision even when the clinician has arranged for competent services to be available to the client? The clinician, after all, has not acted to sufficiently protect the client from harm.
These are the humbling kinds of questions in the grey area of ethical decision making, questions that codes of ethics will be unable to fully settle. There are deep and ultimately distressing questions that may not be capable of being answered by any ethical decision making process.
These questions show the limitations of the decision tree and the stages of ethical decision making in this introductory primer to ethical decision making.
This does not invalidate the decision tree, nor the use of the stages of ethical decision making. It simply points out the need to use these two items as tools with both uses and limitations. It also points out the ongoing and continuous need to explore and improve ethical decision making processes in the context of being a practitioner of this profession.
With the study completed of both the stages of ethical decision making, and the decision making tree, it is now time to turn to the other two questions that are relevant to the making of ethical decisions: who is the client, and when is the client a client?
These two questions are concerned with helping to define the therapeutic relationship.
Post-test Preparation: Review questions
At this point in the training, the trainee should be able to answer the following questions:
What are the seven interests and principles involved in ethical decision making?
What is the most important principle and why should it be looked at first in any process of ethical decision making?
What is informed consent and how does it relate to the concept of client autonomy?
What two principles are viewed as operating in a relatively equal position, and what complications does this create for ethical clinical practice?
From the position of the licensing bodies, what is the primary purpose of the mental health profession and how does this affect clinician autonomy?