ETH5556 - SECTION 6: PROCESSES FOR EXAMINING THE COMPETING INTERESTS AND PRINCIPLES
In yourceus.com's introductory course on ethical decision making: Ethical Decision Making: A Primer for Mental Health Clinicians, a considerable amount of time was spent examining the competing principles and interests of ethical decision making. This is because 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.
Mental health clinicians, in their expert and leadership role, must seek to find the balance that best promotes the primary mission of their profession - promoting the well-being of the client. A logical ordering was proposed for deciding which interests and principles to examine first.
The balance is not simple. While the best interests and welfare of the client will be the key element, there are several other components that must be balanced, as well. The logical ordering that was proposed is shown below, with explanation to follow. You may note that much of this material has significant alignment with professional codes of ethics.
- 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 the Ethical Process: The responsibilities of the clinician towards the client, including the obligations agreed to concerning the counseling relationship
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 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 counseling profession.
1) Does the decision harm the professional or ethical reputation of the counseling profession?
2) Does the decision harm the capacity of other counseling professionals to perform their tasks successfully?
3) Does the decision hinder the larger public from profiting from the benefits of the counseling 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 counselor can realistically provide.
No withholding information about treatment alternatives that are different from those practiced by the counselor.
No misuse of confidential information.
The Ethical Decision Making Tree
The Third Principle/Component One: Protect Client Autonomy
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 counselor?
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: Forward Client Well Being
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 Ethical Decision Making Tree
The Fourth Principle: Forward Clinician Autonomy
Evaluate whether the decision serves to promote the well-being and autonomy of the clinician, and protect the short and long-term capacity of the clinician to perform good clinical work
1) Does the decision threaten the health and well-being of the clinician in any way that may impede the ability to continue effectively treating the client over time?
2) Does the decision require the clinician to violate important personal beliefs, values, needs and interests?
The Ethical Decision Making Tree
Evaluate whether the decision is consistent with the clinician's role as a leader, oriented towards fulfillment of the primary mission as defined collaboratively by the clinician and client and formalized in the agreed plan of treatment, and towards fulfillment of the responsibilities towards the client and the profession as defined by professional standards.
There are logical reasons why these competing principles have been ordered in this way. The ordering, therefore, is consistent with standards of practice that are observed by most clinicians.
Because the mental health profession has deep connections to the medical profession, there are certain biases in this ordering. The most important principle is concerned with whether the decision creates harm for the client – particularly with regard to potentially fatal consequences - or whether the decision prevents harm from coming to the client.
For instance, it is this consideration that allows for breaking confidentiality when the life or safety of the client is at stake, which under other circumstances would be a violation of the integrity of the profession. If the patient does not remain alive, it becomes very difficult for any further positive outcomes to occur.
However, if the clinician wishes to forward information to another professional simply to aid in the client's growth, but without "imminent risk" to the client, confidentiality is not waived without a release of information. The integrity of the profession, as held in maintaining confidentiality, is a higher principle than promoting growth.
Likewise, the client's right to autonomy does not supersede the clinician's obligations to protect the integrity of the profession. The clinician is not obligated to perform activities that threaten the integrity of the profession simply because the client requests those activities.
For instance, if a client requests treatment that is outside the clinician's area of competence, or a treatment approach that is ineffective, the clinician has obligations to the integrity of the profession to decline to provide those services. Even with the client's autonomous willingness to accept responsibility for the results of the treatment, the clinician is not excused from the leadership responsibilities involved in deciding what course of treatment to pursue.
As we have discussed in yourceus.com's, intermediate course on ethical decision making: Leadership, Authority and Ethical Decision Making for More Advanced Clinicians, the clinician's leadership responsibilities towards the primary mission of the profession tend to relegate the rights and autonomy of the clinician to a lesser position in this ordering of elements.
This position of having the clinician's rights, needs and autonomy being the last element to consider in any ethical situation is the heavy price of being in a position of leadership. It is also the price each clinician autonomously agrees to when he/she accepts the rights that come with being licensed in a mental health profession. The right to hold that license is only granted to those professionals who agree to this set of responsibilities.
This model for looking at the competing elements of ethical decision making is a very good starting point for evaluating complex ethical decisions. It helps the mental health clinician to look at the most important elements in the right order
However, because the model has some deep ties to the medical profession of the Western culture, it contains some biases that cause the model to be less useful in ethical dilemmas with clients from other cultures. Let's use our introductory scenario to see why this is so.
In our introductory scenario, the dilemma for the mental health clinician resides in the very definition of harm that one would be ascribed to the situation - two underage youngsters are about to be put into a situation where they will have sex with adults in their community. In the United States, under the definitions of the ethos or culture in which these acts are being considered, there is a clearly defined law that has been written to protect minors from the harm that comes from predatory adults using those minors for their sexual gratification.
Is that what is occurring in this situation as it has been described? Is the law that has been written appropriately applicable to this situation, or are there fundamental differences in the meaning of the sexual acts between the adults and the minors due to the cultural differences that exist? If the clinician decides to make a call to Child and Family Services in order to "protect" the children, will it be a helpful or a harmful act?
One might anticipate the possible consequences. The adults in that community, especially the identified client, might be investigated for potential child abuse. Threats of jail time might explode out of this. The tensions and doubts about cross-cultural issues – which are already present in the mind of the identified client - would almost certainly be heightened and exacerbated. This might be the final straw that convinces Jula to move his whole family back to his country of origin – if he is allowed to do so by the legal system.
Would this concern about possible child abuse be legitimate, or an indication of pressures to conform to Western values? As Sue and Sue would argue, "Because therapeutic and ethical practice may be culture-bound, therapists who work with culturally different clients may be engaging in cultural oppression using unethical and harmful practices for that particular population." (28) (emphasis mine)
A call to Child and Family Services, which would likely be justified under the law for clinicians and other professionals in the US, might just as clearly be seen as an act that could produce very harmful consequences for these children in this community. If our first principle is to do no harm, then we are at the crossroads of a serious dilemma.
This dilemma is a direct off-shoot of the conflict that can occur between the Legal and the Ethical dimensions of practice. As we noted earlier, the laws on the books at each point in time are a reflection of the values of the people in the strongest position to shape law. Therefore, laws will generally be inclined to contain the prejudices and biases of the dominant culture to an even greater degree than the ethics of the mental health professions.
In fact, one could argue, one of the primary purposes of the law is to apply coercive pressures on the counseling professions (and other health and service professionals) to adhere to the determinations of the political wing of the culture in certain important areas – based upon biases and prejudices that exist around such areas as sex, death, mental illness, etc. What is an ethical and conscientious mental health professional supposed to do?
While it might be more comforting for the trainee if there was a definitive answer to this difficult situation, in truth this scenario has over time consistently defied any clear conclusions or consensus. In every live training program in which this scenario has been presented, heated and - at times - contentious discussion has been the norm. No easy conclusions have been reached.
The solution to this situation calls for what Heifetz would call a Type III adaptive solution, (as opposed to a Type I or Type II solution) (13) where the exercising of a particular kind of leadership is required. Type I adaptive solutions are technical in nature: one can go get help from an expert, and the expert can provide the technical skills or knowledge to get the problem solved. (13)
For example, a patient has a faulty heart valve and the expert – a surgeon – responds with a technical fix - repairing the faulty valve through surgery. There is a clear outcome that is anticipated, and the patient does not need to enter into the adaptive process and change his or her values, perspectives or orientations. He or she just needs to survive the surgery.
In Type II adaptive solutions, there are still technical fixes possible, but any technical fix would require the participation of the patient in parts of the solution. (13) The example given by Dr. Heifetz is a situation of heart disease, where the expert can provide certain technical fixes, but the patient must also change values and behaviors in order to adapt to the demands of a changed reality with regard to his or her heart heath. (13)
In Type II adaptive solutions, as in Type I adaptive solutions, the parties involved will usually come to agreement on what the end goal of the adaptation will be.
A Type III adaptive solution is one in which even the problem definition and the outcomes are uncertain and unclear, since the changes required are more related to expectations, hopes, values, habits or perceptions. (13) The example given by Dr. Heifetz is terminal cancer, where the preferred goals of the adaptive work - curing the cancer – are not possible even with the best technical solutions. (13)
With Type III adaptive solutions, the work with the patient becomes to define what needs to be done to adapt to the changed reality: accepting and preparing for one's death, planning for the well being of one's loved ones after one's death, etc.
In Type III situations, there may be considerable disagreement on the part of the parties involved concerning what the outcomes should be for the adaptation, as well as about the necessary steps to reach those outcomes. The leader may be just as unclear about this as the client being served, since they are working together towards a changed reality that is – at times – very uncertain.
Type III solutions are process oriented - with flexibility inherent in the process - and transformative and dialogic in nature. Type III solutions are most likely to require changes on the part of several of the players in the process. This is usually how complex ethical decision making will occur.
In Type III adaptive problems, the adaptive work usually takes the form of a dialogue between the leaders / facilitators and the parties whose values, behaviors, and perceptions need to adapt to pressures from a reshaped reality. These parties may include the clinician, the client, the profession, or even the society at large – as there will be instances where it may be determined that the client's values, beliefs and perceptions are "better" or "more right" than the society's. In such instances, the profession or the society at large may be asked to adapt.
This is the position taken by Sue and Sue, when they state:
"Our professional organizations need to adopt ethical guidelines, codes of ethics, standards of practice, and by-laws that are multi-cultural in scope. Omission of such standards and failed translation into actual practice are inexcusable and represents a powerful statement of the low priority and lack of commitment to cultural diversity." (28)
In our scenario, the dominant culture's perspectives on definitions of "normal" and "abnormal" sexual relations between adults and adolescents does not allow much room for cultural variation. The law is very clear, very concrete and relatively inflexible. This legal guideline would create pressure for mandatory reporting – regardless of its effects on the parties involved.
The law would point in the direction of a Type I adaptive solution. There is a legal problem which requires a technical fix: prohibit and sanction the aberrant behavior by reporting the situation to the Department of Child and Family Services.
In so doing, the law would be defining the behaviors involved as deviant based upon the ideals, values and beliefs of the dominant culture. The law would then require that all parties adhere to those ideals, values and beliefs whether those ideas made sense for all the parties involved or not.
Here is the problem. Would sex between White middle class adults and underage teenagers be deviant, as well as potentially damaging to and exploitative of the teenagers? Almost certainly. It would in all likelihood create residual negative feelings and possibly traumatic reactions on the part of the parties involved.
However, how much of these reactions and traumas would be attributable to the conflict between cultural expectations and what occurred, as opposed to the actual effects of the experiences for the adolescents? How differently would the interpretations be for parties from a completely different culture?
Specifically, would the teenagers within the South Sea Island culture experience their sexual experiences in a way that would create trauma or harm? Would the adults participating in it have the same motives as the White middle class adults, thereby creating a situation that could be construed as potential child abuse?
Or is the entire system of values, beliefs, reactions and responses so fundamentally different that the experience can only be evaluated wholly within the frame of reference of the culture in which the behaviors are occurring? If so, the clinician would not necessarily see anything that meets the definition of potential child abuse.
These are questions that should be examined in the context of a detailed and principled search for the greater good in this scenario. If it turns out that the adolescents are likely to be harmed in this context, it removes one aspect of the ethical conflict that makes the decision of the clinician more difficult.
However, if the law was not a consideration, and the clinician was allowed to evaluate the effects of this set of behaviors without cultural bias, is it possible that the clinician might be persuaded to see this custom as something positive - viewed fully in its own cultural context? Does this consideration change the ethical (as opposed to legal) responsibilities towards the client in this situation?
To what degree does the clinician even have the right and/or responsibility within an ethical (as opposed to legal) framework to ponder these questions?
On the other hand, since the client has agreed to live in the United States – and has therefore has become a member of the larger community under the law – what responsibilities to live in accordance with the law has the client implicitly and explicitly agreed to in an autonomous way? If having a child abuse reporting law serves a greater good for the larger community, shouldn't citizens be expected to relinquish certain individual rights in order to further the common good?
We have already seen that one of our ethical decision making tools - our ethical decision making tree - begins to break down in situations of cultural diversity. In addition to our ethical decision making tree, there are also a number of tests that are traditionally used to help with the ethical decision making process. For the sake of thoroughness, let's see if these ethical tests can offer anything useful here:
Tests of Ethical Decision Making
Relevant Information Test: Have I/we obtained as much information as possible to make an informed decision and action plan for this situation?
Involvement Test: Have I/we involved all who have a right to have input and/or be involved in making this decision and action plan?
Consequential Test: Have I/we anticipated and attempted to accommodate for the consequences of this decision and action plan on any who are significantly affected by it?
Fairness Test: If I/we were assigned to take the place of any one of the stakeholders in this situation, would I/we perceive this decision and action plan to be essentially fair, given all of the circumstances?
Enduring Values Test: Do this decision and action plan uphold my/our priority enduring values that are relevant to this situation?
Universality Test: Would I/we want this decision and action plan to become a universal law applicable to all similar situations, even to myself/ourselves?
Light of Day Test: How would I/we feel and be regarded by others (working associates, family, etc.) if the details of this decision and action plan were disclosed for all to know? (30)
Will the application of these seven tests get us closer to knowing the most ethical course of action with regard to this scenario? Take a couple of minutes to examine our scenario in light of these tests. Do they help, or is there something more complex needed to determine the most ethical course of action?
We have argued in yourceus.com's intermediate course on ethical decision making: Leadership, Authority and Ethical Decision Making for More Advanced Clinicians, that complex ethical decision making requires that the clinician have a large store of information at his/her disposal in the knowledge stage of the ethical decision making process: codes of ethics, law and statutes, ethical decision making processes, etc.
It may be helpful at this point to bring in some of this expert knowledge, by examining relevant sections from the different codes of ethics for the mental health professions, beginning with the professional counselors. While the ACA code of ethics does not contain sections that might directly address this essential conflict, the NBCC Code of Ethics places the following considerations in the following order:
12. Through an awareness of the impact of stereotyping and unwarranted discrimination (e.g., biases based on age, disability, ethnicity, gender, race, religion, or sexual orientation), certified counselors guard the individual rights and personal dignity of the client in the counseling relationship.
13. Certified counselors are accountable at all times for their behavior. They must be aware that all actions and behaviors of the counselor reflect on professional integrity and, when inappropriate, can damage the public trust in the counseling profession. To protect public confidence in the counseling profession, certified counselors avoid behavior that is clearly in violation of accepted moral and legal standards. (19)
The AAMFT Code of Ethics also does not directly address this issue, but states:
Both law and ethics govern the practice of marriage and family therapy. When making decisions regarding professional behavior, marriage and family therapists must consider the AAMFT Code of Ethics and applicable laws and regulations. If the AAMFT Code of Ethics prescribes a standard higher than that required by law, marriage and family therapists must meet the higher standard of the AAMFT Code of Ethics. Marriage and family therapists comply with the mandates of law, but make known their commitment to the AAMFT Code of Ethics and take steps to resolve the conflict in a responsible manner. The AAMFT supports legal mandates for reporting of alleged unethical conduct. (3)
The NASW Code of Ethics addresses these issues most directly, by stating: (18)
Instances may arise when social workers' ethical obligations conflict with agency policies or relevant laws or regulations. When such conflicts occur, social workers must make a responsible effort to resolve the conflict in a manner that is consistent with the values, principles, and standards expressed in this Code. If a reasonable resolution of the conflict does not appear possible, social workers should seek proper consultation before making a decision.
In another section, the Social Work Code states:
Social workers' primary responsibility is to promote the well-being of clients. In general, clients' interests are primary. However, social workers' responsibility to the larger society or specific legal obligations may on limited occasions supersede the loyalty owed clients, and clients should be so advised. (Examples include when a social worker is required by law to report that a client has abused a child or has threatened to harm self or others.) (18)
In summation, there are no absolutely clear guidelines in the codes of ethics that explain how the mental health clinician should resolve these fundamental conflicts.
At this point, most mental health clinicians might be inclined to take the less challenging and safer choice in terms of ethical decision making. One may simply accept the biases and prejudices that are written into the letter of the law or codes of ethics - and require that the client do all of the adaptive work to adapt to the dominant culture.
In fact, many clinicians who have examined and discussed the introductory scenario have argued that since the client agreed to reside in this country, he agreed to abide by the laws and rules of this culture. Moreover, mental health clinicians who violate the law are at risk for having their licenses suspended or revoked by their state licensing board.
Would the larger community not be harmed by the loss of an experienced and principled clinician in ways that outweigh the client's right to follow his own culture's values in the melting pot of America? Or is this just another example of how the deck is stacked against the non-dominant cultures of this country in a way consistent with cultural chauvinism?
Please do not imagine that this sort of inquiry is meant to encourage you to break the law. However, in order for you to be adequately prepared to operate with cultural competence, it is important to be willing to engage in this difficult process of questioning and willing to look below the surface and beyond the simple answers.
At the most complex level of ethical decision making - particularly in situations where you are working with competing value elements from multiple cultures – one will often see that the traditional tools of ethical decision making are insufficient to provide easy or perfect solutions to these kinds of dilemmas. Other, more complex tools or approaches are required.
As is the case in many aspects of mental health practice, sometimes it is process which generates the progress. This is the point at which the leadership responsibilities of the mental health practitioner are made more manageable by the process of including the client in the adaptive process in ethically appropriate ways. Using the Heifetz model, the ethical decision making model applies Type III adaptive solutions, using dialogic processes in collaboration with a responsible client.
In the next section, we will look at some of the options that may create the best balance of the competing demands at work here. We hope that the tools will be applicable because they are more flexible. With that flexibility, though, there is less certainty and more responsibility for the clinician in terms of difficult decisions and choices.