ETH8283 - SECTION 6: THE COMPETING PRINCIPLES AND INTERESTS OF THE ETHICAL DECISION MAKING PROCESS: A REVIEW
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. Mental health clinicians, in their leadership role, must seek to find the balance that best promotes the primary mission of their profession - promoting the well-being of the client.
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 Process of Ethical Decision Making: Interests to Balance
The best interests and welfare of the client
The rights of the client to make his/her own decisions
The responsibilities of the client in making his/her own decisions, including the obligations agreed to concerning the counseling relationship
The best interests and welfare of the clinician
The rights of the clinician to make his/her own decisions
The responsibilities of the clinician towards the client, including the obligations agreed to concerning the counseling relationship
The seventh and final principle belongs to the clinician alone: the responsibility of the clinician towards the integrity and well-being of the counseling 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.
These seven principles, involving both rights and responsibilities, are at the heart of the competing principles and interests involved in ethical decision making.
These factors operate in a complex relationship. In general terms, the mental health clinician's orientation must be towards the client first, in keeping with the primary mission of the profession. We have been addressing this issue from a number of different perspectives related to leadership and authority.
These will translate into a set of six components of ethical decision making that will need to be examined in the course of any ethical decision.
These components, to some degree, can be rank-ordered in terms of their importance to the completion of the mission of the counseling process. Let's show these components, with explanation to follow.
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
Foundation Element Underlying Process: The responsibilities of the clinician towards the client, including the obligations agreed to concerning the counseling relationship
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?
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.
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 clinicians.
For instance, confidentiality, which is a key element in maintaining the integrity of the profession, is waived if the danger to the client is sufficiently grave. 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. 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 previously, these 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 your 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
As is the case with the codes of ethics, however, the model is not sufficient in and of itself to provide solutions to each and every ethical dilemma. Each of the qualitative elements in this model also have quantitative aspects that are involved in ethical decision making.
For instance, when we discuss harm to a client, how much harm are we talking about? Should concerns about harm to a client's self-esteem preclude confronting that client about self-destructive behaviors? Of course not. As clinicians, part of our work in examining complicated ethical decisions lies in evaluating varying degrees of each of our competing elements.
The clinician's leadership obligations require him/her to perform these complex evaluations on a fairly regular basis as clinical work moves forward. As we discussed in an earlier section, this requires that the clinician have a large store of information at his/her disposal in the knowledge stage of the decision process: codes of ethics, law and statutes, etc.
But of course the clinician must have even more knowledge than this. As a leader and an expert, he/she must have sufficient knowledge to anticipate the effects of various actions upon the client. This ability to predict outcomes is developed over time with experience and practice. For less senior clinicians, it can also be supplied by a more experienced colleague.
The clinician also has certain obligations to know the most current and effective skills and tools for handling complex situations, including the most effective treatment approaches currently available. Since this information is constantly changing, it means the leader must take a continuous learning approach to the profession.
This issue will come up again in a later chapter - when we look at the responsibilities of leadership as they pertain to ethical considerations. First, however, we have one more topic that must be covered in setting the stage for more detailed discussion.
One more important area remains to cover before moving on to a deeper examination of leadership and ethical decision making. This has to do with two important questions about the nature of the relationship between the client and the mental health clinician: 1) Who is the client? 2) When is the client a client? These concepts were also covered in greater detail in yourceus.com's course: Ethical Decision Making: A Primer for Mental Health Clinicians.
When there is a single, adult client, who has clearly contracted with the clinician for counseling services, ethical decisions are at their easiest in this regard.
But who is the client if the clinician is seeing a family for family therapy? Or a couple for couples counseling? Who is the client if an employee is referred by a company for a counseling session with the Employee Assistance Program: is the employee the client, or the company that pays for the services, or is it both?
When there are multiple parties involved in the counseling process, there exists the possibility of a conflict of interests between two or more of the parties involved in the ethical situation. It might transpire that in choosing a course of action, you promote the welfare and interests of one party, but harm the interests and welfare of another.
To begin this topic, a client is someone whom the clinician has agreed to see, and who has agreed to see the clinician. In the case of a minor child (or an adult who lacks the capacity to make his/her own informed decisions, and for whom a guardian has been assigned) the agreement to see the client is reached with the parent or guardian.
(There are exceptions to this that the clinician must understand. Some states allow minor children certain treatment rights under certain conditions. Some states, for instance, allow minor children (usually aged 12 or older) the right to decide to enter treatment for substance abuse without parental consent being required.)
If the client (or his/her guardian) autonomously agrees to enter into the counseling relationship, then client status is reached. If the client (or his/her guardian) does not autonomously agree to the counseling relationship, with both its rights and its responsibilities, then the person does not become a client.
Ideally, the exact nature of what this agreement for counseling means should be spelled out for the potential client prior to entering into a counseling relationship. A formal statement of understanding is a good tool for fulfilling this aspect of the counseling relationship.
At the initial point of contact, the clinician may also elect not to enter into the counseling relationship. And the clinician may specify aspects of the counseling arrangement - like how high fees are set - that result in the client electing not to enter into the counseling relationship.
This is one of the instances in which the clinician's rights to autonomy may be legitimately asserted, since the counseling relationship has not been formally entered into, and the clinician does not yet have obligations to the client's well-being that supersede the autonomy of the clinician.
Even here, however, the clinician's right to autonomy may not be asserted if in so doing it brings avoidable and significant harm to the person who has come seeking services. For instance, when a prospective client calls a clinician to seek services, obligations exist towards the safety of the client even in the course of the first phone call.
The clinician may not ethically decline to help a client find appropriate help - if the prospective client is suicidal or otherwise at risk for safety related concerns - simply because the prospective client has not agreed to the counseling relationship. Like doctors, mental health clinicians have certain professional responsibilities that affect their autonomy, sometimes in burdensome ways.
When more than one person is involved in the counseling relationship, each person receiving counseling services can be considered a client. This means that when two or more clients are equal co-clients, as in couples counseling, family therapy, or group therapy, then the nature of the counseling relationship, as well as the responsibilities and rights for each person, must be defined and clarified for each person.
There are, of course, legal exceptions to this. In some states, only the primary client is allowed client rights, including privileged communications. In fact, some state's legal statutes might rule that the presence of other persons in the counseling process may result in the loss of the right to privileged communication for the primary client!
This legal standard, of course, may not be the same as the ethical standards under which the mental health clinician operates. It is, however, important for the clinician to be clear on the legal standard for his/her state in this area, as this information must be clarified for the client or potential client prior to any autonomous decision to enter into treatment.
From a purely ethical standpoint, there are clear obligations to do no harm to co-clients and even adjunct parties to counseling, as well as obligations to promote the well-being and autonomy of the adjunct parties. Even more clearly, there is an ethical responsibility for the clinician to define the nature of the relationship for all the parties involved in the session.
In practical terms, this means that a clinician must consider the harm that can be done to co-clients or parties adjunct to the counseling when utilizing strategies designed to promote the well-being of other clients. For instance, interventions that involve the confrontation of family members by the primary client in a counseling session, present serious ethical problems if the rights and autonomy of the parties being confronted are not considered.
This whole area can present particular complexities when the primary client is a child, or an adult who has been declared incompetent. In such cases, the parent or guardian has a right to autonomy in making treatment decision on behalf of and for the benefit of the client.
In such cases, the parent or guardian is the defined client in terms of decisions about client autonomy. (This is because the primary client under such circumstances is not viewed as being capable of handling the responsibilities of autonomy, so is therefore not completely accorded the rights of autonomous decision making.)
But the rights of the minor child or incompetent adult to autonomy are not completely denied, nor the rights of the parent or guardian to autonomy completely protected.
The child or incompetent adult's rights to be protected from harm supersedes the guardian's right to autonomy - hence the existence of protective services in the states - and the child or incompetent adult's rights to have his or her welfare and autonomy promoted operates, in many instances, at least on an equal footing with the guardian's right to autonomy.
The presence of multiple clients, or even multiple participants, in the counseling process obviously requires that the clinician engage in a process of evaluating numerous competing interests in coming to a decision about ethical choices.
The next question has to do with when a client is a client. This question has, to some degree, been defined with regard to the beginning of the counseling relationship. There are, however, two other points at time for which some definition is required.
The first of these other points in time is while the counseling relationship is occurring - but outside the defined counseling hours during which the counseling is being performed by the clinician. This is to ask if the client is still a client if the clinician meets him or her in public or in other personal settings. To what extent does the clinician have obligations to the client that supersede the counselor's right to privacy or autonomy outside the counseling office?
Like doctors, safety personnel and other professionals with special rights and responsibilities towards the public, there are special obligations in this area that are expected from those who work in the profession.
Prior to being able to exercise his/her autonomy, the clinician must take into consideration whether his/her actions will have an impact on the client that is in any way harmful, will harm the autonomy of the client, or will be detrimental to the counseling profession as a whole. This determination must also include consideration of whether any actions will lead to harm coming to the greater public with whom the client or the clinician interact.
In practical terms, this covers many areas. The special needs presented by suicidal and homicidal clients are the most self-evident impositions on the clinician's right to private time. Most clinicians are also aware that there are requirements concerned with protecting the confidentiality of the client when meeting him or her in public.
However, this arena also includes obligations to protect the well-being, including the emotional well-being, of the client during chance encounters outside of the office.
While this is an imposition upon the free time and autonomy of the clinician, the client's rights to protection from harm, and promotion of well-being and autonomy, outweigh the clinician's right to autonomy.
This does not mean that the clinician must stand in public and engage in an impromptu counseling session. The client's autonomy includes responsibilities to work within the confines of the defined counseling relationship. This means according to the hours in which the counseling sessions are scheduled.
The responsibilities of autonomy for the client support the rights of the clinician to take care of his or her personal life in a satisfactory manner. If the clinician has done a good job of clarifying these matters with the client at the time the relationship is entered into, this whole area proceeds much more smoothly.
The other time that is covered in this area is after the counseling sessions have been completed, and a termination process has been completed. At what point in time after this termination process does a client stop being a client.
Some of the counseling professions clearly define time limits past which time the clinician is exempt from responsibility towards the client. Other counseling professions state that there is no time limit to the clinician/client relationship, and that responsibilities and obligations to the client exist towards infinity. Which is right?
It is important for the clinician to be aware of the code or codes of ethics that are applicable to him or her in this regard. The various codes of ethics represent the most up to date consensus that has been reached by the bodies involved in studying and evaluating ethical decisions for the specific groups of mental health clinicians covered under the various codes of ethics.
The fact that different groups can come to different conclusions is understandable, given the complexity and difficulty of the issues involved in resolving this question. Following the code of ethics for your group keeps you compliant with accepted practice principles, and protects you from liabilities.
While following the code of ethics defined by one's professional group, however, it is also important to understand the principles involved in making these decisions. The decisions in this regard bring us back to the ethical decision making process.
Will changing the nature of the clinician/client relationship cause undue harm to the client? Will it unduly prevent the welfare and interests of the client from being promoted if all the protections of the clinician/client relationship are withdrawn? Does it hinder the autonomy of the client to assume that he or she can never be considered to be on equal footing with the clinician, capable of making autonomous decisions about being the counselor's friend, or even romantic partner?
What if the former client becomes so healthy that he or she might make a good mentor, or even a good clinician, for his or her former therapist? Is not the purpose of counseling to aim for such results?
In fact, even in the more stringent codes for mental health clinicians, it does state that there may be exceptions to the strict interpretations of "once a client, always a client". The burden, however, is clearly upon the clinician to examine carefully the rationale for making an exception - to make sure that the client's interests and well-being are being protected.
On the other hand, what if a client is so disturbed that - years after a formal termination - each chance meeting is viewed as being of great importance to the client's state of well-being? In such cases, the obligations towards the client - and the integrity of the profession - might require that the client be treated with great care and respect even if it represents a burden to the clinician. This obligation may even continue until the client - or the clinician - is deceased.
It may be relevant to remind clinicians that the right to privileged information from psychotherapy continues well past the point at which a client is terminated from treatment. The right to privileged information, where it exists for clients in their respective states, continues even after the client dies.
These complex ethical issues show why it is important for clinicians - from their leadership position - to have such a thorough understanding of all aspects of ethical decision making. On one end of the spectrum, this involves thoroughly knowing and understanding the codes of ethics, laws and statutes related to these difficult areas.
At the other end of the spectrum, it means knowing how to follow the principles of ethical decision making, and the decision tree, as closely as possibly, looking to follow the ideal spirit of the ethical decision making process, even when the decisions that arise from this process in some way depart from a strict reading of the codes of ethics.
As a leader, the mental health clinician is expected to be able to work at both ends of the spectrum, as well as everywhere in between. This means a thorough understanding of the codes, the laws and all the other information that experts must know to perform their jobs at a high level of ethical knowledge.
This also means a deep understanding of the ethical decision making process, including knowledge of the stages, the competing interests and principles involved in ethical decision making, and how to identify, evaluate and act on this information in day to day clinical practice.
For clinicians who wish to pursue further the ethical decision making process, all of the information that has been covered in brief in this section is discussed in greater detail in yourceus.com's introductory course to ethics, "Ethical Decision Making: A Primer for Mental Health Clinicians".
The next step in this process of examining ethical and leadership issues, however, will move beyond the foundation elements.
At this point in the training, the trainee should be able to answer the following questions:
What are the competing elements and principles of the ethical decision making process? Which principle should be examined first, and which principle generally comes last?
When do obligations begin that require the clinician to protect the safety of the client?
Who should be accorded informed consent when meeting with multiple clients and/or adjunct parties to a therapy session?
What general responsibilities for maintaining the integrity of the profession exist when clients are encountered outside of therapy sessions?
What determines how long a client is considered a client after treatment is terminated?