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ETH8385 - SECTION 5: 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. Mental health clinicians who are willing to work from a position of leadership must have a great deal of clarity about these principles and interests when confronting complicated ethical situations.

First, they must be able to differentiate three separate - but connected - arenas that professionals must consider when they are engaged in complex decision making. These three arenas are the legal, the moral, and the ethical. Let's look at these three areas in diagrammatic form.

Moral

Pertaining to personal behavior as measured by prevailing standards of behavior as defined by a specified (usually spiritual) group.

Consequences for moral lapses are generally the domain of individual and group conscience.


Ethical

Pertaining to accepted principles of right and wrong as defined by a specified (usually professional) group.

Consequences for ethical lapses are generally the domain of the profession and keepers of the profession.


Legal

Pertaining to accepted principles of right and wrong as defined by the law, rather than by equity (fairness, justice impartiality).

Consequences for legal lapses are generally the domain of the legal system.

 

It is possible for a clinician to act in a manner that is legal, but not ethical; or ethical, but not moral; or moral, but not legal or ethical.

Since, these three different dimensions in decision making are mentioned in codes of ethics for mental health clinicians - sometimes on the same page, within the space of a few paragraphs, it may be helpful to examine the differences. This will further our understanding of how leadership is involved in ethical decision making, as we will see later.

Let's start with the legal dimension of decision making. Laws are defined by people in legislative positions, and courts (and juries) that interpret and issue rulings based upon their understanding of what those laws mean. The laws are not necessarily written by people who are most knowledgeable about a subject, nor by people who are interested in being fair and equitable in writing the law.

As we know from the history of the civil rights movement, laws, in fact, can be written and enforced in ways that are unfair and inequitable. Conversely, some very moral and ethical people have expressed their moral and ethical stances by breaking the law.

The law is designed to be fluid and changing over time, but fixed and certain at any specific point in time. Law, in fact, oftentimes struggles to keep up with changes in ethics and morals. Leaders who are involved in helping ethics and morals to progress forward sometimes find themselves pushing the boundaries of the law - until the law can be rewritten to reflect the changes in understanding.

This tension exists in the field of mental health in many areas concerned with ethical behavior. We will see some of these tensions as we analyze our scenarios.

The second dimension we will look at is the moral dimension. The moral dimension is deeply involved in helping to shape both the legal and the ethical dimensions. Many laws, in fact, represent an attempt to codify and enforce commonly accepted moral understandings.

Ethical standards, like laws, are also at least partially derived from commonly accepted moral ideas about what is right and wrong behavior, but typically within areas relevant to specific professions.

The important feature to know about the moral dimension, however, is that it is personal in nature. Both legal and ethical lapses can set in motion the external imposition of consequences. Moral lapses that do not also break the law or violate ethical standards will not provoke any externally imposed consequences. The consequences for moral violations will play out between the person and his/her individual conscience.

This does not mean the moral dimension is less significant. In fact, the moral dimension is usually the dimension out of which leadership and positive change emerge - bringing both the legal and the ethical dimension to more evolved states of being.

The difficulty, of course, is that the moral dimension is personal in nature in negative ways, as well. When one's own personal moral standards are less evolved than the prevailing legal and ethical standards, then this moral dimension works to sabotage the establishment of better legal and ethical standards, instead of an element that leads law and ethics towards a better place.

The proponents of segregation earlier in this century, for instance, based many of their positions upon a moral code that lagged behind changes in the prevailing social norms and standards.

This issue leads, of course, to very tricky ground. Most persons who have deeply held moral standards feel that these standards are held for the right reasons, not the wrong ones. When they are right, the society at large benefits from their unwillingness to bend; when they are wrong, society is damaged by their inflexible attitude towards change.

The essential question in this issue, of course, is - what is right? This is not an inconsequential question for the mental health profession. It is deeply involved in the decisions that are made about the last of our three dimensions - the ethical dimension.

In general terms, each profession wrestles with the question of what is right on an ongoing basis. The governing bodies in each of the mental health professions attempt to create workable definitions of right and wrong behaviors in important areas related to the profession.

When individuals depart from the standards set by the profession - even if the departures are based upon deeply felt moral reasons - the profession may choose to implement sanctions against that individual. The individual must evaluate this potential risk when a moral decision is made that is in conflict with the ethical standards set forth by the profession.

Each profession, of course, attempts to make their difficult judgments about which behaviors are right or wrong in well-reasoned ways. It is a complicated process which may involve seeking consensus from a number of members of the profession, guidance from core groups of wise and experienced leaders, and input from relevant outside parties who have a stake in the outcomes of these decisions.

It is neither a perfect nor an easy process, and the conclusions that are reached are often neither clear nor fixed. This leaves individual clinicians room for both flexibility . . . and uncertainty.

This sets the stage for opening some discussion on a concept that is essential to both ethical decision making and leadership: humility.

Because these complicated decisions occur in complex processes in which individuals, professions, and a society at large are weighing legal, moral and ethical aspects of each situation, it is sensible for all parties to approach the decision making process with a certain measure of humility and open-mindedness.

There is in humility a willingness to acknowledge that one does not have all the answers, as well as a willingness to be open to feedback from others who may help define the right decision.

There is also, in humility, a willingness to suppress one's own personal agenda - to accept that there may be things of a higher nature than the self, including a greater good that asks that the self be put aside. This, as we will see, is an essential aspect of leadership. This concept should also be familiar to mental health clinicians, although in another form.

The suppression of one's own personal agenda for the fulfillment of a more important mission is related to the concept of countertransference. Ethical practice requires that mental health clinicians have - as a primary purpose - an orientation towards forwarding the mental health of their clients, and keeping their own emotional agenda under control so that it does not interfere with this primary mission.

If we are to practice ethically, then, we must be careful - and humble - in terms of inflexibly placing our own moral codes above the primary goals and purposes of the business in which we are engaged.

This is because one's own moral code is tied to a personal agenda - held in place by our own personal values, and subject to whatever limitations we may have in our own ability to see and understand the great expanse of a very complicated universe.

The mental health professions involve working with other people - who may see and understand the world very differently. Our own personal values and agendas must, therefore, be applied very carefully and very humbly.

While, at a personal level, clinicians may strive to fully integrate their deeply held beliefs with their actions, at a professional level, we will almost always be split. We usually will not be able to hold absolutely firmly to our own moral code, and simultaneously stay absolutely focused on the well-being and purposes of the client.

This holds profound complications for the responsibilities within the mental health field related to ethical considerations.

Parties involved in the decision making process

In addition to the moral, ethical and legal dimensions that create input systems for the process of ethical decision making, you also have a variety of parties whose interests create other sources of input to the ethical decision making process. The code of ethics is a profession’s compilation of its best attempt to balance the needs and demands of these interested parties. Let’s look at these parties:

The public (through its legislative representatives)
The profession (through its representative organizations)
The clinician
The client

This process of balancing interests incorporates input from the legal dimension, through inputs 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.

As we have already noted, 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 course. It is a topic that will be examined in more detail in a course for senior clinicians set to debut in the middle of 2006.

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.

Post-test Preparation: Review questions

At this point in the training, the trainee should be able to answer the following questions:

What are the essential differences between the legal, the moral and the ethical realms and why is this important for clinical practice?

What four major groups have input into decisions about the legal, ethical and moral realms?

What problems can arise from placing our individual moral code above the ethical framework of our profession?

Why is humility considered important to ethical practice?





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