ETH8585 - SECTION 2: THE STAGES OF ETHICAL DECISION MAKING
Stages of Ethical Decision Making
When you approach an ethical decision, there are several steps or stages involved in making a good decision. This chapter will be concerned with looking at these stages in some detail.
The Steps or Stages of the Ethical Decision Making Process
The Knowledge Stage
The Identification Stage
The Evaluation Stage
The Selection Stage
The Assessment Stage
The Adaptation Stage
Stage One: The Knowledge Stage
The first stage is the knowledge stage. It begins before you are faced with the ethical decision. As is implied by the name, this stage is concerned with knowing a number of things that are involved in the ethical decision making process.
Item 1: Code of Ethics
The first thing to know, not surprisingly, is the ethical code or codes for your profession. Most mental health clinicians are familiar with both the code developed by the national organization for their profession, and a state code associated with the licensing or certification board. These codes are usually a very good starting point for the ethical decision making process, and may define good parameters for many, but not all, of the ethical dilemmas faced by mental health clinicians.
A surprising number of clinicians, however, are not fully familiar with the codes of ethics under which they are supposed to work. The codes are evolving entities, incorporating changes in ethical thinking over time. Some clinicians do not know their codes because they have not kept up with the changes in thinking over the course of their professional career. It is important to know the present code or codes to help with making good ethical decisions.
Item 2: Laws and Statutes
The second thing that must be known is the collection of laws and statutes – at both the state and federal level – that relate to our clinical work. This includes HIPAA (Health Insurance Portability and Accountability Act), which addresses at a federal level the degree to which client information must be kept private and confidential, and the two updates to HIPAA: the HI-Tech Act and the Final Omnibus Rule of March 2013.
These two important updates, among other items, clarified how to address privacy and confidentiality when communicating with clients via smart phones, email, text and other modalities of electronic communication that were not widely prevalent when HIPAA was put into effect in 1996.
These laws and statutes address the need to protect the privacy of clients' Protected Health Information (PHI) when sending, receiving and storing electronic health information. This updated set of standards also has applications to the world of social media and the internet in general, and there are important concerns about this arena that were not present even 20 years ago.
There are amazing new capabilities for connections and social support that can be utilized to support client progress through the use of social media. However, mental health clinicians are also people with personal lives, and they may elect to use social media in ways that enrich their own person connections. This is where the role of a professional can create some disruptions to the personal life of the mental health clinicians, but with much wider distribution problems than prior to the internet era.
Mental health clinicians must be mindful at all times of how their social media activities can blur the boundaries between personal and professional lives. They need to consider the possible negative impact that social networking could have on their professional relationships. How is this possible?
First, a clinician who maintains a presence on social networking sites must clearly separate private from professional lives online. Some therapists maintain two sites: one for their private, personal relationships (friends, former schoolmates), and one for their practice (promoting the practice to attract new clients, providing information for how to access the practice, etc.) In this way, clients can access the practice information where they can learn as much about the clinician as the clinician has posted on this publicly accessible site. Meanwhile, on their personal site, it is recommended to utilize the highest, most stringent privacy settings so that the therapist’s privacy is guarded as much as possible.
However, the internet does not have infallible security features, and it is important to remember that no matter how much effort is made to maintain privacy, and even if everything is done correctly, the site might still have a security breach. In this case it is anyone’s guess how many people will have access to this “private” information. And once others outside of this security net have access, there is no control over the information that they may download.
Second, it is always good practice to discuss with clients up front 1) expectations for boundaries and 2) questions related to forming online relationships. The recommended approach is to “inform clients that any requests for “friendship,” business contacts, direct or @replies, blog responses or requests for a blog response within social media sites will be ignored and addressed subsequently in treatment, to preserve the integrity of the therapeutic relationship and protect confidentiality.” (Kolmes, Merz Nagel, and Anthony, 2011)
Because there is the potential for clients to interpret this refusal to engage in online interactions as a kind of rejection, it is a matter that must be handled with some care and preparation. Early in the formation of the therapeutic relationship, clinicians should provide to the client some education about the important purposes for retaining a professional relationship at the expense of personal interactions, and each conversation must be approached respectfully and with sensitivity.
While the maintenance of this boundary can be important for the clinician’s ability to maintain a viable private life apart from his/her clinical work, this should not be the primary element of the discussion with the client. This discussion should always be framed in terms of protecting the client’s important interests. In fact, this orientation towards the client reflects a deeper truth: the primary reason to maintain professional boundaries is to ensure that the professional relationship remains in the client’s best interest. Boundaries in helping relationships provide the structure so that there is no question about what kind of relationship it is.
With clearly outlined boundaries, a client will never confuse the therapeutic relationship with friendship or a business relationship, for example. In this way, the client improves the likelihood of gaining the maximum benefit from the therapeutic relationship, with minimal risk that the relationship will become unhelpful. Additionally, when the boundaries are crystal clear, clients are better protected from abuses of power.
This necessarily means that the professional relationship is given priority over all other relationships. Consider how damaging it could be to the therapeutic relationship for a client to see photos on a clinician’s social networking site, where the clinician is not behaving in a professional manner. If a clinician decides to maintain a presence on social media, they must remember at all times to guard their privacy by implementing the highest level of security and carefully scrutinizing all requests for access.
At a deeper level, the primacy of the clinical role also means that clinicians may have to consider imposing upon themselves a certain degree of self-censorship in terms of what they post on social media sites. Ethical conflicts might be created if a clinician chooses to post any personal information that might be deleterious for a client to see.
This is a difficult concept for most clinicians to accept. However, it cuts to the heart of some important understandings about the very nature of our profession and the ethics of being a mental health professional. The counseling profession is different from most other professions in several important - and connected - ways:
The mental health professions are defined - and thus sanctioned - as professions whose primary purpose is to promote the well-being of its clients and the public at large, not to take care of the personal or financial well-being of the clinician.
This is different than most businesses. For most businesses, the primary responsibility is to take care of the financial well-being of the business and its stakeholders. In most businesses, the well-being of the client does not really come first. Companies may lose customers for not looking out for the interests of the client, but they will not lose their right to engage in that business. Clinicians can. Every year clinicians face ethics sanctions for honoring their personal lives ahead of their professional obligations.
This speaks to a fundamental conflict that not only affects the study of ethics, but, more importantly, affects the practice of ethics. In a situation where there is ethical conflict, how much does the clinician need to put aside his or her own interests, including the right to follow one's own values and principles, or pursue a robust personal life, in order to sufficiently take care of the best interests of the client and the public? Even clinicians who feel they have a clear understanding of ethics, can find themselves in very confusing territory.
Because the government - at both the state and federal level - and the various counseling professions work together to oversee the definition of who can practice, they also involve themselves in the clarification process around this important issue for mental health clinicians. In fact, the state and federal governments continue to clarify new understandings about what constitutes legal and ethical behavior, and make demands upon counselors to know these changes and apply them in their practice.
Clinicians also need to be aware of two other important federal statutes that deal with privacy and confidentiality: 42 CFR, part II and 34 CFR, Part 99, also known as FERPA (Family Educational Rights and Privacy Act). 42 CFR part II provides special privacy protections for substance abuse clients and clients who are HIV positive. FERPA clarifies the guidelines for maintaining educational records, including records maintained by clinical professionals, social workers and psychologists who work in educational settings.
There are similarities between HIPAA guidelines and FERPA guidelines, but there are also differences between the two. There are also occasions where there is some uncertainty about whether HIPAA is the application statute or FERPA – or both. Clinicians who work in school settings need to have a solid understanding of FERPA and how to apply it.
On the other hand, all clinicians need to have a thorough grounding in HIPAA and the two updates to HIPAA in order to be prepared to operate ethically in the 21st century. As these are federal statutes, they are applicable in all 50 states, the District of Columbia and other US territories where federal statutes apply. A very useful web site for keeping up to date with HIPAA is the HIPAA Survival Guide web site found at: www.hipaasurvivalguide.com.
There are also state laws and statutes, as well as rules enacted by the state board responsible for supervising the mental health professions, that clinicians must understand in preparation for remaining ethically compliant. These state statutes may have some areas of overlap from state to state, e. g., most states make clinicians mandatory reporters of child and elder abuse, but there are also numerous areas where state laws may be significantly different.
For instance, many states have statutes in the books that address the responsibilities of clinicians in duty to warn situations, along the lines of the California case known as Tarasoff versus Regents of the University of California. The specific statute written pursuant to this case – which is actually only in effect in the state of California – requires that clinicians issue an immediate warning to any person against whom a client has indicated clear and imminent homicidal intent. In such cases, the state provides cover for the clinician who must violate the client’s right to confidentiality in order to issue that warning.
In California, and many other states, the state law says that the clinician must issue the warning to the person at risk. However, in other states the state law says that the clinician may issue the warning to the person at risk. In one state, Georgia, there has not been codified any law that says the clinician must or may warn the person at risk. This highlights the importance of each clinician spending some time to increase his/her knowledge of state laws, rules and statutes.
There are also other important areas of law that come into clinical work and which may be different from state to state. Some states severely limit the degree to which children and adolescents can have any say in their treatment, while other states allow for some discretion on the part of the clinician about allowing their client some treatment and privacy rights before reaching the age of majority.
There are also differences from state to state in terms of what is considered to be the age of consent, the age at and circumstances under which a child may be married with and without parental consent, guidelines for emancipation of a minor child, rights of adjunct parties to treatment, how long to keep clinical records, and other areas too numerous to fully cover in this course.
Any clinician who wishes to practice in a consistently ethical manner must undertake some study in the laws and statutes related to clinical work in the state or state(s) in which practice is occurring. Furthermore, because technology now exists to practice via video-teleconferencing from one state to another, clinicians so doing must be prepared to examine the laws in any state from which they are drawing clients.
Item 3: The Moral, Ethical and Legal Dimensions of Practice
Another important piece of knowledge that must be understood in the knowledge stage is the difference between the dimensions of practice in any given situation in which ethical problems may exist. These three arenas are the legal, the moral, and the ethical. Let's look at these three areas to understand the differences between the three.
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.
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.
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 emerges - 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.
Item 4: Principles and Interests that Interact in Ethical Decision Making
The next thing that the clinician must know is the collection of principles and interests that are involved in the ethical decision making process. The codes of ethics are derived from a study of these principles and interests. However, because these principles and interests interact in complicated ways, the codes of ethics are not prepared to fully resolve all ethical decisions for the clinician.
The clinician must have his or her own understanding of these principles and interests over and above the codes in order to answer some of the more complicated ethical dilemmas he or she might face in the course of a professional career. Because a detailed study of the principles and interests involved in ethical decision making is contained in the next chapter of this training, we will not discuss it further here.
Item 5: The Ethical Decision Making Process
The next item that must be known by the clinician is how to engage in an ethical decision making process, pulling together all of the pieces that must be organized and addressed in order to come to a good ethical decision in any situation where there is an ethical dilemma to be faced. This process will incorporate 1) the stages of ethical decision making, 2) all the relevant laws, statutes, code items and other items that must be known and understood to keep the clinician compliant, 3) how to define the nature of the ethical dilemma that is being faced by the clinician, 4) relevant models of ethical decision making that are considered best practices within the profession, and 5) how to pull all of this information into a well-considered resolution to the ethical dilemma the clinician is facing.
Item 6: One’s Self
The other key item a clinician must know in the ethical decision making process is oneself: one's biases and prejudices, one's blind spots and trouble spots, and situations in which self-interest will make it hard to make the right ethical choices.
Apart from not fully understanding the code of ethics, this area is the most likely to cause the clinician to make poor ethical decisions.Clinicians, like all other people, will at times be confronted by their own tendencies to engage in decision making based upon their emotional needs and impulses, instead of a full and clear reckoning of the issues involved.
The call of self-interests clouds good judgment, whether the call is set in motion by one's attraction to a client, the promise of improving one's financial situation, or fatigue and burn out. Clinicians are intimately involved in the business of helping other people know themselves, bringing forth clarity out of the confusion.
This same process of seeking clarity must be turned on oneself if the clinical professional wishes to work at the highest level of ethical decision making.
Stage Two: The Identification Stage
The second step or stage is the identification stage. There are three important things to identify in this stage: 1) who the client is; 2) the various ethical principles and interests in operation within the actual situation that is before the clinician; 3) potential options for solving the problem.
There will be more detailed study of these items in later chapters.
It is important to identify all the principles and interests at stake in every aspect of the situation, as well as in each of the potential options for resolving the situation.
This identification process is a necessary precursor to the next stage in which the clinician must evaluate which principles and interests carry the most weight in terms of reaching a good ethical decision for that situation.
Stage Three: The Evaluation Stage
The evaluation stage is next. It is concerned with taking the principles and interests that have been identified as being at stake in the situation, and evaluating which are the most important to consider.
This will incorporate knowledge of the codes of ethics, and understanding of the principles and interests themselves.
The evaluation stage is also concerned with evaluating the options for resolving the situation. There may be a limited number of options available to the clinician, as is the case in many counseling situations.
In other cases, there may also be a great number of possible solutions to the ethical problem. The more options that are available, the more work is required of the clinician to evaluate each option fully.
However, it is also true that the more options the clinician examines, the wider is the range of possibilities for finding an option that offers the best balance of all the principles and interests at stake, including those which support and protect the interests of the clinician.
In the evaluation stage, it is important that the clinician be completely clear about how his or her personal self-interests, biases, emotional reactions and blind spots are being factored into whatever options are being considered.
Where such clarity does not exist, it is often helpful for the clinician to seek a consultation from another trusted professional, who can lend an objective perspective on the situation.
In still other instances, it must be determined whether the client can and/or should be brought into the process of evaluating the ethical situation.
While this is not an invitation to transfer responsibility for these difficult decisions to the client, the client's input can often be helpful in keeping clear the real potential outcomes from some of the decisions to be made.
At this stage of any clinical intervention, the clinical and ethical components of the clinician’s actions will often overlap.
At times, there will be an easy convergence, and the clinical work will be fully compatible with the ethical considerations. However, this will not always be the case. There may be complicated instances in which the clinician may need to choose between following professionally defined ethical guidelines and doing what is best for the client.
This can be particularly complicated in situations in which the client comes from a culture other than the dominant culture. Ethical codes, which are connected to legal and moral systems of belief in complex ways, have arisen from ideas and beliefs that hold sway in Western culture.
While professional codes of ethics make note of the need to consider cultural difference in clinical work, there are times when the clinician will be forced to choose between respecting the client’s cultural values and beliefs, and operating in a way that is consistent with their own profession’s code of ethics and the ethos from which that code arises.
This issue represents one of the most difficult areas within the arena of ethical decision making and cannot be covered in full detail here. For clinicians who wish to engage in a fuller examination of this subject, we recommend yourceus.com’s course entitled, “Cultural Diversity, Value Conflict and Complex Ethical Decision Making for More Senior Clinicians”. This course should be sometime in 2005.
Stage Four: The Selection Stage
The fourth stage or step is the selection of the best option or solution, and the putting of the option or solution into effect. This is the point at which the world of the abstract and theoretical meet the world of real life consequences and effects.
If the clinician has selected well, the choice will hopefully operate effectively in the real world. To assure that this is the case, the clinician will continue this process with the two final stages.
Stage Five: The Assessment Stage
The fifth stage is the assessment stage, in which the clinician assesses the real life effects of the selection that has been made to solve the ethical dilemma.
The real life effects must be evaluated both from the perspective of the clinician and the ethical obligations the clinician holds, and from the perspective of the client, whose life will be affected by the ethical choice that has been made.
If the results or consequences of the selection have not led to the anticipated resolution of the problem, the clinician moves to the last stage or step of this process.
Stage Six: The Adaptation Stage
The last stage of this process is the adaptation stage. In this stage, the clinician will look to adapt the selection or solution of the ethical dilemma by refining it, or by returning to the evaluation and selection stages to find and choose a better solution.
This staged process will become clearer as we look at an analysis of the scenarios. With this section completed, we will now turn to an examination of the principles and interests at stake in the decision making process.